Our organization (LLC on OSNO) owns a property complex consisting of 10 buildings. The residual value of each building is approximately 2,000,000 rubles excluding VAT. Now a member of our company, who owns 100% of the authorized capital, has filed a lawsuit against our organization in the Arbitration Court. This participant issued 60,000,000 rubles in interest-free loans to our company. The delay in loan repayment is 2 years. We believe that the participant will win the trial. Can we pay him with property, that is, due to the lack of funds, according to the decision of the Arbitration Court, will we give him the buildings and other property? Will a transaction for the alienation of property in connection with a decision of the Arbitration Court be subject to VAT?

Yes, you can pay off your debt with property. To do this, you should enter into a compensation agreement, and reflect the disposal of property as an ordinary sale.

In this case, you will have to pay taxes, as with a regular sale. After all, having issued a compensation (by paying with property), you transfer ownership rights to the counterparty. Accrue VAT based on the price of the property, which was specified in the compensation agreement (subclause 1, clause 1, article 146 of the Tax Code of the Russian Federation). Indicate the same amounts in the invoice for the counterparty. And the income from the sale of real estate as compensation should be reflected in the amount of the repaid debt without VAT. Include the residual value of the transferred fixed asset according to tax accounting data in expenses (subclause 1, clause 1, article 268 of the Tax Code of the Russian Federation).

Compensation

Article 409

If the company does not have enough money in its current account to pay the supplier, then it can transfer goods, materials or, for example, equipment as payment. It may seem that such a transaction is similar to an exchange agreement (barter). However, it is not.

In barter, the parties initially enter into an agreement involving the exchange of goods or services. And in this case, the company had to pay the cost of goods or services in money. And after the conclusion of this agreement, that is, later, the parties agreed on the transfer instead of compensation money.

Note that if, according to the contract, the company had to, on the contrary, supply goods or provide services, then compensation can be paid in money.

If the counterparty is not against this method of payment, you need to draw up a compensation agreement (sample below). In it, be sure to indicate information about the initial agreement with the counterparty and the amount of debt under it. And also the amount of compensation. Moreover, the book value of the compensation and the amount of debt may differ.

State in the agreement whether all obligations of the debtor will be considered paid when the compensation is transferred.

In this case, as a general rule, it is considered that when the compensation is transferred, the debtor has fully fulfilled his obligations (clause 4 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 21, 2005 No. 102). Even if the cost of compensation is less than the debt under the contract.

Compensation agreement using the example of transfer of goods as payment for other goods, work or services

For example, if the company’s debt is 500,000 rubles, then it can be agreed that in exchange for this debt the company transfers to the creditor goods that are recorded at a cost of 350,000 rubles. Another option, more beneficial for the creditor, is to stipulate in the agreement that the transfer of goods only terminates the obligation in the amount of 350,000 rubles.

Or, conversely, the cost of compensation may exceed the amount of debt.

However, the safest option is to transfer goods whose value is comparable to the amount of accounts payable to the counterparty. So that the tax authorities do not have questions during the audit.

Otherwise, inspectors may consider that the creditor or debtor has received income that must be taken into account when calculating income tax. Thus, tax authorities can consider the amount of excess of the cost of goods over the amount of debt as income to the creditor in the form of property received free of charge (clause 8 of Article 250 of the Tax Code of the Russian Federation). If the debt is greater than the cost of the compensation, inspectors may assess additional tax to the debtor.

In addition, document in the document when and in what order the company must provide compensation to the supplier.

As a general rule, a compensation agreement terminates all obligations of the debtor under the contract, including the payment of a penalty. But other conditions can be specified in the agreement. For example, indicate that the compensation is transferred only to account for the debt for payment for goods. And the debtor is obliged to pay additional fines in cash (clause 3 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 21, 2005 No. 102).

Since the creditor agreed to receive compensation, from the moment the agreement is signed, he has no right to demand that the company fulfill the initial obligation under the contract. In this case, payment of money. Therefore, by concluding a compensation agreement, a company can actually receive a deferred payment for goods. For example, if the compensation must be transferred within a month after the agreement is signed. However, the creditor will have the right to demand payment for goods if the company does not transfer compensation within the period specified in the agreement (clause 2 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 21, 2005 No. 102).*

When transferring compensation, you need to issue a delivery note or other primary documentation.

How does compensation affect tax calculation and accounting?

VAT must be charged on the cost of the compensation, that is, on the cost at which you transfer the goods under the agreement (clause 1 of Article 146 of the Tax Code of the Russian Federation). An invoice must be drawn up for the same amount. That is, the same rules apply as for the regular sale of goods.

In tax accounting, the company reflects income from the sale of goods. It will be equal to the amount of debt for which the company transfers compensation, excluding VAT. At the same time, the value of the property at which it was registered can be included in expenses (clause 1 of Article 268 of the Tax Code of the Russian Federation).

The debtor’s obligation is considered terminated not at the time of signing the compensation agreement, but on the date of transfer of compensation (clause 1 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 21, 2005 No. 102). Therefore, it is necessary to take into account the payment of accounts payable only when the company transfers the goods to the counterparty. *

Example. How can a customer take into account compensation?

The company's debt for services rendered amounts to 236,000 rubles, including VAT - 36,000 rubles. In exchange for this debt, the organization transfers goods to the counterparty. Their cost according to accounting data is 183,000 rubles. The accountant took into account the transfer of compensation with the following entries:

DEBIT 60 CREDIT 90 subaccount “Revenue”
- 236,000 rub. - income from the sale of goods is taken into account;

DEBIT 90 subaccount “Cost of sales” CREDIT 41
- 183,000 rub. - the cost of goods transferred as compensation is written off;

DEBIT 90 subaccount “VAT”
CREDIT 68 subaccount “VAT calculations”
- 36,000 rub. - VAT is charged on the sale of goods.

Now let's look at the accounting of the creditor company. There is no need to recalculate VAT accrued on the date of shipment. And the input tax on goods received can be deducted based on the invoice received from the counterparty.

Revenue from the sale of goods does not need to be adjusted. The received inventory items must be taken into account at a cost equal to the amount of debt excluding VAT (Clause 2 of Article 254 of the Tax Code of the Russian Federation).

Example. How can a performer take compensation into account?

Let's use the conditions of the previous example. In the accounting of the executing company, the receipt of compensation can be reflected by the following entries:

DEBIT 41 CREDIT 60
- 200,000 rub. - goods were received as compensation;

DEBIT 19 CREDIT 60
- 36,000 rub. - VAT on goods received is taken into account;

DEBIT 68 subaccount “VAT calculations” CREDIT 19
- 36,000 rub. - accepted for deduction of input VAT;

DEBIT 60 CREDIT 62
- 236,000 rub. - reflected the offset of the cost of goods received against the buyer's debt.

Having repaid the loan with property, taxes must be charged as upon sale

Asks Elena Konopleva,

Ch. accountant

We agreed on compensation for our loan debt. And they transferred the real estate to the creditor. Will we have to pay income tax and VAT on such a transaction?

Answers Boris Samoilov,

expert of the magazine "Glavbukh"

Yes, you will have to pay taxes as with a regular sale. After all, having issued a compensation (by paying with property), you transfer ownership rights to the counterparty. The implementation is here.

Accrue VAT based on the price of the property, which was specified in the compensation agreement (subclause 1, clause 1, article 146 of the Tax Code of the Russian Federation). Indicate the same amounts in the invoice for the counterparty. And the income from the sale of real estate as compensation should be reflected in the amount of the repaid debt without VAT. Include the residual value of the transferred fixed asset according to tax accounting data in expenses (

ON THE. Matsepuro, lawyer

Repayment of a loan with property to an individual participant

Registration and accounting of compensation for an organization under the general taxation regime

Individual participants quite often lend money to the companies they create. And if the “daughter” is experiencing financial difficulties, then the participants sometimes agree to repay the loan not with money, but with some of its property (for example, goods or fixed assets (FPE) - a car, residential or non-residential premises, etc.). Let's find out how to document this and how to carry out this operation in tax and accounting when applying the general taxation regime.

Compensation agreement

Having received money under a loan agreement, you must also return the money And clause 1 art. 807 Civil Code of the Russian Federation. If, by agreement with the participant, you return something else to him, then this is already providing compensation. O Art. 409 Civil Code of the Russian Federation. Any property can be transferred as compensation. In this case, you need to enter into a written agreement with the participant, which must indicate:

• a loan obligation terminated by the provision of compensation, that is, the details of the loan agreement and the amount of debt repaid under it (for example, the entire loan amount together with accrued interest, if the agreement is an interest-bearing agreement )Art. 409, paragraph 1, art. 432 Civil Code of the Russian Federation.

We warn the lawyer

To ensure that the transfer of compensation does not lead to problems with calculating VAT, the compensation agreement must indicate that the value of the transferred property already includes tax. And it is better to allocate the amount of VAT.

By the way, if you do not indicate in the agreement that by providing compensation the debt is repaid only in a certain part, then the loan obligation will cease completely (along with the interest accrued on it ). Moreover, even if the value of the property transferred as compensation is less than the amount of the debt;

• property transferred as compensation, its value including VAT (equal to the repayable amount of debt), the procedure and timing of its transfers And Art. 409, paragraph 1, art. 432 Civil Code of the Russian Federation; Resolution of the FAS VSO dated January 15, 2004 No. A74-2456/03-K1-F02-4790/03-S2.

If these conditions are not present in the agreement, it may be considered not concluded.

We warn the manager

You should not overestimate or underestimate the value of property transferred as compensation. Such a transaction may attract the attention of controllers, and they will charge us additional taxes. Moreover, the organization and the participant can be recognized by the court as interdependent persons And clause 2 art. 20 Tax Code of the Russian Federation.

If you transfer real estate to a participant as compensation, then the compensation agreement itself does not need to be registered with the Rosreestr authorities. O clause 15 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 16, 2001 No. 59. You will only register the transfer of ownership of the property, which will take place at the time of signing the transfer and acceptance certificate And clause 1 art. 131, paragraph 1, art. 164 Civil Code of the Russian Federation;.

The property transferred as compensation is assessed by you and the participant by agreement Yu Art. 409, para. 1, 4 tbsp. 421, paragraph 1, art. 424 Civil Code of the Russian Federation. However, it is better that its value does not deviate from the market price by more than 20%, otherwise the tax authorities will be able to charge you additional taxes and penalties. And clause 1, sub. 4 clause 2, clause 3 art. 40 Tax Code of the Russian Federation; Letter of the Ministry of Finance of Russia dated March 18, 2010 No. 03-11-06/2/38.

The agreement can be drawn up like this.

REMOVAL AGREEMENT

Moscow

Kirpichnikov Ivan Vasilievich, hereinafter referred to as the “Creditor”, on the one hand, and LLC “Your House” represented by the General Director Derevyankin Alexey Nikolaevich, acting on the basis of the Charter, hereinafter referred to as the “Debtor”, on the other hand, have entered into this agreement as follows.

1. The Debtor's obligation to the Creditor to repay a cash loan in the amount of 200,000 (Two hundred thousand) rubles under the interest-free loan agreement No. 10-z dated January 25, 2010 is completely terminated by the Debtor providing compensation to the Creditor on the terms and in the manner provided for in this agreement.

2. As compensation, the Debtor undertakes, within 10 days from the date of signing the Agreement, to transfer to the Lender the ownership of a VAZ 21721 “LADA Priora” car, manufactured in 2008, VIN ХTA12345678910.

3. By the time the specified car is transferred as compensation, the Debtor undertakes to deregister it with the traffic police.

4. The cost of the transferred compensation is 200,000 (Two hundred thousand) rubles, including VAT (18%) of 30,508.48 rubles.

5. The transfer of compensation is confirmed by an act of acceptance and transfer, signed by authorized representatives of the parties.

6. Addresses and signatures of the parties:

Creditor: Kirpichnikov Ivan Vasilievich, passport 4500 No. 111222, issued Department of Internal Affairs "Danilovsky" Moscow 07.20.2001, registered at: Moscow, st. B. Sadovaya, 54-132				Debtor: LLC "Your House" Moscow, Apricot lane, 32A, INN 7721234455 KPP 772101001 CEO
		I.V. Kirpichnikov				A.N. Derevyankin

When transferring a car as a compensation, the ownership of it passes to the creditor from the moment the transfer and acceptance certificate is signed, and not after registration with the traffic police. After all, it is not the transfer of ownership that is subject to state registration, but the vehicle itself O clause 3 art. 15 Federal Law of December 10, 1995 No. 196-FZ “On Road Traffic Safety”; pp. 1, 2 Rules for registration of motor vehicles and trailers for them with the State Road Safety Inspectorate of the Ministry of Internal Affairs of the Russian Federation, approved. By Order of the Ministry of Internal Affairs of Russia dated November 24, 2008 No. 1001; Decision of the Supreme Court of the Russian Federation dated August 13, 1999 No. GKPI99-566; Determination of the Perm Regional Court dated July 22, 2010 No. 33-6104.

You can enter into a compensation agreement with a participant at any time. But if you conclude it before the loan repayment deadline, and the loan agreement prohibits early repayment of the loan, then be sure to indicate in the compensation agreement that the clause of the loan agreement providing for such a prohibition is canceled. Otherwise, the agreement may subsequently be declared invalid m Art. 309, Art. 810 Civil Code of the Russian Federation; Resolution of the FAS VSO dated 03.03.2009 No. A58-2215/08-F02-573/09.

You formalize the transfer of property to a participant as compensation with the following documents, depending on the type of property being transferred:

• <если>hand over the main thing, then draw up an act of acceptance and transfer of fixed assets in form No. OS-1 or No. OS-1a (for buildings and structures )approved Resolution of the State Statistics Committee of Russia dated January 21, 2003 No. 7;
• <если>hand over goods- consignment note according to form No. TORG-1 2approved Resolution of the State Statistics Committee of Russia dated December 25, 1998 No. 132;
• <если>hand over materials- invoice in the form No. TORG-12 or No. M-1 5approved Resolution of the State Statistics Committee of Russia dated October 30, 1997 No. 71a.

Accounting for the transfer of compensation

For purposes taxation the transfer of property as compensation is recognized as a sale. That is, you reflect income and expenses from such an operation in a general manner e Art. 249, art. 268, Art. 318, Art. 320, pp. 1, 2 tbsp. 252, paragraph 1, art. 271, paragraph 1, art. 272 Tax Code of the Russian Federation.

The obligation to repay the loan participant terminates on the date of transfer of property to him, and not on the date of conclusion of the compensation agreement m Art. 409 Civil Code of the Russian Federation; clause 1 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 21, 2005 No. 102. Therefore, it is on the date of transfer of property that you receive income from its sale in the amount of the repayable loan obligations A clause 1 art. 39, paragraph 1, art. 248, paragraph 1, art. 249 Tax Code of the Russian Federation; clause 1 art. 223 Civil Code of the Russian Federation; clause 4 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 21, 2005 No. 102. From the same amount you must calculate VAT at the estimated rate and issue an invoice no later than 5 days from the date of transfer of property at subp. 1 clause 1 art. 146, paragraph 1, art. 154, paragraph 3 of Art. 168 Tax Code of the Russian Federation.

There will be no advance payment on the date of conclusion of the compensation agreement (on repayment of a cash loan by transfer of property).

You take into account expenses depending on what you transfer as compensation O clause 1 art. 268, articles 318-320 of the Tax Code of the Russian Federation. At the same time, remember that if, as a result of providing compensation, a loss occurs (the value of the property transferred as compensation is greater than the size of the obligation to be repaid), then you need to take it into account To pp. 2, 3 tbsp. 268 Tax Code of the Russian Federation; Letter of the Ministry of Finance of Russia dated January 18, 2010 No. 03-03-06/2/1:

• <если>you conveyed OS, then as part of other expenses in equal shares over the remaining useful life of the asset;
• <если>you conveyed other property, then lump sum as a loss of the current reporting (tax) period.

IN accounting proceeds from the transfer of own-produced products or goods as compensation are income from ordinary activities And pp. 4, 5 PBU 9/99 “Income of the organization”, approved. By Order of the Ministry of Finance of Russia dated 05/06/99 No. 32n. And proceeds from the disposal of fixed assets and other assets are other income of the organization And clause 7 PBU 9/99. These incomes are recognized in the same way as in tax accounting - in the amount of the repaid loan on the date of transfer of property A clause 6 PBU 9/99, clause 12 PBU 9/99, clause 16 PBU 9/99.

Accounting for expenses arising during the transfer of compensation also depends on the type of property transferred to the participant and is almost no different from the procedure used in tax accounting e pp. 5, 6 PBU 10/99 “Expenses of the organization”, approved. By Order of the Ministry of Finance of Russia dated 06.05.99 No. 33n, clause 8 PBU 10/99, clause 11 PBU 10/99, clause 16 PBU 10/99, clause 19 PBU 10/99; pp. 29-31 PBU 6/01 “Accounting for fixed assets”, approved. By Order of the Ministry of Finance of Russia dated March 30, 2001 No. 26n. The only differences that can arise are:

• due to differences in the procedure for writing off losses from the transfer of fixed assets as compensation, since in accounting such a loss is written off as a lump sum O clause 31 PBU 6/01; clause 2 art. 268 Tax Code of the Russian Federation;
• due to the use of different methods for estimating the cost of goods or own products transferred as compensation O clause 16 PBU 5/01 “Accounting for inventories”, approved. By Order of the Ministry of Finance of Russia dated 06/09/2001 No. 44n; clause 8 art. 254, sub. 3 p. 1 art. 268 Tax Code of the Russian Federation.

Features of accounting when transferring real estate as compensation

They are due to the fact that the transfer of ownership of real estate is subject to state registration And clause 1 art. 131, paragraph 1, art. 164, paragraph 2 of Art. 223 Civil Code of the Russian Federation. And the moment of sale will not be the date of acceptance and transfer of real estate, but the date of state registration of the transfer of ownership to non e clause 1 art. 39, paragraph 1, art. 249, paragraph 3 of Art. 271 Tax Code of the Russian Federation. But the Ministry of Finance believes that when calculating income tax income from the sale of real estate must be recognized when you transferred it under the transfer and acceptance certificate and submitted documents for state registration Yu Letters of the Ministry of Finance of Russia dated 04.28.2010 No. 03-03-06/1/301, dated 10.15.2009 No. 03-03-06/4/87, dated 09.10.2007 No. 03-03-06/1/653, dated 08.11 .2006 No. 03-03-04/1/733. And according to tax authorities, income should be reflected as of the date of signing the transfer and acceptance certificate And ; FAS ZSO dated 09/05/2007 No. F04-5962/2007(37734-A45-40), and the courts sometimes support them T Resolution of the Federal Antimonopoly Service of September 22, 2009 No. A65-20719/2008. Therefore, in order to avoid disputes, it is better to do so.

You also stop accruing depreciation on the transferred property after you sign the transfer and acceptance certificate with the participant. Since such an act indicates that you have transferred the property, which means you are no longer using it to generate income A clause 1 art. 256 Tax Code of the Russian Federation.

VAT must be accrued on the date of state registration of the transfer of ownership of real estate b subp. 1 clause 1 art. 146, paragraph 3 of Art. 167 Tax Code of the Russian Federation. However, the tax authorities again demand that tax be paid upon the transfer of real estate under the transfer and acceptance certificate. And Resolution of the Federal Antimonopoly Service of June 5, 2008 No. A65-4591/2007; FAS ZSO dated October 17, 2007 No. F04-7265/2007(39332-A75-34). There is no need for you to argue, so it is better to pay VAT early (on the date of transfer of real estate), then the moment of sale for income tax purposes and for VAT purposes will coincide.

Please note that the provision of land as a compensation plot is not subject to VAT. I subp. 6 paragraph 2 art. 146 Tax Code of the Russian Federation. However, you still issue an invoice, making a note in it “Excluding tax (VAT)” clause 5 art. 168 Tax Code of the Russian Federation.

IN accounting income from the sale of real estate must be recognized on the date of state registration And clause 12 PBU 9/99, clause 16 PBU 9/99. In tax accounting, if you follow the point of view of the regulatory authorities, you will take this income into account earlier. Because of the difference, you will have to record a deferred tax asset (which will be settled after the transfer of ownership is registered )pp. 8, 11 PBU 18/02 “Accounting for corporate income tax calculations”, approved. By Order of the Ministry of Finance of Russia dated November 19, 2002 No. 114n, clause 14 PBU 18/02, clause 17 PBU 18/02. Therefore, it is easier to recognize income in accounting on the date of signing the transfer and acceptance certificate And clause 6 PBU 1/2008 “Accounting policy of the organization”, approved. By Order of the Ministry of Finance of Russia dated October 6, 2008 No. 106n.

On the procedure for paying property tax by the seller of real estate, see: 2010, No. 1, p. 42

From this moment you need to stop accruing depreciation And clause 4 PBU 6/01, clause 29 PBU 6/01.

However, keep in mind: if you are transferring depreciable real estate, you will still have to use PBU 18/02. Since in accounting you recognize the residual value of such real estate as expenses on the date of its transfer, and in tax accounting - only on the date of state registration And pp. 16, 18, 19 PBU 10/99; clause 1 art. 252 Tax Code of the Russian Federation.

Example. Reflection in accounting of the transfer of compensation in the form of real estate

/ condition / 01/25/2010 LLC “Your House” received an interest-free loan from its participant in the amount of 1,000,000 rubles to its current account. for a period until October 25, 2010. On November 25, 2010, an agreement was concluded between the participant and the organization on the transfer of non-residential premises in full repayment of the obligation to repay the loan. The cost of the premises was estimated by the parties to the agreement to be 1,000,000 rubles, including VAT (18%) of 152,542.37 rubles. On November 26, 2010, the premises were transferred to the participant according to the transfer and acceptance certificate. On December 10, 2010, documents were submitted to the Rosreestr authorities to register the participant’s ownership of non-residential premises, and on January 12, 2011, the transfer of ownership was registered. The initial cost of the premises is 1,200,000 rubles, and its residual value as of the date of transfer under the act is 700,000 rubles.

/ solution / LLC “Your House” decided to reflect income from the transfer of real estate for profit tax purposes on the date of state registration, so entries were made.

Contents of operation	Dt	CT	Amount, rub.
As of the date of receipt of the loan (01/25/2010)
Loan received from participant	51 “Current accounts”		1 000 000,00
On the date of transfer of compensation - signing of the act of acceptance and transfer of real estate (11/26/2010)
The original cost of the OS has been written off		01 “Fixed assets”, subaccount “Fixed assets in operation”	1 200 000,00
		01 “Fixed assets”, subaccount “Disposal of fixed assets”	500 000,00
As of the date of submission of documents for state registration (12/10/2010)
The amount of accrued depreciation on the retiring fixed asset was written off (RUB 1,200,000 – RUB 700,000)	02 “Depreciation of fixed assets”	01 “Fixed assets”, subaccount “Disposal of fixed assets”	500 000,00
In accounting, income from the transfer of real estate is recognized later than in tax accounting, so it is necessary to reflect IT, which will be repaid at the time the income is recognized in accounting
As of the date of state registration of transfer of ownership of real estate (01/12/2011)
Loan debt was repaid by transfer of compensation	66 “Settlements for short-term loans”		1 000 000,00
Other income from the transfer of fixed assets to the participant is recognized	76 “Settlements with various debtors and creditors”	91-1 “Other income”	1 000 000,00
VAT is calculated on the cost of the transferred fixed assets	91-2 “Other expenses”	68, subaccount “VAT”	152 542,37
Other expenses are recognized in the amount of the residual value of fixed assets	91-2 “Other expenses”	01 “Fixed assets”, subaccount “Disposal of fixed assets”	700 000,00
SHE extinguished	68, subaccount “Income Tax”	09 “Deferred tax assets”	169 491,53

Loans received and repaid are not taken into account for income tax purposes. b subp. 10 p. 1 art. 251, paragraph 12 of Art. 270 Tax Code of the Russian Federation. But if you pay off the loan with compensation, you won’t be able to save on taxes. You will pay them as during normal sales.

IN ACCOUNT OF DEBT

________________ "__" ________ 20 __

Hereinafter referred to as “Organization 1”, represented by __________________________________________________________, acting on the basis of _____________, on the one hand, and _____________________________________________________, hereinafter referred to as “Organization 2”, represented by _________________________________________________, acting on the basis of _____________________, on the other hand, have entered into this agreement on the following :

1. The Subject of the Agreement

1.1. Repayment of the debt of “Organization 1” under ___________________________ (hereinafter referred to as debt), in accordance with Art. 218, 235, 237 of the Civil Code of the Russian Federation, in the amount of _______________________________________ rubles.

1.2. Repayment of debt on fines and penalties as of “__”__________20__ (hereinafter referred to as debt) in accordance with ____________________________ specified in clause 1.1. of this agreement, in the amount of _______________________ rubles through the transfer by “Organization 1” of property in the amount of debt and debt of “Organization 2”.

2. Obligations of the parties

2.1. "Organization 1" undertakes:

2.1.1. Within the period of ___________________________, transfer property totaling ________________________________ rubles to the ownership of “Organization 2” to pay off the debt on ___________________________.

2.1.2. Pay expenses related to:

• valuation of property by an independent appraiser based on an invoice issued by the management;
• state registration of the transaction.

2.1.3. Sign the act of acceptance and transfer of property, which is an integral part of this agreement.

2.2. "Organization 2" undertakes

2.2.1. Sign the act of acceptance and transfer of property, which is an integral part of this agreement.

2.2.2. Accept onto the balance sheet the property transferred by the organization in accordance with clause 2.1.1. actual agreement.

3. Payment procedure

3.1. “Organization 1” repays the debt by transferring property in the amount specified in clause 2.1.1. of this agreement, and signing the act of acceptance and transfer of property, which is an integral part of this agreement.

4. Responsibility of the parties

4.1. The parties are responsible for non-fulfillment or improper fulfillment of obligations assumed under this agreement in the manner prescribed by this agreement and the legislation of the Russian Federation.

4.2. In case of delay in the transfer of property, “Organization 1” pays a fine in the amount of __ percent for each day of delay.

4.3. “Organization 2” has the right to terminate the contract early if the organization fails to fulfill the obligations provided for in subclause 2.1.1.

5. Validity period

5.1. The agreement comes into effect from the date of signing of this agreement by its parties.

5.2. The agreement terminates when the organization fully fulfills its obligations under this agreement.

6. Actions of force majeure

6.1. Neither party is liable to the other party for non-fulfillment or improper fulfillment of obligations due to circumstances that arose against the will and desire of the parties and which could not have been foreseen or avoided.

6.2. A party that fails to fulfill its obligations under this agreement due to the circumstances provided for in clause 6.1 of this agreement is obliged to notify the other party about these circumstances and their impact on the fulfillment of its obligations under this agreement.

6.3. If the above circumstances continue for three months and show no signs of termination, this agreement may be terminated by the parties by agreement.

7. Resolution of disputes and disagreements

7.1. If disputes and disagreements arise between the parties regarding the implementation of this agreement, the parties are obliged to notify each other in writing and take measures to resolve them through negotiations.

7.2. If it is impossible to resolve disputes and disagreements between the parties in the manner provided for in clause 7.1 of this agreement, the dispute will be considered in court in accordance with the current legislation of the Russian Federation.

8. Other conditions

8.1. This agreement is drawn up in two copies having equal legal force.

Traditionally, a cash loan is repaid in cash. However, the parties may agree to repay the loan by transferring certain property. How to formalize this correctly, how to reflect such repayment in accounting and what taxes to pay?

Legal basis

The parties entered into a loan agreement. Its maturity date is coming. But the borrower does not have available funds to repay his debt. But there is property that he would like to transfer to pay off his debt. And if the lender is not against such “repayment,” then the parties draw up an agreement on compensation (Article 409 of the Civil Code of the Russian Federation). In this case, the borrower’s obligation to repay the loan ceases, but a new obligation appears - to transfer property.

Let us recall that until June 1, 2015, compensation was provided not only by transfer of property, but also, in particular, in the form of performing work (rendering services), since the previous version of Article 409 of the Civil Code of the Russian Federation contained an open list of methods for providing compensation.

It is important to know that the obligation is considered extinguished at the moment the compensation is provided, and not at the moment the agreement on it is signed. This means that on the date of concluding the agreement on the provision of compensation, the borrower’s obligation does not terminate. To terminate the obligation, the actual provision of compensation, that is, the transfer of property, is necessary. Therefore, if the loan is interest-bearing, then interest accrues until the borrower transfers the property. And if real estate is provided as compensation, then the compensation agreement is considered executed only after state registration of the transfer of ownership of the real estate to the creditor. This conclusion follows from the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated June 17, 2014 No. 2826/14 in case No. A57-2430/2011.

And one more important point. Within the meaning of Article 409 of the Civil Code of the Russian Federation, unless otherwise follows from the compensation agreement, the provision of compensation ceases All obligations under the contract, including the obligation to pay a penalty (clause 3 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 21, 2005 No. 102). This means that if the loan was interest-bearing, then with the compensation agreement all obligations are repaid, including the payment of interest. Unless, of course, otherwise provided in the agreement. Therefore, if the lender wants to receive his interest in cash, and the body of the loan itself is ready to receive “in kind,” then the corresponding procedure must be specified in the agreement. Otherwise, with the provision of compensation, the entire debt will be repaid, that is, the loan itself and the interest on it.

The value of the property transferred as compensation does not have to be equivalent to the debt under the terminated obligation (clause 4 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 21, 2005 No. 102, Resolution of the Federal Antimonopoly Service of the North-Western District dated March 16, 2012 in case No. A56- 30457/2009). Therefore, the borrower can set the value of the transferred property either higher or lower than his debt. In this case, the parties must decide whether the transfer of “unequal” property will repay the loan obligation in full? Or will it “cover” the debt only partially (in terms of the value of the transferred property)? The fact is that if this point is not reflected in the compensation agreement, then by default it is considered that the obligation is terminated completely (clause 4 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 21, 2005 No. 102).

Transferred the property? Add VAT!

The transfer of property (whether goods, products or fixed assets) as compensation is recognized as a sale for VAT purposes. Indeed, in accordance with paragraph 1 of Article 39 of the Tax Code of the Russian Federation, the sale of goods by an organization or an individual entrepreneur is recognized accordingly broadcast on a reimbursable basis ownership for goods to another person. In this case, when transferring property, a transfer of ownership occurs, which means there is a sale. And the sale of goods, including under an agreement on the provision of compensation, is subject to VAT (subclause 1, clause 1, article 146 of the Tax Code of the Russian Federation). Unless, of course, the borrower applies the usual taxation system and is not exempt from VAT under Article 145 of the Tax Code of the Russian Federation.

The tax base is defined as the value of the transferred property, calculated on the basis of prices determined in accordance with Article 105.3 of the Tax Code of the Russian Federation, and without including tax in them (clause 1 of Article 154 of the Tax Code of the Russian Federation). According to paragraph 1 of Article 105.3 of the Tax Code of the Russian Federation, prices used in transactions in which the parties are persons who are not recognized as interdependent are recognized as market prices. In fact, this means that the value of the property that the parties agreed upon, excluding VAT, should be included in the VAT tax base. By adding VAT on top (multiplying by 118%), we get the value of the property including VAT. It is this value that should be specified in the compensation agreement.

Since the transfer of property as compensation is a VAT-taxable operation, an invoice must be issued along with the transfer act. It should be registered in the sales book and then included in the VAT return.

Income tax

For an operation related to the provision of compensation to the lender, the borrower receives income from the sale (clause 1 of Article 249 of the Tax Code of the Russian Federation). Sales proceeds are determined based on all receipts associated with payments for goods sold (clause 2 of Article 249 of the Tax Code of the Russian Federation). In this case, income included in taxable profit will be formed based on the value of the property established in the compensation agreement (minus VAT). At the same time, the value of the property at which it was registered can be included in expenses (clause 1 of Article 268 of the Tax Code of the Russian Federation).

Reflected in accounting

When transferring property to a counterparty as compensation, the organization, in the generally established manner, reflects the disposal of property using account 90 “Sales” or account 91 “Other income and expenses.” Income from the transfer of property is recognized in the amount of the value of the property reflected in the agreement. The cost of the transferred property is included in the cost of sales or other expenses (if property other than products or goods is transferred).

For clarity, we will consider the reflection in accounting of transactions for the transfer of compensation using a practical example.

Example:

Financial House LLC issued Skazka LLC an interest-bearing loan in the amount of 110,000 rubles. The parties entered into a compensation agreement. As compensation, equipment is transferred at a cost of 118,000 rubles. (including VAT - 18,000 rubles). The residual value of the equipment was 60,000 rubles. At the time of transfer of property, the interest debt amounted to 8,000 rubles. and the total debt under the loan agreement is 118,000 rubles, which corresponds to the cost of the transferred equipment, including VAT.

Debit 62 (76) Credit 91

- 118,000 rub. - equipment was transferred as compensation;

Debit 91 Credit 01

- 60,000 rub. - reflects the residual value of the property;

Debit 91 Credit 68

- 18,000 rub. - VAT is charged on the value of the transferred compensation;

Debit 66 Credit 62 (76)

- 118,000 rub. - reflects the repayment of debt on a loan obligation.

Unequal compensation

It may happen that the compensation agreement will indicate the value of the transferred property, which is less or more than the debt under the original agreement, but will not stipulate in what part the debt is repaid. Or it will be stated that the transfer of such property completely terminates all obligations under the loan agreement.

In such cases, tax risks are likely. If the value of the property exceeds the terminated obligation, then the risks arise with the receiving party (the lender). Officials believe that in this situation the organization must reflect non-operating income on which it is necessary to pay income tax. This conclusion can be seen, for example, in Letters of the Ministry of Finance of the Russian Federation dated February 3, 2010 No. 03-03-06/1/42, Federal Tax Service of Russia for Moscow dated December 5, 2007 No. 19-11/116142. By taxing this difference to income tax, the company will eliminate tax risks.

At the same time, officials note that for a borrower who transferred property worth more than the amount of his debt, the resulting difference cannot be attributed to a decrease in taxable profit.

In the opposite situation (the value of the property is less than the amount of the terminating obligation), risks arise with the transferring party, that is, with the borrower. The Federal Tax Service will consider that it has generated non-operating income in the amount of the excess. At the same time, the loss that the other party (the lender) receives, according to officials, cannot be accepted for tax purposes (Letter of the Federal Tax Service of Russia for Moscow dated December 5, 2007 No. 19-11/116142).

Taking all this into account, it is better for the parties not to resort to “unequal exchange”. Or the value of the property transferred as compensation should be adjusted to the amount of the debt being repaid. This will not be a violation, because the prices used in transactions, the parties to which are persons who are not recognized as interdependent, are recognized as market prices (clause 1 of Article 105.3 of the Tax Code of the Russian Federation). In other words, the price that the parties determined in the agreement will be the market price.