When does the lease agreement close? Sample act of work performed under a lease agreement for premises
For a long time, the question arose of the need to draw up monthly acts to the lease agreement. Lawyers insisted that there was no need to draw up a document that was not provided for by the Civil Code of the Russian Federation and the contract itself.
THEM. Kiryushin,
A.V. Tyurin
The issue was urgent for accountants, who insisted on the preparation of such a document, recognized as a primary document, on the basis of which the lease payments could be recognized as expenses and, accordingly, the income tax base could be reduced.
The financial department almost twice a year changed its mind on this issue, issuing clarifications that were opposite in meaning, which led the accountants completely astray.
In order to understand the issue of the need to draw up a document persistently required by finance workers, let us turn to the norms of the Tax Code of the Russian Federation, which contain the conditions for classifying rental costs as expenses that reduce the taxable base for income tax.
In accordance with sub. 10 p. 1 art. 264 of the Tax Code of the Russian Federation, other expenses related to production and sale include rental (leasing) payments for leased (accepted for leasing) property. There are no instructions on the mandatory drawing up of monthly acts to the lease agreement.
At the same time, the right of the taxpayer to reduce taxable profit by the amount of expenses is made dependent on the validity, documentary evidence of such expenses and on the condition that they are made to carry out activities aimed at generating income (clause 1 of article 252 of the Tax Code of the Russian Federation).
Justified costs are understood as economically justified costs, the assessment of which is expressed in monetary terms.
Documented expenses are understood as expenses confirmed by documents drawn up in accordance with the law. Russian Federation, or documents drawn up in accordance with the customs of business turnover applied in a foreign country in whose territory the corresponding expenses were made, and (or) documents indirectly confirming the expenses incurred (including a customs declaration, a business trip order, travel documents, a report on the work performed in accordance with the contract).
According to Art. 313 of the Tax Code of the Russian Federation, primary accounting documents (including an accountant's certificate), analytical tax accounting registers and the calculation of the tax base are confirmation of tax accounting data.
Requirements for primary accounting documents are contained in Art. 9 federal law dated November 21, 1996 No. 129-FZ “On Accounting” (hereinafter referred to as the Accounting Law). In accordance with paragraphs 1 and 2 of the said article, all business transactions carried out by the organization must be formalized with supporting documents. These documents serve as primary accounting documents on the basis of which accounting is maintained.
Primary accounting documents are accepted for accounting if they are drawn up in accordance with the form contained in the albums of unified forms of primary accounting documentation.
Documents, the form of which is not provided for in these albums, must contain the following required details: Title of the document; date of preparation of the document; the name of the organization on behalf of which the document is drawn up; the content of the business transaction; business transaction meters in physical and monetary terms; the names of the positions of persons responsible for the performance of a business transaction and the correctness of its execution; personal signatures of the said persons.
A unified form of such a primary document as an act to a lease agreement has not been developed, therefore it can be drawn up in any form, indicating the mandatory details mentioned in Art. 9 of the Law "On Accounting".
In accordance with Art. 252 of the Tax Code of the Russian Federation, expenses aimed at generating income can be confirmed using any documents indirectly confirming the expense: a lease agreement, an act of acceptance and transfer of premises, invoices, payment documents and an invoice. It is the invoice in accordance with paragraph 3 of Art. 168 of the Tax Code of the Russian Federation is directly related to the date of the provision of services and directly indicates the fact of their provision (see letter of the Ministry of Finance of Russia dated February 8, 2005 No. 03-04-11 / 21).
Thus, tax and accounting legislation requires that expenses be substantiated only by such documents that are provided for and drawn up in accordance with the legislation of the Russian Federation.
Let's turn to the Civil Code of the Russian Federation. The rent must be paid by the tenant in a timely manner in the manner, on the terms and within the terms determined by the lease agreement (Article 614 of the Civil Code of the Russian Federation). In the event that they are not defined by the contract, it is considered that the procedure, conditions and terms that are usually applied when renting similar property under comparable circumstances have been established.
The Civil Code of the Russian Federation does not contain instructions for the mandatory drawing up of monthly acts to the lease agreement for premises.
At the same time, according to the general rules on contracts of part one of the Civil Code of the Russian Federation, such a document may become mandatory if the parties in the contract indicate the monthly preparation of acts for the provision of rental services (clause 1, article 432 of the Civil Code of the Russian Federation).
Thus, civil law gives the parties to the lease agreement the right to attribute to the essential terms of the agreement the mandatory drawing up of periodic acts confirming the fulfillment of the lease agreement.
Provision of property for rent for tax purposes in accordance with paragraph 5 of Art. 38 of the Tax Code of the Russian Federation is referred to the category of services, which is understood as an activity, the results of which do not have a material expression, are realized and consumed in the course of this activity.
As noted in the letter of the Federal Tax Service of Russia for Moscow dated March 26, 2007 No. 20-12 / 027737, if the contracting parties conclude a lease agreement and sign an act of acceptance and transfer of the property that is the subject of the lease, then the service is sold (consumed) by the parties to the agreement.
Consequently, when calculating the tax base for income tax, the lessor organization takes into account the amount of income from the sale of such a service, and the lessee organization takes into account the costs associated with the consumption of this service.
At the same time, income and expenses are taken into account regardless of the signing of the act of acceptance and transfer of services, unless otherwise follows from the terms of the transaction. The terms of the transaction may provide for the mandatory drawing up of monthly acts. Then the rental costs should be taken into account on the basis of the acts mentioned in the contract.
The position of the financial department
Letters of the Ministry of Finance of Russia dated November 9, 2006 No. 03-03-04/1/742, the Federal Tax Service of Russia dated September 5, 2005 No. 02-1-07/81, the Federal Tax Service of Russia for Moscow dated March 26, 2007 No. 20-12/027737
The Ministry of Finance of Russia and the Federal Tax Service of Russia adhere to the above point of view.
Thus, the amount of lease payments and the procedure for their transfer are established by a lease agreement concluded in accordance with the rules established by civil law.
In view of the foregoing, the preparation of a monthly act for the provision of rental services is mandatory if there is a corresponding indication in the rental agreement. In this case, documentary evidence of the provision of services for the relevant period will be: an act of acceptance and transfer of rental services, an invoice, an invoice.
If the lease agreement does not provide for the execution of a monthly act of acceptance and transfer of the service, then the lease agreement and the act of acceptance and transfer of property - the subject of the lease agreement, along with invoices and payment documents on the payment of lease payments, are sufficient documentary evidence of the expenses incurred by the tenant organization in the form of lease payments .
Deal
Upon termination of the lease agreement, the tenant must return the property to the landlord (Articles 610, 622 of the Civil Code of the Russian Federation). In accordance with Article 655 of the Civil Code, the return of the leased real estate is carried out according to the deed of transfer signed by the parties, unless otherwise provided by the agreement. The date of signing the acceptance certificate is the date of transfer of the premises to the lessor. Therefore, if the act was not drawn up, then the tenant did not formally transfer the property and must pay lease payments for the entire time after the expiration of the contract until the moment the acceptance certificate is signed. The very fact of the expiration of the lease term or the receipt of a notice of termination of the contract without the transfer of property under the act does not indicate the termination of the lease relationship (information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 11.01.02 No. 66 Review of the practice of resolving disputes related to the lease).
We quote the document. If the lessee fails to return the leased property or returns it untimely, the lessor has the right to demand payment of the rent for the entire period of delay. In the event that the specified payment does not cover the losses caused to the lessor, he may demand their compensation. In the event that the contract provides for a penalty for the untimely return of the leased property, losses may be recovered in full in excess of the penalty, unless otherwise provided by the contract (Article 622 of the Civil Code of the Russian Federation).
However, an analysis of judicial practice indicates that the act of acceptance and transfer is not always drawn up by the parties. For example, the tenant, after the expiration of the lease agreement, simply vacates the rented premises, believing that by such actions he has demonstrated his unwillingness to continue the agreement and his obligation to rent the premises has been fulfilled. Or, having received a notice from the landlord about the desire to terminate the contract, the tenant simply moves out of the office, believing that the lease has ended. However, this misconception can be quite costly for the tenant.
Tenant risks
If the tenant continues to use the property after the expiration of the lease term, then the contract is considered renewed on the same terms for an indefinite period (clause 2, article 621 of the Civil Code of the Russian Federation). It follows from the interpretation of this rule that regardless of whether the tenant has vacated the premises or not, the lease agreement continues and the mutual rights and obligations of the parties remain in force. This means that the tenant will have to pay for all the months when he did not actually use the premises, up to the moment the former office is properly handed over to the landlord, that is, until the signing of the acceptance certificate.
The only chance to avoid paying extra months is to prove in court that after the expiration of the contract, the tenant did not use the premises and did not intend to continue the lease relationship.
After the expiration of the term, the lease agreement was automatically extended for the same period by mutual agreement of the parties in accordance with the rules of paragraph 2 of Article 621 of the Civil Code. The tenant did not want to renew the contract for another period and verbally, until the time it expired, repeatedly informed the landlord of his unwillingness to continue renting the premises, offered to draw up an acceptance certificate, but the landlord did not react to this. The tenant vacated the premises and notified the landlord by letter. Also, the tenant said in a letter that he did not want to continue the rental relationship. After some time, the landlord filed a claim for the recovery of rent from the tenant for the time since the expiration of the contract, citing the absence of an acceptance certificate. However, the landlord managed to win the case. He proved that he did not actually use the premises, submitted to the court copies of the letters that he sent to the landlord, as well as a letter from the organization engaged in the technical operation of the building, which confirmed that the premises were vacated, sealed, the keys to it were handed over by the tenant (ruling of the Federal Arbitration Court Volga-Vyatka District dated February 28, 2007 in case No. A43-4787 / 2006-41-137). |
An important point: the tenant leaving his property in a rented non-residential premises is interpreted by the courts in the direction of using this premises and, accordingly, the rental fee will be charged. Thus, the court satisfied the landlord's claim for the recovery of rent, considering that the fact that the tenant's property was located in the disputed premises indicates the continued use of the leased item and the continuation of contractual relations (ruling of the Federal Arbitration Court of the Urals District dated January 29, 2009 in case No. A50-2825 / 2009 ).
A situation may also arise when the landlord refuses to sign the acceptance certificate. He can do this for two reasons: either he has complaints about the technical condition of the premises (and then the situation is agreed upon by the parties), or he deliberately evades acceptance. The Supreme Arbitration Court clarified that in this case there is a delay of the creditor and the rent during this time should not be paid (information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 11.01.02 No. 66). However, even the fact that the landlord evaded acceptance of the premises does not relieve the tenant from the burden of proving that he did not use the premises (ruling of the Federal Arbitration Court Northwestern District dated December 28, 2009 in case No. A26-1241/2009).
Precautionary measures
In order to exclude a disputable situation in advance, it is better for the parties to prescribe the procedure for the delivery and acceptance of the leased object even at the conclusion of the contract (paragraph 2, clause 1, article 655 of the Civil Code of the Russian Federation). So, in the contract it can be clarified that after the expiration of the lease or after receiving a notice of termination of the contract, the tenant is obliged to send a letter to the landlord and notify him of his readiness to rent out the premises. In the event that the landlord, for some reason, does not want to accept the premises, he is obliged to provide the tenant with a reasoned refusal within the period specified in the contract. If such a written refusal is not submitted, the tenant has the right to notify the landlord in writing that the premises are vacated. Such a condition of the contract, on the one hand, does not infringe on the interests of the landlord: if the premises are rented out in poor condition, he will be able to indicate these data as a justification for refusing to sign the act. At the same time, this enables the tenant to protect himself from the obligation to pay for extra months of rent, since the termination of the contractual relationship will no longer be tied to the moment the act is signed by the parties.
If there is no such condition in the contract, and the landlord evades signing the acceptance certificate, the tenant may refer to actual actions that would confirm his unwillingness to renew the lease agreement (for example, the removal of property, the conclusion of lease agreements with other contractors, etc.). ). In addition, letters from the tenant can be submitted to the court that would confirm that he acted in good faith and took steps to transfer the premises to the landlord. For example, letters with a proposal to draw up an act of acceptance and transfer, notifications of no intention to continue the lease relationship, that the premises are ready for delivery, etc. Therefore, it is important to keep copies of all correspondence that indicates that the tenant intended to terminate the lease agreement ( decision of the Federal Arbitration Court of the North-Western District of December 7, 2007 in case No. A56-39678 / 2006). Also, the tenant can prove in court that the premises have been vacated by submitting an inspection report. An examination of the premises may be ordered by court order when the question arises as to whether the tenant used the disputed premises (decision of the Moscow Arbitration Court of February 5, 2008 in case No. A40-57041 / 07-11-526).
Ultimately, nothing prevents the tenant from referring to the testimony of witnesses in support of his position. So, in one of the cases, after the termination of the lease agreement for the store, the landlord did not appear at the acceptance of the premises. The tenant drew up an act of acceptance and transfer unilaterally and vacated the premises. Later, the landlord filed a lawsuit in court for the recovery of rent, submitting to the court an act on the incomplete release of the tenant of the premises. However, the court dismissed the claim, concluding that the tenant nevertheless vacated the store after the expiration of the contract, since, according to the testimony of witnesses, the store's trading floor was not working (decree of the Federal Arbitration Court of the Far Eastern District dated April 6, 2004 in case No. F03-A59 / 04-1/654).
Topic questions
Is it possible not to pay rent payments in case of early vacation of the occupied premises?
As pointed out by the Supreme Arbitration Court, the early release of the leased premises (before the termination of the lease agreement in accordance with the established procedure) is not the basis for the termination of the tenant's obligation to pay rent (information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 11, 2002 No. 66).
Does it make sense for the tenant to draw up and sign the acceptance certificate unilaterally if the landlord evades acceptance?
No, it doesn't. The acceptance certificate must be signed by both parties to the lease agreement. An act drawn up by the tenant unilaterally will not be recognized by the court as evidence of the termination of the lease agreement (decree of the Federal Arbitration Court of the Far Eastern District dated April 23, 2009 in case No. F03-1476 / 2009).
Source magazine Lawyer company
In today's article, we propose to discuss the letter of the Ministry of Finance dated May 30, 2016 No. 31-11410-09-10 / 15182. It is devoted to a question that is relevant for many business entities: what are the primary documents to draw up lease relations? The most important! The Ministry of Finance explained in it whether it is necessary to draw up acts of work (services) performed on a monthly basis for rent.
The main conclusion of the specified letters The Ministry of Finance is as follows: to confirm the implementation of a business transaction of rent, one lease agreement is not enough! Primary documents confirming the fact are also needed:
1) transfer of property for rent;
2) provision of rental services during reporting period.
Acceptance and transfer of the leased object
As stated in letter, the fact of the transfer of the leased object from the lessor to the lessee must be confirmed by the relevant primary document. "According to the whole form: inventory, protocol, handed over, accepted ...".
As a rule, the parties sign an act of acceptance and transfer of the leased object for this. The form of this act is not approved (it is drawn up in any form, taking into account all the mandatory details of the primary document, named in Art. 9 of the Accounting Law).
You can use the standard form No. OZ-1
For property rentals, refer to obligation to draw up of this act is expressly contained in Art. 795 GKU. The authors of the scientific and practical commentary on Art. 795 GKU note that: “Business practice provides for the inclusion in the content of such an act detailed description real estate object, its location, the value of this object at the time of transfer, a description of its sanitary and technical condition. The acceptance certificate may be accompanied by technical documentation for the object, a list of equipment, fixtures, furniture and other things that are transferred along with the building or structure, copies of documents certifying the landlord's ownership of the leased object, and other documents as agreed by the parties "*.
* Scientific and practical commentary to the Civil Code of Ukraine of the "LIGA-LAW" system.
It is from the moment of signing this act (unless otherwise provided by the contract) that the countdown to the use of the leased object will begin.
If the act of acceptance and transfer of the leased object was not drawn up by the parties, then it is considered that there was no actual use of the leased object, which means that the landlord does not have the right to demand payment of lease payments from the tenant (see, for example, decision of the Economic Court of the Chernihiv region dated June 14, 2016 in case No. 927/470/16).
(!) The act of acceptance and transfer of the leased object must also be drawn up in relation to the lease of any other property (not just real estate). For example, in relation to the rental of a vehicle, the Economic Court of the Dnipropetrovsk Region ( judgment dated July 29, 2015 in case No. 904/5797/14) noted: only monthly acts of the provided rental services cannot be the basis for the actual confirmation of the transfer of the rental object for use.
Primary document for rent payments
Ministry of Finance in letter notes that a separate primary document must be drawn up and to confirm the provision rental services within a month (for rent payments). As a rule, an act of performed work (services) is drawn up for this. However, the parties may provide in the contract drawing up another primary document confirming the calculation of rental services.
Please note: the Ministry of Finance in letter talks about rent as a service. But is rent a service? From which side to look.
From point of view civil legislation, rent is not a service (from a tax point of view, it is a service). This was also brought to the attention of the Ministry of Justice in letter dated February 23, 2004 No. 8-11-19 and Vasu in definition dated March 26, 2015 No. K/9991/92743/11.
With the fact that the lease agreement by its nature is not a contract for the provision of services, the tax authorities themselves agree (category 103.25 ЗІР).
And since rent is not a service, then from a legal point of view, an act of work performed for rent may not be drawn up. To confirm rental services, in principle, a contract, an act of acceptance and transfer and payment documents for the transfer of rental payments are sufficient.
But! Ministry of Finance in letter and the taxmen themselves letter of the SFSU dated January 19, 2016 No. 919/6/99-99-19-03-02-15) insist that there should be acts for the provision of rental services, because any operation in accounting should be based on primary documents (paragraph 1 of Art. 9 of the Accounting Law).
By and large, the landlord in this case could get by with compiling a bookkeeping certificate as a primary document. But after all, the tenant, in order to confirm the fact of the lease operation, also needs a primary document.
Acts for rent are also important for VAT accounting (rent fits well into the tax definition of the supply of services - p.p. 14.1.185 NKU). After all, tax liabilities for VAT arise on the first of the events: receipt of an advance payment or document signing certifying the fact of the provision of services ( clause 187.1 of the TCU). Therefore, it is impossible to do without a primary document confirming the fact of service delivery!
It is better to draw up acts of completed work (services) for rent. They are important not only for accounting, but also for the calculation of tax liabilities for VAT.
Is it possible to draw up acts not monthly, but less often: for example, once a quarter?
If you are a VAT payer, then acts should be drawn up monthly(especially in terms of rent with subsequent payment). After all, taking into account the rule of the first event for VAT, the tax authorities will insist that since the rental service is actually provided in the current month, then the VAT obligations for it should also be reflected in the current month. And they are unlikely to be convinced by the fact that acts are drawn up with a different frequency, for example, quarterly.
What date to put in the acts for rental services?
"Primary" must be compiled at the time of the implementation of the operation. If this is not possible, immediately after its completion ( Part 1 Art. 9 of the Accounting Law).
Ministry of Finance in letter notes that the date of drawing up the act for rental services (or other primary document replacing it) is the date of its signing.
Therefore, it is better to date the lease certificates the last calendar day of the reporting month(if it falls on a weekend, don't worry, because Accounting Law does not require that primary documents be drawn up only on working days). Draw up a rental act last workers the day of the month is incorrect - it will not cover a part of the month (weekends) and the document will be issued before the completion of the economic operation.
Special attention deserves the situation when the act of rent is drawn up on the first working day of the next month. In accounting, the lease transaction must be carried out in the month in which it was carried out ( paragraph 5 of Art. 9 of the Accounting Law), regardless of what date the act was issued (this is also noted by the Ministry of Finance in letter).
But for VAT, the date of the first event is important. Therefore, if the first event is the signing of the act, then in fact, in this situation, VAT liabilities will arise only in the next period. Taxpayers won't like it letter of the STAU dated May 20, 2010 No. 9895/7/16-1517-08, No. 5766/5/16-1518)!
It is better to date rental acts on the last calendar day of the month, even if it falls on a weekend.
Let's give an example of drawing up an act of provided rental services.
In order to understand the issue of the need to draw up a document persistently required by finance workers, let us turn to the norms of the Tax Code of the Russian Federation, which contain the conditions for classifying rental costs as expenses that reduce the taxable base for income tax. In accordance with sub. 10 p. 1 art. 264 of the Tax Code of the Russian Federation, other expenses related to production and sale include rental (leasing) payments for leased (accepted for leasing) property. There are no instructions on the mandatory drawing up of monthly acts to the lease agreement. At the same time, the right of the taxpayer to reduce taxable profit by the amount of expenses is made dependent on the validity, documentary evidence of such expenses and on the condition that they are made to carry out activities aimed at generating income (clause 1 of article 252 of the Tax Code of the Russian Federation).
Act of completed work on the lease of premises: sample download
Although there is a more modern letter from the Ministry of Finance of the Russian Federation dated October 6, 2008 No. No. 03-03-06/1/559, which states - "To document these expenses, documents are required that are drawn up in accordance with the requirements of the legislation of the Russian Federation, including a concluded lease agreement, a lease payment schedule, documents confirming the payment of rental payments, act of acceptance of the transfer of leased property. At the same time, monthly conclusion of acts of services rendered under a lease agreement for the purpose of documentary confirmation of expenses in the form of rental payments for profit tax purposes is not required.
Act of work performed under the lease agreement sample form
Renting this or that commercial premises, citizens are responsible for the safety of property. The actual confirmation of the absence of any claims on the part of the lessor will be an act of work performed under the lease agreement. Special mention needs to be made. Based on the current legislation, drawing up an act of work performed is a matter that relates to the exclusively good will of the compiler of this act.
In principle, if we proceed from the position of the authorities executive power, this act may not be drawn up. There is only one “but”: if you do not want to get problems associated with the use of the premises in the future, this document is best drawn up and signed properly. In addition, the act should be drawn up if you need it for reporting to someone.
Let's try to briefly consider the rules for compiling this act.
How to draw up a certificate of completion under a lease agreement?
The rent must be paid by the tenant in a timely manner in the manner, on the terms and within the terms determined by the lease agreement (Article 614 of the Civil Code of the Russian Federation). In the event that they are not defined by the contract, it is considered that the procedure, conditions and terms that are usually applied when renting similar property under comparable circumstances have been established. The Civil Code of the Russian Federation does not contain instructions for the mandatory drawing up of monthly acts to the lease agreement for premises.
At the same time, according to the general rules on contracts of part one of the Civil Code of the Russian Federation, such a document may become mandatory if the parties in the contract indicate the monthly preparation of acts for the provision of rental services (clause 1, article 432 of the Civil Code of the Russian Federation). Thus, civil law gives the parties to the lease agreement the right to attribute to the essential terms of the agreement the mandatory drawing up of periodic acts confirming the fulfillment of the lease agreement.
About documents to confirm the cost of renting a room
Attention
A unified form of such a primary document as an act to a lease agreement has not been developed, therefore it can be drawn up in any form, indicating the mandatory details mentioned in Art. 9 of the Law "On Accounting". In accordance with Art. 252 of the Tax Code of the Russian Federation, expenses aimed at generating income can be confirmed using any documents indirectly confirming the expense: a lease agreement, an act of acceptance and transfer of premises, invoices, payment documents and an invoice. It is the invoice in accordance with paragraph 3 of Art. 168 of the Tax Code of the Russian Federation is directly related to the date of the provision of services and directly indicates the fact of their provision (see.
letter of the Ministry of Finance of Russia dated February 8, 2005 No. 03-04-11/21). Thus, tax and accounting legislation requires that expenses be substantiated only by such documents that are provided for and drawn up in accordance with the legislation of the Russian Federation. Let's turn to the Civil Code of the Russian Federation.
Consultantplus:forums
The terms of the transaction may provide for the mandatory drawing up of monthly acts. Then the rental costs should be taken into account on the basis of the acts mentioned in the contract. The position of the financial department Letters of the Ministry of Finance of Russia dated November 9, 2006 No. 03-03-04 / 1/742, the Federal Tax Service of Russia dated September 05, 2005 No. 02-1-07 / 81, the Federal Tax Service of Russia for Moscow
Moscow dated March 26, 2007 No. 20-12 / 027737 The Ministry of Finance of Russia and the Federal Tax Service of Russia adhere to the above point of view. Thus, the amount of lease payments and the procedure for their transfer are established by a lease agreement concluded in accordance with the rules established by civil law. In view of the foregoing, the preparation of a monthly act for the provision of rental services is mandatory if there is a corresponding indication in the rental agreement.
Monthly acts for the provision of rental services
Important
But the SUPREME COURT OF THE RUSSIAN FEDERATION, in its DECISION dated February 24, 1999, Case N GKPI 98-808, 809, concluded (excerpt): The applicants' argument that paragraph 7 of the Instruction unlawfully established a value added tax on income from the lease of property under a lease agreement due to the fact that that such an agreement cannot be attributed to contracts for the provision of services cannot be recognized as justified. According to Art. 606 of the Civil Code of the Russian Federation, under a lease (property lease) agreement, the lessor (landlord) undertakes to provide the tenant (tenant) with property for a fee for temporary possession and use or for temporary use. It follows from the content of the above provision of the Law that the lessor provides the property belonging to him to the tenant for temporary possession and use, while receiving income in the form of payment for it.
Act of work performed when renting a room
In accordance with paragraphs 1 and 2 of the said article, all business transactions carried out by the organization must be formalized with supporting documents. These documents serve as primary accounting documents on the basis of which accounting is maintained. Primary accounting documents are accepted for accounting if they are drawn up in accordance with the form contained in the albums of unified forms of primary accounting documentation.
Documents, the form of which is not provided for in these albums, must contain the following mandatory details: the name of the document; date of preparation of the document; the name of the organization on behalf of which the document is drawn up; the content of the business transaction; business transaction meters in physical and monetary terms; the names of the positions of persons responsible for the performance of a business transaction and the correctness of its execution; personal signatures of the said persons.
Do I need a certificate of completion when renting a room
Presentation of an act of work performed under a lease agreement This document, judging by practical data, is usually presented to tax inspectors, as well as other representatives of authorities state power. In practice, an act is usually not drawn up based on the results of a lease agreement between individuals. If the lease agreement is concluded between legal entities (or between an individual and a legal entity), then this act is still better to draw up.
In addition, the certificate of completion will help you in case of disputes with the landlord. Example. The landlord, having provided you with the premises, suddenly demanded the termination of the contract due to "Failure to comply with the requirements for the property received for rent." The landlord refers to the fact that you used the leased property for other purposes, significantly worsened its condition.
Act of completed work lease of premises sample
Some rules for drawing up an act of work performed under a lease agreement
- It is in writing.
- It indicates the serial number, data identifying the property that was leased, the number of the contract, the amount of payment, and more.
- The act must be signed by the parties to the contract. It is advisable (if the act is drawn up on several pages) to sign each page of the document. This will prevent your unscrupulous partner from removing and replacing individual pages from making any special demands on you.
- The text of the document indicates that the scope of the obligation was fulfilled in full, the payment was made without violations, and there are no complaints about the maintenance of the premises.
The legislation of the Russian Federation imposes a number of requirements for supporting business transactions, including competent, in the legal sense, documentation. For a detailed consideration, we will take a sample act of completed work on the lease of premises and try to answer the question of whether acts on the lease of premises are needed.
Acts for the lease of premises
One of the requirements is the obligation of subjects to confirm transactions when renting property with primary documents. Let's look at two main ones:
- Acceptance act - transfer of property for rent (Article 795 of the Civil Code).
It is this document that confirms the fact of the transfer of the subject of the contract for rent, its beginning. Where is the consent of the parties to the legal relationship to take property, the condition of which satisfies the terms of the agreement, found confirmation. Upon return, an act of acceptance and transfer is drawn up, which indicates the end of the lease relationship.
- Act of work performed (services rendered).
This document secures the right to use the object, after signing it by the landlord and the tenant of the premises. If the agreement defines an additional primary document, which is a reflection of the calculations of the services provided (rent of property), then it is drawn up in accordance with the letter of the Ministry of Finance of May 30, 2016 No. 31-11410-09-10 / 15182 p. 15 (hereinafter - Letter No. 15182); letter of the State Fiscal Service No. 919/6/99-99-19-03-02-15 dated January 19, 2016 (hereinafter referred to as Letter No. 919), with the obligatory indication of the amount of the rent. In addition, the need for payment documents confirming the provision, payment for rental services was determined (Letter No. 919).
Often the contract provides for reimbursement by the tenant of the cost of utilities. To do this, the landlord provides the tenant with supporting payment documents from utility suppliers, lists the necessary services. Sometimes it is convenient to additionally issue an act of services rendered with reimbursement of their cost. It is to confirm the lease relationship between the parties (expenses incurred) that these documents are needed.
It is necessary to know that only timely, mutual signing of the above legal forms is legally binding.
Acts for renting premises protect the rights of both the landlord and the tenant
The act is considered legitimate if it was signed by only one party (meaning the contractor) with the obligatory indication of the fact of refusal to sign the opposite party. However, in this case the signatures of the witnesses are required. The refusal does not affect the legal force and may be regarded as a refusal to accept the work or service.
An incomplete (not signed by both parties) act of acceptance - transfer of premises, for example, or its absence at all, can lead to material losses for both parties to the agreement. And in the absence of documents during the inspection that actually confirm the lease, the regulatory authority may regard this situation as a violation of Art. 9 of the Law of July 16, 1999 No. 996-XIV, clause 1.2 of the Regulations approved by Order of the Ministry of Finance of May 24, 1995 No. 88 (hereinafter - Regulation No. 88).
Primary documents
The legislator determined the need to draw up primary documentation as the basis for maintaining accounting. In their absence, the State Fiscal Service will not consider eligible expenses that affect the calculation of taxable profit.
Mandatory clauses present in primary documents
We note the main important information that the primary document should contain in accordance with the norms of the law, for example, an act of work performed under a lease agreement (clause 2.4 of Regulation No. 88):
- Document's name.
- Date of preparation. The Ministry of Finance, by Letter No. 15182, determined the time for drawing up the act of acceptance and transfer of non-residential premises - the day, month, year of signing. We advise you to pay attention to this moment: this date confirms the moment of the actual transfer of the subject of the contract for rent, from which the countdown of its term begins. The time of drawing up the act of work performed (services rendered), as a rule, falls on the last day of the reporting period, when the object is leased.
- Information about the performer (indicated based on the information of constituent documents).
- Customer data.
- The form of compilation is usually tabular, which indicates:
- number in order;
- job title;
- to what extent;
- units;
- the cost of each operation performed. According to the Ministry of Finance, the amount of the lease payment for the period specified by the agreement must be presented by a document without fail;
- total amount. The amount below the table is indicated with and without VAT. The total amount is written in words.
- A mandatory clarification indicating that the landlord has no claims and agrees with the specified data.
- Positions, personal signatures of the persons who made the transaction, indicating the names and initials. These persons are responsible for its execution.
In order for the act of work performed when renting a room to have legal force, it must be correctly drawn up
How the work is done
In order to avoid surprises, when concluding a contract, it is better to agree on the form of this document in advance:
- Issued in writing. A verbal agreement is not legally binding.
- Must contain information about the property.
- If the document has several pages, the signatures of the parties must be on each of them - in order to prevent their substitution.
- By the number of participants in the transaction - two copies.
In the event of disputes between the parties, it is one of the grounds for their resolution by the court.
What to do in case of an error
Here are examples of common problems and ways to solve them:
- The lessor erroneously indicated in the act of work performed (services rendered) a different area of the leased object.
In the agreement, the act of acceptance - transfer - one area, in the act of work performed (services rendered) - another. How to make a clarification? We recommend using the norms of paragraphs 4.2 and 4.4 of Regulation No. 88: the error is corrected by crossing out, writing the correct entry and the date of correction, certified by the signatures of the persons who signed the document. So the legislator established a possible procedure for correcting primary documents.
Another option: before the end of the reporting period, the owner of the leased object draws up a new act with updated data, sends it to the tenant for signing and accounting notes. The cover letter states the reason for the replacement of the document.
- If the mistake was the amount of the lease payment, which entailed a change in the tax invoice, the lessor draws up an adjustment act, specifying the required amount.
A clarification calculation is issued for the originally issued tax invoice and a new tax document with further registration in the Unified Register of Tax Invoices.
If an error is found later (next year), the enterprise makes corrections, guided by P (S) BU 6, and according to tax accounting, the income tax return is specified.
If errors are found in the act of completed work when renting a room, they must be corrected as a matter of urgency
Troubleshooting Features
Find answers to common problems in the table:
Props | How to fill | What is the danger |
Full title | An act of completed work on the lease of non-residential premises can be drawn up in a free form. | Primary documentation, which is anonymized - no name, does not confirm expenses. The tax authorities will charge additional income tax. |
TIN of the customer and contractor | The TIN identifies the organization. The result of the error will be a chargeback. | |
Name, cost | The cost is indicated in rubles, kopecks. The title must be specific. | An inaccurate, vague name, a discrepancy between the cost indicated by the contract and the act of work (services) performed is a sign of an unrealistic transaction. A performance report with clarifications is required (decision of the Arbitration Court of the North-Western District dated December 18, 2015 in case No. A42-8166 / 2014). It can be issued as an annex to the act of work (services) performed. |
Signatures, seals |
If an authorized employee signs under a power of attorney, then his position, initials, details of the power of attorney are indicated. An organization that works without a seal may not put it on. |
An act in which there are no signatures, or the signatures of unauthorized persons are presented, does not give the right to expenses. Ask the counterparty for confirmation of the refusal to print. Otherwise, there may be disputes with the tax organization. |
Agreement | Refer to the contract | This link is optional. However, it will help identify the service. Especially in the case of the conclusion of several contracts at once. |
Names of the parties | You can specify the abbreviated or full, it is not so important. | If the TIN is spelled out correctly, then the inaccuracy in the name of the organization will not interfere with taking into account expenses (letter of the Federal Tax Service of Russia dated February 12, 2015 No. GD-4-3 / 2104). It's better to fix it anyway. |
PPC parties | It is better to refer to the contract and compare with an extract from the Unified State Register of Legal Entities |