How much will it be to rent an IP. The best system of taxation when renting out premises. What you need to know

Today, renting is one of the most profitable business areas. There is no need to recruit a huge staff of qualified employees, you don’t have to deal with production and purchases, and there is a minimum of risks with an excellent level of income.

Sole proprietor leases non-residential premises, what taxes does he have to pay?! Despite the fact that not only individual entrepreneurs, but also legal entities and individuals can engage in this type of activity, the tax rate varies quite seriously. What taxation option is more profitable for a “rental” business, and what troubles can lie in wait for an individual entrepreneur?

Lease contract

A lease agreement for non-residential premises is an agreement that is concluded between the parties (tenant and landlord) who plan to conduct business (trade, storage, etc.)

Real estate is used to receive proceeds from the second party for the temporary use of a residential or non-residential facility.

If the premises are planned to be leased to an individual, in order to perform such an operation, it is necessary to register as an individual entrepreneur.

In addition, at the initial stage of registration, a businessman must indicate the lease in the types of activities.

On the general taxation system, when renting real estate, an individual entrepreneur is obliged to pay a tax of 13%, maintain a KUDiR (book of income and expenses), and also submit reports in accordance with form 3 of personal income tax on time.

With regards to entrepreneurs working on the simplified tax system, then:

IP on the object "income" with a rate of 6%.
Entrepreneurs on "income less expenses" apply their standard rate of 15%.

Businessmen on a patent take into account a flat tax of 6%.

It is worth paying attention to the fact that the landlord pays utilities for his premises on his own, respectively, on the simplified tax system "income minus expenses" he can include them in his costs when calculating the tax. The simplified system on "income" does not allow this.

The patent system operates on the estimated income, respectively, an individual entrepreneur using PSN also cannot reduce the taxable base for utility costs for non-residential property that he rents out. Moreover, the tax is paid automatically at the stage of acquiring a patent for a year.

If an entrepreneur rents out an apartment on the simplified tax system “income minus expenses”, in addition to utilities, he can also include repair costs in an expense item, thereby reducing the taxable base.

Let's consider an example of calculating tax when renting a residential property owned by an individual entrepreneur working on the simplified tax system "income".

The lease agreement indicates the amount of the monthly payment in the amount of 20,000 rubles. per month. The annual income from the apartment will be 240,000 rubles.

The entrepreneur on "income" for the reporting year undertakes to pay 6%, that is, 240,000 x 6% \u003d 14,400 rubles.

Moreover, it is worth noting that in addition to this tax, the individual entrepreneur is obliged to make payments to the FIU and the social insurance fund. Therefore, the question of whether it is more profitable to rent an apartment to an individual (13%) or an individual entrepreneur is very controversial.

An entrepreneur who rents non-residential premises for his business can reduce the taxable base by the STS “income minus expenses”.

Rights and obligations of the parties

The parties at the conclusion of a transaction for the lease of non-residential premises may be an individual entrepreneur or a legal entity. The contract is recognized as valid only when executed in writing.

The main nuances when concluding a transaction between an individual entrepreneur LLC:

If on the part of the legal entity the agreement is endorsed by the general director, he must confirm his authority for such an action in a documented manner.
An individual entrepreneur, whose actions are based on a certificate of state registration, can confirm the authority with his passport and certificate of registration in the person of an individual entrepreneur (EGRIP).
Without a trust document, the head entitled to act on the part of the LLC (extract from the Unified State Register of Legal Entities) has the right to sign a lease agreement.

A businessman can endorse the agreement with a personal signature, since IP legislation of the Russian Federation allows you to conduct business without a seal.

The entrepreneur can rent out the premises to individuals. face. The legislation does not regulate the rules regarding restrictions on rent. Therefore, any capable person can participate in a transaction for the lease of non-residential premises.

Leasing a personal car by an individual entrepreneur is not prohibited by law. The transaction is formalized by signing an agreement between the entrepreneur and an individual or LLC. The clauses of the contract clearly spell out all the nuances that may arise during the operation of the car. A party is appointed who bears the costs associated with the purchase of fuel and lubricants, spare parts and monetary compensation for wear and tear.

An individual entrepreneur who has the right to own a vehicle intended for the provision of motor transport services can apply the UTII taxation system. This rule is regulated by the Tax Code article 346.26.

Differences in taxation of rental income

Some believe that it is more profitable to rent real estate in the person of an entrepreneur working at a tax rate of 6%, as opposed to an individual who will have to pay 13% of the income from the transaction. In fact, the entrepreneur pays additional deductions to the budget.

From rental activities, an individual entrepreneur is obliged to pay taxes:

6% on rental income;
contributions to the pension fund;
deductions for salaries of employees (income, PFR and social insurance fund).

In addition, the entrepreneur has a lot of paperwork related to bookkeeping. If an individual entrepreneur rents a room, this directly affects his profits. Costs are non-operating and have an indirect impact on performance.

Renting an apartment and non-residential premises for rent provides for the receipt of funds for the use of the facility. But, non-residential premises are most often subject to VAT, unlike residential. This is due to the fact that non-residential premises are often rented out for commercial activities. And basically such areas are of interest to large organizations registered as a legal entity and interested in obtaining VAT. Entrepreneurs working on the OSNO can provide a tax deduction, who, as a result of such a transaction, receive not only profit, but also a tax liability in the amount of 18% of the amount specified in the lease agreement.

Of course, there are cases when LLCs agree to rent without value added tax, but only small areas.

The advantage of renting residential real estate to friends or relatives on the part of an individual is the absence of an obligation to pay money to the budget. But, in this case, it is necessary to rent non-residential premises without payment, otherwise the transaction will be equated to a commercial operation subject to calculation and payment of tax.

Both the entrepreneur and the individual from rental services have both pluses and minuses.

Liability for non-payment of tax

The absence of a lease agreement with an individual entrepreneur does not apply to a direct violation, but the absence of an agreement on the transfer of non-residential premises for temporary use (rent) may attract attention from the inspector of the Federal Tax Service.

The IRS considers such an action as a deliberate reduction in the tax base, which is a good reason for imposing a fine on a businessman.

Lack of registration of the contract in Rosreestr presents serious tax risks.

Recall that if an agreement on the temporary transfer of property for use is drawn up between an individual entrepreneur and an LLC, it is subject to mandatory registration. In all other cases, including the lease of residential premises, the agreement, the term of which exceeds 11 months, is also subject to the mandatory passage of the relevant procedure.

An individual entrepreneur is an individual, therefore, it is impossible to bring to tax and criminal liability at the same time.

According to the Tax Code (Article 76), in connection with the late submission of reports and late payment of tax, the employees of the Federal Tax Service have the right to block current accounts in the IP bank.

You can remove restrictions on non-cash transactions by submitting reports and paying tax, respectively, through the bank’s cash desk on behalf of the entrepreneur, while the account is temporarily “frozen”.

In case of non-compliance with the rules for keeping records of expenses and expenses, a businessman can be fined:

10,000 rubles (violation was recorded in one reporting period);
30,000 rubles (incorrect calculations were made over more than one tax period);
20% of the unpaid tax amount and not less than 40,000 rubles in case of deliberate underestimation of the tax base for calculation.

Criminal liability is applied to individual entrepreneurs upon discovery of the fact of falsification of documents and provision of false information to the tax authority.

In case of a very large debt or concealment of actual proceeds, the entrepreneur will have to pay a fine of up to 500,000 rubles or may be imprisoned for up to 3 years.

For individual entrepreneurs, the USN taxation system is the most beneficial for leasing residential and non-residential premises.

Sole proprietors, except for insurance premiums, it is enough to pay only 6% per year of the amount of revenue, do not worry. Also, entrepreneurs on the simplified tax system are exempt from paying property tax.

But even here there are some peculiarities. If the businessman's income exceeds 1.5 million, registration as a legal entity will be required. Violation is prosecuted under the criminal code.

In case of non-payment of tax, at the level of revenue permitted by law for individual entrepreneurs, the administrative penalty will be from 500 to 2000 rubles.

An individual entrepreneur leases non-residential premises - the taxation of this procedure depends on the status of the tenant and the tax regime of the entrepreneur. Let's take a closer look at the key nuances of calculating individual taxes for themselves (and sometimes not only) as part of real estate rental transactions.

What are the difficulties of taxation when renting real estate to IP?

The procedure for leasing non-residential real estate to IP is characterized by a large number of nuances in terms of taxation. So, an individual entrepreneur, in order not to violate tax laws, you need to know the answers to the following questions:

In what capacity should he pay taxes on the rental of premises - an individual entrepreneur or an ordinary citizen, taking into account the fact that non-residential real estate is recorded on him as an individual (as an option, he bought it even before registering as an individual entrepreneur)?

Depending on the status of the taxpayer, the right to apply one or another tax regime - general, special, as well as the right to include expenses in the calculation of the tax base is established.

Does he, as an individual, need to pay tax on property that is leased (and thus used in business activities)?

In the general case, property tax is not paid on real estate used in the IP business. But there are many exceptions to this rule.

What taxes should an individual entrepreneur pay if he rents real estate to an economic entity - another individual entrepreneur or LLC?

Here everything rests mainly on the specifics of the applied taxation system - DOS or any of the special regimes.

What taxes should an individual entrepreneur pay if he rents out non-residential property to an individual (not registered as an individual entrepreneur)?

The main problem here is as follows: in relation to individuals, an individual entrepreneur, as an economic entity, can act as a tax agent and bear the statutory obligations for calculating and paying personal income tax for an individual (as well as for reporting).

Let us now try to consistently give answers to these questions related to the taxation of the lease of real estate to individual entrepreneurs.

Lease of real estate IP: what tax regime to work with?

Even if the property was acquired by an individual in the status of an individual entrepreneur (for example, under a commercial sale and purchase agreement with another business entity), then the owner’s personal data will be given in the certificate of ownership without any adjustments for his status as an entrepreneur. Any commercial transactions with a real estate object (sale or lease) from the point of view of taxation, by default, will be considered as committed by an individual, not an individual entrepreneur. That is, the landlord, by default, will need to pay personal income tax at a rate of 13% on rental income.

At the same time, an individual entrepreneur has the right to notify the Federal Tax Service that he uses the property in business, and on the basis of this, pay taxes on transactions with this object in accordance with the applicable taxation system, for example, the simplified tax system or UTII (clause 3 of article 346.11, clause 4 article 346.26 of the Tax Code of the Russian Federation).

The notification is made in free form. It is desirable to reflect in it the details of the agreement on the lease of the object, acts of acceptance and transfer of the premises - this will be evidence of the fact that the property is used in business activities (letter of the Ministry of Finance of Russia dated 05.03.2012 No. 03-11-11 / 67).

If the individual entrepreneur works for the OSN, then it also makes sense to send the specified notification to the Federal Tax Service. An entrepreneur in the general tax regime, like an ordinary individual, pays 13% of the proceeds, but at the same time, an individual entrepreneur as an economic entity can include expenses in the calculation of the tax base, while an ordinary individual cannot. Expenses in the case of a lease can be very significant (for example, associated with the payment of utilities, if they are not included in the contract price).

Moreover, an individual entrepreneur on OSN will pay VAT on rental income, but an ordinary individual will not.

Real estate in business: should I pay property tax?

Sole proprietorship on OSN pays property tax on a general basis. At the same time, it may be more profitable for him not to include the object of taxation in the composition of property used in entrepreneurial activities, since tax benefits do not apply to such property (clause 2, article 407 of the Tax Code of the Russian Federation).

An individual entrepreneur on the simplified tax system and UTII has the right not to pay tax on real estate used in business activities, unless it refers to the objects listed in subpara. 1 and 2, paragraph 1 of Art. 378.2 of the Tax Code of the Russian Federation. These objects include:

Don't know your rights?

administrative and business buildings, shopping and entertainment centers and any premises inside these objects;
objects inside which are located (or may be located in accordance with the purpose, which is reflected in the technical accounting documents) offices of enterprises, shops, restaurants, cafes, consumer service points.

A specific list of such facilities is approved for each region by a separate government decree.

The fact of using or not using the objects listed in Art. 378.2 of the Tax Code of the Russian Federation, it does not matter in business activities: the IP pays property tax on them in any case.

One way or another, we will agree that the IP still uses non-residential real estate for commercial purposes, namely for the purpose of leasing. In practice, tenants of an object can be:

individual entrepreneur and legal entity;
individuals who are not registered as individual entrepreneurs.

In each case, the taxation of individual entrepreneurs has its own characteristics.

The tenant is an economic entity: tax consequences of an individual entrepreneur in a special regime

When renting real estate to another business entity, an individual entrepreneur will have to, if he conducts activities on a special regime:

On USN:

calculate and take into account income from receiving rent (with the simplified tax system of 15% - expenses, if any) in the ledger;
to calculate and pay taxes in due time;
report on tax returns.

On UTII:

keep a convenient way (according to which the Federal Tax Service has no objections if there has already been an audit, or by all indications there should not be if there has not yet been an audit) accounting for physical indicators that affect the tax base (letter of the Ministry of Finance of Russia dated 08.08.2012 No. 03-11 -11/233);
calculate, pay and declare tax.

In the case of the lease of real estate under UTII, the physical indicators for the permitted types of lease of non-residential real estate may be different - you need to look at their list under paragraph 3 of Art. 346.29 of the Tax Code of the Russian Federation. And if there are several objects, then their separate accounting may be required.

As we already know, there is no need to pay property tax under the special regime (if there are no exceptions under Article 378.2 of the Tax Code of the Russian Federation and the Federal Tax Service is notified about the use of real estate in business).

Tenant - economic entity: tax consequences of IP on DOS

If an individual entrepreneur conducts activities on the OSN, then he will have to:

Keep records according to the accounting book for OSN (approved by order of the Ministry of Finance of Russia No. 86n dated August 13, 2002, Ministry of Taxation of Russia No. BG-3-04 / 430), calculate and pay your personal income tax, declare it on time.
Pay VAT on revenue represented by rent, issue invoices (prepaid, advance, corrective or corrective, if necessary), enter information about them in the journal and books of account.

You can learn more about the specifics of accounting for invoices by a VAT payer in the articles:

"Journal of accounting for received and issued invoices";
"Reflection in the purchase book of an adjustment invoice".

If an individual entrepreneur and his counterparty have entered into an agreement on gratuitous lease for one purpose or another, VAT must nevertheless be paid, and at the market price of the lease (information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of December 22, 2005 No. 98).

The counterparty at the same time accepts the estimated cost of the lease as part of non-operating income (clause 8, article 250 of the Tax Code of the Russian Federation).

The tenant is an individual (not an individual entrepreneur): tax consequences

If the tenant is an individual not registered as an individual entrepreneur, then the entrepreneur, leasing the object, will, as a taxpayer, generally have to carry out the same actions that are typical for legal relations with another business entity. He pays the same taxes from the rent of non-residential premises. However, SP should keep in mind that:

In case of gratuitous rental of real estate by an individual, an individual entrepreneur is obliged to calculate (by analogy with the scenario for counterparties-legal entities and individual entrepreneurs described above) the personal income tax base for the market rental amount.

The fact is that this amount is considered the natural income of an individual. An individual entrepreneur must accrue personal income tax on it, pay it in the status of a tax agent (letter of the Ministry of Finance of Russia dated 07/05/2013 No. 03-04-06 / 25983), and then report to the Federal Tax Service using forms 2-NDFL and 6-NDFL.

In the journal and books for VAT, obviously, only outgoing invoices will be taken into account.

Moreover, if an individual paid the rent in cash, and the landlord issued a strict reporting form confirming the payment, then an invoice is not needed. In other cases, the invoice must be drawn up and registered in the register and sales book (letter of the Ministry of Finance of Russia dated November 23, 2012 No. 03-07-09 / 153).

An individual entrepreneur can rent out his real estate as an individual, paying the usual personal income tax, or as an economic entity on the OSN or special regime, if he informs the Federal Tax Service about the use of the property in business. In the second case, it is possible to apply more favorable conditions for the payment of income tax.

According to the standard terms of the lease agreement for residential (non-residential) premises, the landlord undertakes to provide the tenant with the premises for a fee for temporary possession and use or for temporary use.

In accordance with Art. 608 of the Civil Code of the Russian Federation, the right to lease property (including non-residential premises) belongs to its owner. Moreover, the law does not indicate the need for a lessor - an individual to register as an individual entrepreneur in order to lease premises. Accordingly, an individual may be a lessor of property owned by him, while not being an individual entrepreneur. However, it should be noted that the situation presented above will comply with the law only if the activity of a citizen in leasing property is not entrepreneurial.

According to paragraph 1 of Art. 2 of the Civil Code of the Russian Federation, entrepreneurial activity is an independent activity carried out at one's own risk, aimed at systematically making a profit from the use of property, the sale of goods, the performance of work or the provision of services by a person registered as an entrepreneur in the manner prescribed by law. Its signs are reflected in the letters of the Ministry of Finance of the Russian Federation dated November 07, 2006 No. 03-01-11 / 4-82 and dated September 22, 2006 No. 03-05-01-03 / 125:

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

accounting of business transactions related to the implementation of transactions;

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

stable relations with sellers, buyers, other contractors.

This legal position is held by and the Judicial Collegium for Administrative Cases of the Supreme Court of the Russian Federation. IN in its own definition No. 16-KG18-17 of the Supreme Court of the Russian Federation confirmed that the owner of non-residential premises is obliged to pay VAT if he is engaged in entrepreneurial activity in leasing them without registering as an individual entrepreneur.

Based on the circumstances of the case, Supreme Court of the Russian Federation pointed out that the objective criterion for qualifying the activity of the plaintiff as entrepreneurial is the purpose of non-residential premises, as well as the type of permitted use of the land plots on which they are located.

In the current situation and an individual, being the owner of real estate objects (shopping pavilions), rented them out. Based on the results of the audit, the tax authority, expressing the opinion that by renting the above premises, the owner was engaged in entrepreneurial activities, assessed additional value added tax, penalties and a fine.

The owner of the premises went to court because he believed that, as the owner, he had the right to lease non-residential premises on the basis of civil law transactions. This does not apply to entrepreneurial activity, and from the income received, he paid personal income tax.

According to the Court of First Instance, the mere fact that the owner of the premises made transactions for compensation is not sufficient to recognize him as an entrepreneur, and the leasing of his own property is the realization of his legal right. However, the Court of Appeal reversed this decision, recognizing the conclusions of the inspection as justified. The plaintiff rented non-residential premises belonging to him to a legal entity for commercial activities. Therefore, the citizen had to pay value added tax.

The Judicial Collegium for Administrative Cases of the Supreme Court of the Russian Federation agreed with the appellate instance and recognized the conclusions of the inspection that an individual carried out entrepreneurial activities as justified, since the property belonging to him was intended for use as retail premises and is located on land plots that are also intended for trading activities.

received
fee 46%

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

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

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

received
fee 27%

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

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

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

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

By virtue of Art. 2 of the Civil Code of the Russian Federation Entrepreneurial activity is recognized as an independent activity carried out at one's own risk, aimed at the systematic receipt of profit from the use of property, sale of goods, performance of work or provision of services by persons registered in this capacity in accordance with the procedure established by law.

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

Entrepreneurial activity includes not only the lease of property, but also preparatory actions, for example, carrying out repair and construction work, searching for potential tenants, which is confirmed by established judicial practice (Resolutions of the Federal Arbitration Courts of the West Siberian District of December 16, 2009 N A70- 4191/2009, Central District dated 08.31.2009 N A64-6950/08, East Siberian District dated 09.09.2009 N A33-6383/09, Central District dated 08.15.2007 N A36-2300/2006).
Thus, the temporary non-use of property in business activities during the tax period, in particular, the absence of lease agreements, renovation of premises, etc., as well as the use of property (part of it) for the management needs of an individual entrepreneur, cannot in itself be considered as the use of this property for purposes other than business activities.
Since Law N 2003-1 does not define the deadlines for submitting documents confirming the right of an individual entrepreneur to be exempted from the obligation to pay tax on property of individuals, such documents must be submitted within the time limits that allow the tax authority to calculate the amount of tax on property of individuals and send the taxpayer a tax notice of tax payment by August 1.
P verification of the actual use of property by individual entrepreneurs in entrepreneurial activities should be carried out by tax authorities as part of tax control.

at a rate of 6 percent.

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

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

At the same time, according to the regulatory authorities, in order to apply the right to exemption from property tax, an individual entrepreneur applying the simplified tax system must submit to the tax authority:
- application for exemption from payment of property tax in any form;
- documents confirming the use of real estate for business activities (in your case, such a document will be a lease agreement).
Such clarifications, in particular, are contained in the Letter of the Ministry of Finance of Russia dated February 1, 2010 No. 03-05-04-01/06.

According to Art. 346.31 of the Tax Code of the Russian Federation, the single tax rate is set at 15 percent of the amount of imputed income. However, the tax system in the form of a single tax on imputed incomeinstalled for certain types of activities, which are specified in article 346.26 of the Tax Code of the Russian Federation.

Thus, since an individual entrepreneur can be exempted from paying tax on the property of an individual, it will be most profitable to rent out property as an individual entrepreneur applying the simplified tax system.

Sincerely, F. Tamara

Single ngaol

received
fee 27%

In cases where a person not registered as an individual entrepreneur has acquired residential premises or other real estate for personal needs or received it by inheritance or under a donation agreement, but due to the lack of need to use this property, temporarily leased it or rented it out and as a result of such a civil law transaction received income (including in a large or especially large amount), the deeds of which do not entail criminal liability for illegal entrepreneurship o (Post. Plenum of the Supreme Court of the Russian Federation dated 11/18/2004 N 23 "On judicial practice in cases of illegal business ..."). In other words, if an individual rents out excess property, then it is not necessary to register an individual entrepreneur.

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

Citizen, registered individual entrepreneur by type of activity "leasing of own residential real estate" OKVED code 70.20.1., under the general system of taxation, pays personal income tax at a rate of 13% on rent. The entrepreneur will need to submit to the tax authority a declaration in the form of 4-NDFL within five days after the expiration of a month from the date of receipt of rental income (clause 7 of article 227 of the Tax Code of the Russian Federation), after which he must pay advance payments on the basis of tax notices (clause 9 article 227 of the Tax Code of the Russian Federation). At the end of the year - submit a declaration in the form 3-NDFL no later than April 30 of the year following the expired year (Article 216, Clause 1 of Article 229 of the Tax Code of the Russian Federation).

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

The obligation to pay personal property tax remains.

All entrepreneurs are required to pay insurance premiums to state non-budgetary funds "for themselves": PFR (for mandatory pension insurance), MHIF (for compulsory health insurance); for employees (if any): PFR + FSS + MHIF (according to Law No. 212-FZ "On insurance premiums ...".

In 2012, the individual entrepreneur is obliged to pay "for himself" contributions of 17,208.25 rubles. (if the payer was born in 1966 and older: contribution to the PFR - 14386.32 rubles, the entire amount is paid to the insurance part; if the payer was born in 1967 and younger, then contributions to the PFR for the insurance part are 11066.40 rubles, for the funded part - 3319.92 rubles .; to the Federal Compulsory Medical Insurance Fund (FFOMS) - 2821.93 rubles; contributions to the Territorial Compulsory Medical Insurance Fund in 2012 are not paid).

Citizen, registered individual entrepreneur by type of activity"leasing of own residential real estate" OKVED code 70.20.1., rolling on USN, should represent that the simplified tax system is applied in 3 versions:

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

STS with the object of taxation "income minus expenses". The law of the constituent entities of the Russian Federation may establish rates from 5 to 15%, depending on the categories of taxpayers; the amount of paid insurance premiums (for example, contributions for "oneself" to the Pension Fund of the Russian Federation, MHIF) can be included in expenses (clause 7, clause 1, article 346.16 of the Tax Code of the Russian Federation);

USN based on a patent - when transferring into temporary possession and (or) use of garages, own residential premises, as well as residential premises erected on suburban land plots (clause 56, clause 2, article 346.25.1 of the Tax Code of the Russian Federation). The amount of the patent is fixed, calculated from the potential annual income established by the subject of the Russian Federation. Part of the patent can be reduced by the amount of insurance premiums to off-budget funds paid by the entrepreneur both for himself and for his employees, taking into account the specifics set out in paragraph 10 of Article 346.25 .1 RF Tax Code.

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

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

The obligation to pay insurance premiums to state non-budgetary funds for individual entrepreneurs on the simplified tax system for "himself" and for employees (if any) exists and does not depend on the applicable taxation regime.

Good evening!

on 1 question and on 2 parts of 2 questions - in accordance with the letter of the Ministry of Finance of the Russian Federation dated 11/17/09 N 03-04-05-01 / 808

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

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

on the second question, the previous lawyer answered in great detail. It is necessary to consider all payments and the amount of rent.

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Druzhkin Maxim

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Hello! In the considered 2 cases of lease, depending on the status of the lessor, it is necessary to take into account a number of factors that affect the obligation to calculate taxes. This is the percentage of tax itself, the obligation to pay it directly by the lessor or tax agent of an individual - the lessor, the ability to also use the reduction in the tax base for expenses when acquiring property. Also in this matter, attention should be paid to the payment of taxes on the subsequent sale of property leased.

I would like to draw your attention right away that the previous answers contained the erroneous opinion that in this case it is not necessary to pay tax when renting real estate, in this position, this tax on income from renting property was mistakenly confused with property tax.

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

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

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

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

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

Accounting for business transactions related to the implementation of transactions;

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

Stable relationships with sellers, buyers, other contractors.

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

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

This position is confirmed by the Letters of the Ministry of Finance of Russia dated 14.01.2005 N 03-05-01-05 / 3 and dated 09.22.2006 N 03-05-01-03 / 125, as well as the Letter of the Federal Tax Service of Russia for Moscow dated 01.25.2008 N 18-12/3/005988.

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

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

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

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

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

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

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

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

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

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

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

entrepreneurial activity for the lease of apartments and non-residential premises for offices and shops of an individual entrepreneur using a simplified taxation system, whose type of economic activity, specified in the Unified State Register of Individual Entrepreneurs, is the leasing of their own real estate, is not subject to taxation by a single tax on imputed income . At the same time, income from the rental of apartments and non-residential premises for offices and shops is also not subject to taxation with personal income tax (clause 24 of article 217 of the Code). (Letter of the Ministry of Finance of the Russian Federation dated 05.12.2011 N 03-11-11 / 310))

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

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

On the basis of paragraphs. 1 p. 1 art. 346.16 of the Code, when determining the object of taxation, taxpayers have the right to take into account the costs of the acquisition, construction and manufacture of fixed assets, as well as the completion, additional equipment, reconstruction, modernization and technical re-equipment of fixed assets (subject to the provisions of clauses 3 and 4 of article 346.16 of the Tax Code) .

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

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

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

Thus, income received from the sale of non-residential premises, which was directly used in business activities, is subject to inclusion in the tax base for personal income tax. .

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

At the same time, in accordance with Art. 41 of the Code, income is recognized as economic benefit in cash or in kind, taken into account if it is possible to assess it and to the extent that such benefit can be assessed, and determined in accordance with the chapters "Income Tax on Individuals", "Corporate Income Tax" Code.

According to paragraph 1 of Art. 572 of the Civil Code of the Russian Federation, under a donation agreement, one party (the donor) transfers free of charge or undertakes to transfer to the other party (the donee) a thing in ownership or a property right (claim) to itself or to a third party, or releases or undertakes to release it from property obligations to itself or in front of a third person.

Based on the foregoing and taking into account the principle of determining income, established in Art. 41 of the Code, when donating real estate, the donor does not receive income (economic benefit) subject to personal income tax.

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

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

I also want to offer another option, which may be less "tax burdened".

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

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

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

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

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

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

The only thing to consider in this case is that, in accordance with paragraph 5 of Art. 346.11 of the Tax Code, individual entrepreneurs applying the simplified taxation system are not exempted from performing the duties of tax agents provided for by the Tax Code.

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

So, see what pluses to accept, what minuses. When registering an individual entrepreneur, do not forget about the obligation to independently pay social taxes, to the Social Insurance Fund, pension fund, MHIF.

Have a nice day!

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

The presence in the actions of a citizen of signs of entrepreneurial activity may be evidenced, in particular, by the following facts:
- production or acquisition of property for the purpose of subsequent profit from its use or sale;
- economic accounting of operations related to the implementation of transactions;
- the interconnectedness of all transactions made by a citizen in a certain period of time;
- stable relations with sellers, buyers, other counterparties (see letters of the Ministry of Finance of the Russian Federation of November 17, 2009 N 03-04-05-01 / 808, of September 22, 2006 N 03-05-01-03 / 125, of January 14, 2005 N 03-05-01-05 / 3, Federal Tax Service of the Russian Federation for Moscow dated January 25, 2008 N 18-12 / 3 / 005988, dated March 30, 2007 N 28-10 / 28916).

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

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

I'm considering an option for IP only.

An individual entrepreneur can apply OSN, STS: "income", "income minus expenses", patent, UTII

UTII: in Moscow it is not

the most disadvantageous, since you will have to pay property tax, income tax, VAT, etc.

USN: "income", "income minus expenses", patent:

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

I’ll start with a patent: it can only be applied when transferring temporary possession and (or) use of garages, own residential premises, as well as residential premises built on summer cottages. Accordingly, when renting commercial real estate does not apply.

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

If the estimated expenses will be less than 66.66% of the total estimated income, then it is better to choose simply "income" and pay a single tax of 6% on the amount of income.

Otherwise, it is better to choose "revenues reduced by the amount of expenses" and pay 15% of the difference.

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

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

In reality, if you are not going to register the contract with the Regpalat, you can submit it as an individual.

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

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