- SNiP 3.03.01-87 Bearing and enclosing structures
Document type:
Decree of the Gosstroy of the USSR of 04.12.1987 N 280
SNiP dated 04.12.1987 N 3.03.01-87
Construction norms and rules of the Russian Federation
Host body: Gosstroy of the USSR
Status: Active

Effective date: 07/01/1988
Published: Official publication, Ministry of Construction of Russia, - M .: GP TsPP, 1996

SP 13-102-2003 Rules for the inspection of load-bearing building structures of buildings and structures
Document type:
Decree of the Gosstroy of Russia of 21.08.2003 N 153
Code of Practice (SP) dated 21.08.2003 N 13-102-2003
Code of Practice for Design and Construction
Host body: Gosstroy of Russia
Status: Active
Document type: Normative and technical document
Effective date: 08/21/2003
Published: official publication, M .: Gosstroy of Russia, GUP TsPP, 2003

GOST 26433.2-94 System for ensuring the accuracy of geometric parameters in construction. Rules for performing measurements of parameters of buildings and structures
Document type:
Decree of the Ministry of Construction of Russia of 04/20/1995 N 18-38
GOST dated 11/17/1994 N 26433.2-94
Accepting body: Gosarchstroynadzor of the RSFSR, MNTKS
Status: Active
Document type: Normative and technical document
Effective date: 01/01/1996
Published: Official publication, M .: IPK publishing house of standards, 1996
- Civil Code of the Russian Federation (Part Two) (Articles 454 - 1109) (with commentary) (as amended on December 6, 2007) (version effective from February 1, 2008)

On the entry into force of part two of the Civil Code of the Russian Federation (with commentary) (as amended on November 26, 2001)
Document type:
Code of the Russian Federation of 01.26.1996 N 14-FZ
Federal Law No. 14-FZ of January 26, 1996
Federal Law No. 15-FZ of January 26, 1996
Host body: State Duma of the Federal Assembly of the Russian Federation
Status: Active
Document type: Normative legal act
Effective date: 03/01/1996
Published: Collection of Legislation of the Russian Federation N 5, 01/29/96, art. 410, 411, Rossiyskaya Gazeta, N 23, 02/06/96, N 24, 02/07/96, N 25, 02/08/96, N 27, 02/10/96
For the meaning of document attributes, see "Legal note"

General provisions
A diagnostic examination of the apartment was carried out in order to determine the nature and specifics of the work performed.
The basis for the diagnostic survey is the Construction Expertise Contract, which specifies the purpose of the survey and the list of works to be performed.
When performing survey work, the obtained data were recorded, photofixation was made.

Diagnostic examination
Inspection of building structures of buildings and structures is carried out, as a rule, in three interconnected stages:

The expert made an external inspection of the object, with selective fixation on a digital camera, which meets the requirements of SP 13-102-2003 Clause 7.2 The basis of the preliminary survey is the inspection of a building or structure and individual structures using measuring instruments and instruments (binoculars, cameras, tape measures, calipers, probes, etc.).

Measurement work was carried out in accordance with the requirements of SP 13-102-2003 Clause 8.2.1 The purpose of measurement work is to clarify the actual geometric parameters of building structures and their elements, to determine their compliance with the project or deviation from it. Instrumental measurements clarify the spans of structures, their location and pitch in plan, cross-sectional dimensions, height of rooms, marks of characteristic nodes, distances between nodes, etc. Based on the measurement results, plans are drawn up with the actual location of structures, sections of buildings, drawings of working sections of load-bearing structures and junctions of structures and their elements.

According to Article 623 of the Civil Code of the Russian Federation, “improvements that can be separated from a thing without harm to it are recognized as separable. Accordingly, inseparable improvements, when they are separated from a thing, worsen its condition, as a result of which it acquires disadvantages.

Civil Code of the Russian Federation

Section 623. Improvements to Leased Property

1. Separable improvements made by the lessee to the leased property shall be his property, unless otherwise provided by the lease agreement.
2. In the event that the lessee has made, at his own expense and with the consent of the lessor, improvements to the leased property that cannot be separated without harm to the property, the lessee shall have the right, after the termination of the contract, to reimburse the cost of these improvements, unless otherwise provided by the lease agreement.
3. The cost of inseparable improvements to the leased property, made by the tenant without the consent of the lessor, shall not be reimbursed, unless otherwise provided by law.
4. Improvements of the leased property, both separable and inseparable, made at the expense of depreciation deductions from this property, shall be the property of the lessor.

Commentary on Article 623. Leased Property Improvements:

1. As a general rule, the lessee is not obliged to improve the leased property. But if he nevertheless made these improvements, then proceeding from the principle of justice, their legal consequences should be determined.
Improvements should be understood as such changes in the leased property during the term of the contract, which increase its consumer properties or value. Moreover, the tenant should have no obligation to produce them.

2. A distinction is made between improvements that are separable and inseparable from the leased property, as well as those made with or without the consent of the lessor.
Separable improvements are those that can be separated from a thing without harm to it. Accordingly, inseparable improvements, when they are separated from a thing, worsen its condition, as a result of which it acquires disadvantages. The law does not say what the degree of damage to a thing must be in order for the improvements to be recognized as inseparable. Therefore, one should come to the conclusion that harm can be of any kind, the main thing is that as a result of it, the thing has defects for which the tenant is responsible.
As for the consent of the lessor to make improvements, it can be given in the contract itself or separately, but it is obligatory in the form provided for this contract. If the nature and extent of the improvements are not specified in the lessor's consent, any improvements that do not change the purpose of the leased property should be considered to be permitted. In case of non-compliance with the requirement on the form in which the consent of the lessor must be given, the improvements must be recognized as made without the consent of the lessor.
Separable improvements made by the tenant to the leased property shall be recognized as his property, which he may dispose of at his own discretion. At the end of the lease, separable improvements must be separated from the leased property. Otherwise, they will be in the possession and use of the lessor, and the ownership of them will become ephemeral.
The rule of clause 1 of article 623 of the Civil Code is dispositive. The lease agreement may stipulate that separable improvements are owned by the lessor or a third party.

3. Inseparable improvements are inextricably linked with the leased property, and therefore, as part of it, they become the property of the lessor. However, the tenant who has made improvements at his own expense and with the consent of the lessor is entitled, after the termination of the contract, to reimbursement of the cost of these improvements. Reimbursement of the cost of improvements is made at the end of the lease agreement, i.e. considering their wear and tear.

4. The lease agreement may provide for a rule different from that enshrined in paragraph 2 of the comment. Art. Thus, the landlord may release himself from the obligation to reimburse the cost of inseparable improvements to which he has agreed. Conversely, the tenant may acquire the right to reimbursement for the cost of inseparable improvements made without the consent of the landlord, including during the period of the contract. However, both must be provided for in the contract.

5. The lessee is not entitled to compensation for the cost of inseparable improvements made without the consent of the lessor, unless otherwise provided by law. This is true, since such improvements are subject to the whim of the tenant. Moreover, in paragraph 3 of the comment. Art. means the absence of any consent of the landlord. If at the conclusion of the contract the latter allowed to make inseparable improvements, but did not specify which ones, the consent is considered received. The law may also provide for cases where the landlord is obliged to reimburse the tenant for the cost of inseparable improvements that were made without his consent at all - both direct and indirect (see Article 662 of the Civil Code).

6. Since the leased property is owned by the lessor, any improvements - both separable and inseparable - that are made at the expense of depreciation deductions from this property belong to the lessor. Depreciation deductions are made by the party to the lease agreement on whose balance sheet the subject of the agreement is located. In the vast majority of cases, this is the landlord as the owner of the leased property. He himself makes depreciation deductions, reducing the amount of his balance sheet profit. The tenant has nothing to do with these deductions.
However, in some cases, the lease agreement may provide that the rent includes depreciation deductions that are not transferred to the landlord, but are used by the tenant to improve the leased property. Then improvements of any kind made at the expense of deductions do not give the tenant the right to demand their reimbursement. True, such improvements are made, rather, at the expense of the rent due to the lessor, and not the depreciation deductions made by him.

7. In cases stipulated by law, the subject of the lease agreement may be on the balance sheet of the tenant, who independently makes depreciation deductions (see clause 1, article 31 of the Law on Leasing). By making improvements to the leased property at the expense of these deductions, the tenant again cannot demand reimbursement of their value from the lessor. However, such situations are extremely rare, since in most cases the subject of leasing becomes the property of the lessee at the end of the contract.

Notes:

Inseparable improvements

Inseparable improvements to the leased property, which cannot be separated from the leased property itself, are in any case recognized as the property of the lessor and transferred to him at the end of the lease term.

If these improvements were made by the lessee with the consent of the lessor, then the lessee is entitled to compensation for the cost of the improvements made by him.
When transferring capital investments made to the lessor, the costs of completed capital works subject to compensation by the lessor are written off by the lessee from the credit of account 08 in correspondence with the debit of account 76 (clause 35 of the Guidelines for accounting for fixed assets).
If the landlord does not compensate the tenant for the cost of the inseparable improvements made, then the tenant, in our opinion, can write off all his expenses from the credit of account 08 to the debit of account 91 as part of other expenses.

According to PBU 6/01 "Accounting for Fixed Assets", fixed assets include capital investments in leased items of fixed assets. In this case, we are not talking about any capital investments, but only about those that, in accordance with the concluded lease agreement, are the property of the tenant (clause 35 of the Guidelines for accounting for fixed assets).

Thus, the lessee can take into account only separable improvements of the leased property as part of the property, plant and equipment, since only they can be recognized as its property.

Inseparable improvements to the leased property, in our opinion, are initially the property of the lessor. And therefore, under no circumstances can they be taken into account by the tenant on account 01 as part of their own fixed assets and, accordingly, should not be included by the tenant in the tax base for property tax.

However, the Russian Ministry of Finance think otherwise. Moreover, the position of this department has changed several times over the years.

Back in 2006, the Ministry of Finance of Russia issued a letter in which the following position was indicated: the lease agreement can stipulate that during the lease term, inseparable improvements are the property of the tenant. And in this case, they can be taken into account by the tenant as part of fixed assets on account 01, which entails the inclusion of their value in the tax base for property tax (letter dated November 24, 2006 N 07-05-06 / 285).

However, in 2008 the Ministry of Finance's approach became more stringent. According to the clarifications that appeared in 2008, capital investments made by the tenant in the form of inseparable improvements in the leased real estate, accounted for as part of the tenant's fixed assets, reimbursed (not reimbursed) by the lessor, are subject to corporate property tax until they are disposed of under the lease agreement . At the same time, the issue of ownership of these improvements is not discussed by the Ministry of Finance at all (letters dated October 24, 2008 N 03-05-04-01 / 37 and dated December 16, 2008 N 03-05-05-01 / 73). Moreover, from the letter dated October 24, 2008 N 03-05-04-01/37, a quite definite conclusion follows that property tax must be paid by the tenant, regardless of whether the issues of ownership of improvements are stipulated in the contract or not. This approach was confirmed by the Ministry of Finance in a letter dated 11.03.2009 N 03-05-05-01/17.

However, in the letter of the Ministry of Finance of Russia dated June 23, 2009 N 03-05-05-01 / 37, the conclusion is again made: if the capital costs incurred by the tenant in the leased fixed assets cannot be recognized as the property of the tenant, then when they are put into operation, they are written off to the account according to accounting for expenses (deferred expenses on other transactions) and, therefore, in this case are not subject to property taxation. And although this letter is addressed to a bank, the conclusions made in it, in our opinion, are also valid for other organizations, since the accounting rules (and the tax base for property tax is determined according to accounting data) of capital investments in leased property for banks are no different from the rules set for other organizations.
Thus, if the tenant organization is not ready for a dispute with the tax office, i.e. it will be necessary to include the cost of inseparable improvements of the leased property made at one's own expense, not compensated by the lessor, in the tax base for property tax.

Chapter 25 of the Tax Code of the Russian Federation contains special rules that provide the tenant with the opportunity to depreciate for the purposes of taxation of profits the inseparable improvements made by him to the leased property.

According to paragraph 1 of Art. 256 of the Tax Code of the Russian Federation, capital investments in leased fixed assets in the form of inseparable improvements made by the lessee with the consent of the lessor are recognized as depreciable property.

At the same time, the tenant has the right to depreciate the inseparable improvements made by him to the leased property, provided that two conditions are met:

1) capital investments are made with the consent of the lessor;
2) the cost of capital investments made by the lessor shall not be reimbursed.

If these two conditions are met, capital investments made by the tenant in the form of inseparable improvements to the leased property are depreciated by him during the term of the lease.
The amount of depreciation for inseparable improvements is calculated by the lessee based not on the lease term, but on the useful life determined for the leased items of property, plant and equipment in accordance with the Classification of property, plant and equipment.
This means that the lessee, when determining the useful life, must be guided by the terms established for the depreciation group in which the leased object falls. And it is on the basis of this period that the amount of depreciation for the inseparable improvements made will be calculated.
In this case, the lessee must proceed from the full useful life of the leased object, regardless of how worn out this object is and what its remaining useful life is (letter of the Ministry of Finance of Russia dated 17.07.2009 03-03-06/1/478).

If an organization leases, for example, premises in a building belonging to the 10th depreciation group, and makes inseparable improvements to these premises, then the useful life of the improvements made will have to be determined in accordance with the 10th depreciation group. The minimum possible useful life in this situation will be 361 months. (lower limit for the 10th depreciation group).

Depreciation is charged by the tenant from the next month after the improvements made by him were put into operation. After the end of the lease term and the return of the leased object to the lessor, depreciation is terminated.

In the event that the useful life of the leased object is longer than the term of the lease agreement, part of the cost of capital investments in the form of inseparable improvements will not be depreciated, that is, the lessee organization will not be able to recognize part of the costs of inseparable improvements * (41).
Depreciation for inseparable improvements made can be charged in any way (linear, non-linear).

Since 2009, depreciation for all objects of depreciable property has been charged in the way that is fixed in the accounting policy of the organization. There are no exceptions for capital investments in the form of inseparable improvements to leased property in Chapter 25 of the Tax Code of the Russian Federation. Therefore, in the general case, they are depreciated by the lessee using the method that is fixed in its accounting policy.

However, there is an exception to the general rule. In paragraph 3 of Art. 259 of the Tax Code of the Russian Federation lists the types of property that are always depreciated using the straight-line method. We are talking about buildings, structures, transmission devices included in 8-10 depreciation groups.
Accordingly, if you depreciate capital investments in leased property, which belongs to 8-10 depreciation groups, then they will have to be depreciated on a straight-line basis. The non-linear method cannot be applied to such capital investments.
Both with the linear and non-linear methods, the tenant accrues depreciation for inseparable improvements from the 1st day of the month following the month in which this property was put into operation (clause 3 of article 259.1, clause 6 of article 259.2 of the Tax Code of the Russian Federation) .

Example:
The organization rents space in an office building. The lease period is from February 1, 2009 to January 31, 2011. With the consent of the lessor, the organization at its own expense re-planned and re-equipped the premises, spending 1,000,000 rubles on this. The work was completed in March 2009.
The building in which the leased premises are located belongs to the 10th depreciation group. In this case, the tenant in March 2009 includes inseparable improvements made by him in the amount of 1,000,000 rubles. as part of its depreciable property. These improvements can only be depreciated using the straight-line method.
To calculate the amount of depreciation, the lessee must establish the useful life for the improvements made by him on the basis of the terms established for the 10th depreciation group. Suppose the tenant sets a term of 361 months.
To determine the amount of depreciation that the tenant can monthly take into account in expenses, you need to take the amount of capital investments made (1,000,000 rubles) and divide by the useful life (361 months).
Thus, starting from April 2009, the tenant has the right to monthly include in the expenses the amount of depreciation for inseparable improvements made in the amount of 2770 rubles. (1000,000: 361). Before the end of the lease term, the tenant will be able to take into account the amount of 60,940 rubles in expenses. (2770 rubles x 22 months). The remaining part of capital investments in the amount of 939,060 rubles. can only be expensed if, at the end of the lease term, the lessor reimburses the lessee for the residual value of the improvements made.
If there is no compensation, then the tenant will not be able to take this part of the costs into account for income tax purposes.

Note! Chapter 25 of the Tax Code of the Russian Federation allows organizations, when calculating income tax, to write off at a time up to 10% (and in some cases up to 30% * (42)) of the amount of capital investments made in fixed assets (the so-called "depreciation bonus" provided for in paragraph 9 article 258 of the Tax Code of the Russian Federation).
Can the tenant take advantage of this opportunity and at a time recognize as an expense 10% (30%) of the cost of inseparable improvements made by him at his own expense?
The Ministry of Finance of Russia believes that the tenant does not have such a right, since for capital investments in leased fixed assets a special procedure for calculating depreciation is established, provided for in Art. 258 of the Tax Code of the Russian Federation. Therefore, the tenant does not have the right to immediately take into account in the costs 10% (30%) of the cost of the improvements made by him (letter of the Ministry of Finance of Russia dated 09.02.2009 N 03-03-06 / 2/18).

Pay attention to one more thing. Many organizations practice the conclusion of short-term lease agreements (for a period of less than a year) with their subsequent prolongation or renegotiation.
From the point of view of the tenant, who has made inseparable improvements to the leased property, it is fundamental how the relations of the parties are formalized at the end of the lease agreement.
If the contract is extended (prolonged), then the original contract, under which the improvements were made, continues to operate. Consequently, the tenant can continue to accrue depreciation on the improvements made by him even after the prolongation.
If the parties renegotiate the lease agreement, then the previous agreement ceases to be valid and a new agreement begins to operate. And this means that the tenant loses the right to depreciate the improvements made by him under the old lease agreement, which has ceased to be valid (letter of the Ministry of Finance of Russia dated July 17, 2009 N 03-03-06 / 1/478).
In this regard, let us pay attention to the letters of the Ministry of Finance of Russia of September 18, 2009 N 03-03-06 / 2/174 and the Federal Tax Service of July 13, 2009 N 3-2-06 / 76 * (43).
These letters generally support the above approach to depreciation on renewals and renegotiations of leases. But at the same time, they expressed the following point of view.
In accordance with paragraph 2 of Art. 621 of the Civil Code of the Russian Federation, if the tenant continues to use the property after the expiration of the contract in the absence of objections from the lessor, the contract is considered renewed on the same terms for an indefinite period. In this case, according to the Federal Tax Service of Russia, the expired contract is terminated, and the renewed contract for an indefinite period should be considered as a new lease contract. Accordingly, after the expiration of the original contract, the lessee is no longer able to charge depreciation on inseparable improvements made under the original contract.

Another issue that is related to inseparable improvements concerns the amount of "input" VAT on costs associated with the production of inseparable improvements. Does the tenant have the right to deduct these amounts?

There is no unequivocal answer to this question in the legislation.
In accordance with paragraph 2 of Art. 171 of the Tax Code of the Russian Federation, the amounts of VAT on goods (works, services), property rights acquired for the implementation of transactions subject to VAT are accepted for deduction.
The tenant in the production of inseparable improvements acquires goods (works, services). Accordingly, the deduction of VAT on these goods (works, services) is possible if the improvements made are subsequently used by the tenant in the implementation of transactions subject to VAT. Thus, the right to a deduction depends on the purpose for which the leased property (which includes improvements) is used. If for the implementation of transactions subject to VAT, then the tenant has the right to a deduction; if for transactions not subject to VAT, then there is no right to a deduction.

However, another approach to solving this problem is also possible.
After all, we are talking about inseparable improvements to the leased property, which are inextricably linked with the leased property. This means that at the end of the lease term, these improvements will in any case be transferred to the landlord. The transfer of these improvements can be either paid (the lessor fully or partially reimburses the tenant for their cost), and free of charge. But in any case, it will be recognized as an object of VAT (subparagraph 1, paragraph 1, article 146 of the Tax Code of the Russian Federation), i.e. at the end of the lease term, the lessee will in any case have to charge VAT on the value of the inseparable improvements transferred to the lessor.

It is this position that the tax authorities adhere to (letters of the Ministry of Finance of Russia dated 08.29.2008 N 03-07-11 / 290, the Federal Tax Service of Russia dated 05.18.2006 N 03-1-03 / [email protected], Federal Tax Service of Russia for Moscow dated January 26, 2007 N 19-11 / 06916, dated December 8, 2006 N 19-11 / 108507). In addition, in judicial practice there are decisions confirming the need to pay VAT when transferring inseparable improvements to the lessor (see, for example, Decree of the Federal Antimonopoly Service of the Far Eastern District of October 20, 2008 N F03-4340 / 2008) * (44).
Thus, already at the time of the production of inseparable improvements, the lessee knows that these improvements will eventually be transferred to the lessor and VAT will be charged on their transfer value. Accordingly, on the basis of sub. 1 p. 2 art. 171 of the Tax Code of the Russian Federation, the tenant has the right to deduct VAT on goods (works, services) used for the production of inseparable improvements, regardless of the purpose for which he uses the leased property.

Both of these approaches, in our opinion, have the right to exist.
At the same time, both approaches assume that the tenant has the right to use the deduction in the period when the improvements were taken into account (the relevant work was completed).

However, officials of the Russian Ministry of Finance have a different view on this problem.
Letter No. 03-07-09/19 of April 6, 2009 of the Ministry of Finance of Russia states that VAT on inseparable improvements to leased property is deductible from the tenant only at the time of their transfer to the landlord. In our opinion, this conclusion does not comply with the Tax Code of the Russian Federation, which links the right to a deduction with the moment of acceptance of goods (works, services) for accounting, and not with the moment of the subsequent sale of property (works, services), in the production (performance) of which they were used . But, unfortunately, it cannot be ruled out that the tax authorities will adopt the position set out in the letter of the Russian Ministry of Finance.
Thus, you need to decide for yourself which of the above approaches to use in practice.

Sharp corners of inseparable improvements

Accounting and tax accounting of inseparable improvements made by the tenant with the consent of the owner to the leased objects and the cost of which is not reimbursed by the lessor has always raised many questions for accountants. Since this year, the hassle has increased, since the rules for reflecting such objects in tax accounting have changed. And this, in turn, may affect the accounting of these objects.

Three conditions for depreciation
Chapter 25 "Corporate Income Tax" of the Tax Code of the Russian Federation enables tenants to increase their expenses by accruing depreciation on the cost of inseparable improvements to leased facilities. True, for this it is necessary to fulfill a number of conditions (clause 1 of article 258 of the Tax Code of the Russian Federation).

Condition one
Tenant-created improvements must be inseparable. These are capital investments that cannot be withdrawn without causing damage to the leased property (Article 623 of the Tax Code of the Russian Federation).
The question arises: is it possible to recognize the overhaul of the leased object as an inseparable improvement?
Neither tax nor civil legislation gives a clear answer. Some courts believe that the overhaul of the leased property is its inseparable improvement (decisions of the Federal Antimonopoly Service of the West Siberian District dated April 12, 2007 No. A75-5875 / 2006, the North-Western District dated October 26, 2006 No. Siberian District dated October 30, 2007 No. А78-715/07-Ф02-8189/07).
At the same time, the Ministry of Finance of Russia, in its clarifications, indicates that in order to recognize the work performed as inseparable improvements, they must be of a capital nature, that is, they must be associated with the reconstruction, modernization, and technical re-equipment of property. If expenses are incurred for the current maintenance of fixed assets in working order, such expenses are written off as part of other expenses at a time as repair expenses (Article 260 of the Tax Code of the Russian Federation). This position is stated in many letters of the Ministry of Finance of Russia (for example, dated 06.11.2009 No. 03-03-06/2/215, 18.11.2009 No. 03-03-06/1/762). There are also court decisions with a similar position (Decree of the Federal Antimonopoly Service of the Far Eastern District dated February 22, 2005 No. Ф03-А51 / 04-1 / 4525).

Condition two
It is necessary to obtain the consent of the landlord to carry out major work to improve the leased property. If the owner of the property has not given his consent, but the tenant has made inseparable improvements, they cannot be depreciated. Note that permission to carry out these works can be initially prescribed in the lease agreement or issued in an additional agreement to the agreement.

Condition three
For a tenant to be able to charge depreciation on non-separable improvements, the lease must provide that the landlord does not reimburse the tenant for the cost of work performed. Please note: this condition must be reflected in the lease agreement. The point is that Art. 623 of the Civil Code of the Russian Federation states that, as a general rule, the tenant has the right, after the end of the lease agreement, to demand reimbursement of his costs for the creation of inseparable improvements, unless otherwise provided by the agreement. Thus, if there is no condition in the contract that the lessor does not reimburse the cost of capital investments, the lessee has the right to demand compensation for the costs.
But what if the lease agreement provides for partial compensation for inseparable improvements made by the tenant? In Letter No. 03-03-06/1/19 dated January 25, 2010, the Ministry of Finance of Russia came to the conclusion that the tenant has the right to depreciate inseparable improvements if the lease agreement stipulates a partial reimbursement of capital investments in the leased object. Of course, only that part of the improvements, the cost of which was not reimbursed by the landlord, will be depreciated.

Determine the amount of depreciation
If the tenant fulfills all of the above conditions, he has the right to depreciate inseparable improvements. You can start accruing depreciation from the 1st day of the month following the month in which the facility was put into operation (clause 4, article 259 of the Tax Code of the Russian Federation).
Prior to January 1, 2010, the amount of depreciation for inseparable improvements was calculated based on the useful life of the leased property. That is, when calculating depreciation, for example, for a fire alarm installed in a leased building, the tenant had to take the service life of the building itself, not the alarm.
Starting from this year, companies have the right to choose which particular useful life (of an inseparable improvement or a leased object) will be included in the calculation. In this case, as before, it is necessary to be guided by the Classification of fixed assets included in depreciation groups, approved by Decree of the Government of the Russian Federation of 01.01.2002 No. 1. Such changes in paragraph 1 of Art. 258 of the Tax Code of the Russian Federation were introduced by the Federal Law of November 25, 2009 No. 281-FZ.
Thanks to the innovation, tenants will be able to write off depreciation costs in a larger amount than before. Thus, the amount of income tax will be less.

Example 1:
LLC Parus in January 2010 entered into a lease agreement for the building for six years. In order to meet the requirements for fire safety of the property, a fire alarm system was installed and put into operation in the same month. The lease agreement provides that the cost of inseparable improvements is not reimbursed by the landlord. In an additional agreement to the contract, the lessor allowed the specified work to be carried out.
The cost of installing a fire alarm was 500,000 rubles. (without VAT). The useful life of a leased building is over 20 years to 25 years inclusive, while the service life of a fire alarm is over five to seven years inclusive. The organization calculates depreciation using the straight-line method.
We calculate the amount of monthly depreciation deductions based on the useful life of the leased building and taking into account the life of the inseparable improvement. In this case, we take the minimum allowable service life of objects (241 months and 61 months, respectively).
In the first case, the amount of monthly depreciation deductions will be 2074.69 rubles. (500,000 rubles: 241 months). In the second case - 8196.72 rubles.
As you can see, if an organization bases its depreciation on the useful life of inseparable improvements, the expense will almost quadruple. Consequently, the tax burden will decrease.

Attention to the term of the lease agreement
When calculating depreciation for inseparable improvements, accountants should not forget one important point. The lessee has the right to accrue depreciation on capital investments made in the leased property only during the term of the contract. Such a restriction is established in paragraph 1 of Art. 258 of the Tax Code of the Russian Federation. Therefore, a situation is possible when part of the cost of inseparable improvements will remain not written off as expenses. According to the Russian Ministry of Finance, such a balance cannot be taken into account when calculating income tax (letter No. 03-03-06/2/203 dated October 23, 2009).
Of course, one can try to take into account the under-depreciated part of inseparable improvements as other expenses associated with production and sale (subclause 49, clause 1, article 264 of the Tax Code of the Russian Federation). After all, the list of such expenses is unlimited, and inseparable improvements comply with the requirements of Art. 252 of the Tax Code of the Russian Federation (costs are documented and economically justified). However, given the position of specialists of the financial department on this issue, the tax authorities will be against this option. Unfortunately, there is currently no arbitration practice on this issue. It is difficult to predict which side the court will take.
Fortunately, with changes in the depreciation of inseparable improvements from 2010, there should be less contentious situations. After all, if an organization uses the useful life of an inseparable improvement when calculating the amount of monthly depreciation, it is likely that at the end of the lease the entire cost of the inseparable improvements will be written off.

Example 2:
Let's use the condition of example 1. Calculate the amount of depreciation that the company will accrue for the entire period of the lease agreement.
If the organization decides to accrue depreciation from the useful life of the leased object (building), during the term of the contract it will write off 147,302.99 rubles for expenses. [(2074.69 rubles x 11 months) + (2074 rubles x 12 months) x x 5 years].
When calculating depreciation from the life of an inseparable improvement (fire alarm), the company will expense the entire cost of the capital investment. Moreover, the object will be fully depreciated even before the end of the lease agreement, namely for 61 months - five years and one month.

If the contract is extended or modified
At the end of last year, specialists from the Russian Ministry of Finance issued an explanation that will be useful to tenants who charge depreciation for inseparable improvements. The first situation, which was considered by specialists of the Ministry of Finance of Russia, is as follows. The Company has made inseparable improvements to the leased property during the term of the lease agreement. At the end of the lease agreement, the tenant, with the consent of the landlord, continues to use the property without drawing up additional agreements to the original agreement. According to experts from the financial department, such an agreement is considered concluded for an indefinite period and the tenant can continue to charge depreciation for inseparable improvements (letter of the Ministry of Finance of Russia dated 10.20.2009 No. 03-03-06/1/677).
The second situation affects the interests of tenants, whose owners of the leased property change during the term of the lease agreement. For such companies, the question arises: can they continue to amortize inseparable improvements, or is the original contract considered terminated? And here the financiers supported the companies. Based on Art. 617 of the Civil Code of the Russian Federation, the transfer of ownership of leased property to another person is not a basis for terminating the contract or changing its terms. The Plenum of the Supreme Arbitration Court of the Russian Federation adheres to a similar position in an information letter dated 11.01.2002 No. 66. Therefore, tenants can continue to accrue depreciation on inseparable improvements without any problems and take it into account when calculating income tax (letter of the Ministry of Finance of Russia dated 10.20.2009 No. 03-03-06 /1/677).

Inseparable improvements and depreciation premium: checking for compatibility.
There is another question that arises for accountants when reflecting inseparable improvements in tax accounting. Is it possible to apply the depreciation bonus provided for in paragraph 9 of Art. 258 of the Tax Code of the Russian Federation? Recall that according to this norm of the Code, an organization can take into account at a time when calculating income tax a part of the costs (10 or 30%) on capital investments.
Unfortunately, the tax authorities and the Ministry of Finance of Russia believe that it is impossible to do this (letters of the Ministry of Finance of Russia dated February 9, 2009 No. 03-03-06 / 2/18, the Federal Tax Service of Russia for Moscow dated June 18, 2009 No. 16-15 / 061721.2) .
In their opinion, Chapter 25 “Corporate Income Tax” of the Tax Code of the Russian Federation establishes its own accounting procedure for inseparable improvements. It does not provide for depreciation. In addition, inseparable improvements are an integral part of the leased property and must be transferred to the lessor at the end of the lease.
One can argue with such a position. Inseparable improvements are undoubtedly recognized as capital investments. And in paragraph 9 of Art. 258 of the Tax Code of the Russian Federation we are talking about capital investments. Moreover, the said norm of the Code only says that the depreciation bonus cannot be applied to fixed assets received free of charge. This means that the depreciation premium can be applied to inseparable improvements.
In addition, all unremovable doubts, ambiguities and contradictions in tax legislation should be interpreted in favor of taxpayers (clause 7, article 3 of the Tax Code of the Russian Federation).

VAT disputes
According to paragraph 1 of Art. 146 of the Tax Code of the Russian Federation, the transfer of goods, the results of work performed, the provision of services free of charge are recognized as subject to VAT. It turns out that after the expiration of the lease agreement, the tenant must charge VAT on the cost of inseparable improvements transferred to the owner as part of the lease object. This point of view is shared by the Ministry of Finance of Russia (letter dated December 31, 2009 No. 03-07-11 / 341).
Unfortunately, today there is an ambiguous arbitration practice on this issue. There are court decisions in which the courts support the position of the Ministry of Finance of Russia (decisions of the Federal Antimonopoly Service of the Far Eastern District of October 20, 2008 No. A73-9481 / 2007-21, the Volga District of June 24, 2008 No. A12-18629 / 07, of the Moscow District of February 19, 2007 No. A40 -31107/06-116-180 and others).
Some arbitrators take the side of the taxpayers. They come to the conclusion that in the situation under consideration, the object of VAT does not arise, since there is no fact of realization and transfer of ownership (Decree of the Federal Antimonopoly Service of the North-Western District of September 30, 2009 No. A56-39570 / 2008, of the North-Western District of 21.04. A56-7638/2005). But such decisions are few.
Given the position of the Russian Ministry of Finance and the fact that in most cases the courts support the inspectors, it is better for companies to charge VAT on the cost of inseparable improvements when they are transferred to the lessor.

Accounting has its challenges
In accounting, the tenant takes into account the costs of inseparable improvements made to the leased property on account 08 “Investments in non-current assets”. Once the cost of inseparable improvements is formed, the question arises whether they can be transferred to the property, plant and equipment of the lessee. There are two points of view.

No ownership - no fixed asset
On the one hand, paragraph 5 of PBU 6/01 “Accounting for Fixed Assets” states that capital investments in leased facilities are accounted for as fixed assets. At the same time, it is not specified what kind of (separable or inseparable) capital investments are in question. On the other hand, Clause 3 of the Guidelines for Accounting for Fixed Assets, approved by Order of the Ministry of Finance of Russia dated October 13, 2003 No. 91n, allows to recognize as fixed assets only those capital investments, the ownership of which, according to the agreement, belongs to the tenant. But, as already noted, inseparable improvements cannot be removed without causing harm to the leased object. In any case, at the end of the lease term, they are transferred to the lessor. This means that the landlord owns the property. It turns out that the tenant cannot take into account the inseparable improvements made by him as part of fixed assets. They must be accounted for on account 08 until the moment they are transferred to the lessor. Therefore, the lessee does not have the right to charge depreciation on them.
This option is beneficial for organizations, since you do not need to pay property tax. After all, only objects accounted for on the balance sheet of the organization as fixed assets are subject to it (clause 1 of article 384 of the Tax Code of the Russian Federation). If there is no fixed asset, there is no object of taxation.

Example 3
Let's use the condition of example 1. Suppose the tenant decided to charge depreciation in tax accounting based on the useful life of an inseparable improvement, and in accounting not to transfer capital investments to fixed assets.
Then the accountant will reflect the cost of the fire alarm as follows:

Debit 08 Credit 60

— 500,000 rubles. - the cost of installing a fire alarm is taken into account.

Due to the fact that depreciation is charged for inseparable improvements in tax accounting, but not in accounting, the accountant will have to reflect the differences according to PBU 18/02 “Accounting for settlements on corporate income tax”. Therefore, every month from February 2010, the accountant must take into account permanent differences that lead to the formation of permanent tax assets:

Debit 68 Credit 99

- 1639.34 rubles. (8196.72 rubles x 20%) - a permanent tax asset is reflected.

At the end of the lease agreement, the inseparable improvement will be transferred to the landlord. Since the transfer is gratuitous in nature, non-operating expenses are formed in accounting. There are no expenses in the tax accounting of the company. The accountant will again have to take into account the differences according to PBU 18/02:

Debit 91-2 Credit 08

— 500,000 rubles. - reflected gratuitous transmission of fire alarms;
Debit 99 Credit 68

- 100,000 rubles. (500,000 rubles x 20%) - a permanent tax liability is reflected.

Inseparable improvements can be the main means
Another view is that as long as inseparable improvements are not transferred to the landlord, ownership of them belongs to the tenant. Proponents of this position put forward the following arguments in their favor.
Firstly, the question of who owns the ownership of inseparable improvements until they are transferred to the lessor is not regulated by the Civil Code of the Russian Federation. Secondly, in paragraph 1 of Art. 218 of the Civil Code of the Russian Federation it is established that the ownership of a new thing made or created by a person for himself belongs to this person. And thirdly, the legislation on accounting, namely the Methodological Guidelines for Accounting of Fixed Assets, cannot establish rules for civil legal relations.
Based on the foregoing, we can conclude that the lease agreement should not contain a condition about who is the owner of the inseparable improvements. And until the transfer of capital investments to the lessor, the ownership of them remains with the tenant. Therefore, he has the right to take into account inseparable improvements in the composition of fixed assets and charge depreciation on them. Note that the Ministry of Finance of Russia also adheres to this point of view (letter dated December 16, 2008 No. 03-05-05-01 / 73).
If the organization follows this position, it will have an increased chance of avoiding accounting for differences according to PBU 18/02. To do this, when calculating depreciation, an organization must take the useful life of an inseparable improvement established in the Classification of fixed assets included in depreciation groups. If it is less than or equal to the term of the lease, there will be no difference.
Nevertheless, we want to warn you: by recognizing inseparable improvements in fixed assets in accounting, the company will have to pay property tax.

Example 4
Let's change the condition of example 3. Suppose an organization transferred inseparable improvements to fixed assets, and calculated the amount of depreciation in the same way as in tax accounting, from the life of capital investments. Then the accountant will make the entries:

Debit 08 Credit 60
— 500,000 rubles. - the costs of installing a fire alarm are taken into account;

Debit 01 Credit 08
— 500,000 rubles. — Inseparable improvements have been transferred to fixed assets.

From February 2010, the accountant will charge depreciation:

Debit 20 (26, 44) Credit 02
- 8196.72 rubles. - reflects the amount of accrued depreciation.

At the end of the lease term, the residual value of the non-separable improvements will be zero. Therefore, the accountant, upon disposal of inseparable improvements, will make only one entry:

Debit 02 Credit 01
— 500,000 rubles. - the residual value of the fire alarm was written off.

L. Klimenkova,
accounting and tax expert

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