- SNiP 3.03.01-87 Load-bearing and enclosing structures
Document type:
Decree of the USSR State Construction Committee dated December 4, 1987 N 280
SNiP dated 04.12.1987 N 3.03.01-87
Construction codes and regulations of the Russian Federation
Accepting body: Gosstroy of the USSR
Status: Active

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

SP 13-102-2003 Rules for inspection of load-bearing building structures of buildings and structures
Document type:
Resolution of the State Construction Committee of Russia dated August 21, 2003 N 153
Code of Rules (SP) dated 08/21/2003 N 13-102-2003
Codes of practice for design and construction
Accepting body: Gosstroy of Russia
Status: Active
Document type: Regulatory and technical document
Start date: 08/21/2003
Published: official publication, M.: Gosstroy of Russia, State Unitary Enterprise TsPP, 2003

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

On the entry into force of part two of the Civil Code of the Russian Federation (with commentary) (as amended on November 26, 2001)
Document type:
Code of the Russian Federation dated January 26, 1996 N 14-FZ
Federal Law of January 26, 1996 N 14-FZ
Federal Law of January 26, 1996 N 15-FZ
Host body: State Duma of the Federal Assembly of the Russian Federation
Status: Active
Document type: Regulatory legal act
Start date: 03/01/1996
Published: Collection of Legislation of the Russian Federation N 5, 01/29/96, Art. 410, 411, Rossiyskaya Gazeta, N 23, 02/06/96, N 24, 02/07/96, N 25, 02/08/96, N 27, 02/10/96
For information about the meaning of document attributes, see "Legal Information"

General provisions
A diagnostic examination of the apartment was carried out to determine the nature and specifics of the work performed.
The basis for conducting a diagnostic examination is the Construction Expertise Agreement, which specifies the purpose of the examination and the list of work that needs to be performed.
When carrying out the survey work, the data obtained were recorded and photographs were taken.

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

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

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

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

Civil Code of the Russian Federation

Article 623. Improvements to leased property

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

Commentary on Article 623. Leasehold improvements:

1. As a general rule, the tenant is not obliged to improve the leased property. But if he did make these improvements, then based on the principle of justice their legal consequences should be determined.
Improvements should be understood as such changes to the leased property during the contract period that increase its consumer properties or value. Moreover, the tenant should not have the obligation to produce them.

2. A distinction is made between improvements that are separable and not separable from the leased property, as well as those made with or without the consent of the lessor.
Improvements that can be separated from a thing without harm to it are recognized as separable. Accordingly, inseparable improvements, when separated from a thing, worsen its condition, as a result of which it acquires defects. The law does not say what the degree of damage to a thing must be in order for improvements to be recognized as inseparable. Therefore, one should come to the conclusion that the damage can be of any kind, the main thing is that as a result of it the thing has defects for which the tenant is responsible.
As for the lessor's consent to make improvements, it can be given in the agreement itself or separately, but necessarily in the form provided for this agreement. If the nature and scope of improvements are not specified in the lessor's consent, it should be assumed that any improvements that do not change the purpose of the leased property are permitted. If the requirement regarding the form in which the lessor's consent must be expressed is not met, the improvements must be recognized as having been made without the lessor's consent.
Separable improvements to the leased property made by the tenant are recognized as his property, which he can dispose of at his own discretion. At the end of the lease, the severable improvements must be separated from the leased property. Otherwise, they will end up in the possession and use of the lessor, and the ownership of them will become ephemeral.
The rule of paragraph 1 of Article 623 of the Civil Code is dispositive. The lease agreement may establish that separable improvements belong by right of ownership to the lessor or a third party.

3. Inseparable improvements are inextricably linked with the leased property, and therefore part of it becomes the property of the lessor. However, a tenant who has made improvements at his own expense and with the consent of the lessor has the right, after termination of the contract, to be reimbursed for the cost of these improvements. Reimbursement for the cost of improvements is made at the end of the lease agreement, i.e. taking into account their wear and tear.

4. The lease agreement may provide for a rule different from that set out in paragraph 2 of the comment. Art. Thus, the lessor can relieve himself of the obligation to reimburse the cost of inseparable improvements to which he agreed. Conversely, the tenant may acquire the right to compensation for the cost of inseparable improvements made without the consent of the lessor, including during the term of the contract. However, both must be provided for in the contract.

5. The tenant has no right to compensation for the cost of inseparable improvements made without the consent of the lessor, unless otherwise provided by law. This is fair because such improvements are subject to the whims of the tenant. Moreover, in paragraph 3 comment. Art. This means the absence of any consent from the lessor. If, at the conclusion of the contract, the latter allowed to make inseparable improvements, but did not specify which ones, consent is considered to be received. The law may also provide for cases when the landlord is obliged to compensate the tenant for the cost of inseparable improvements that were made without his consent at all - both direct and indirect (see Article 662 of the Civil Code).

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

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

Notes:

Inseparable improvements

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

If these improvements were made by the tenant with the consent of the landlord, then the tenant has the right to compensation for the cost of the improvements made by him.
When transferring capital investments made to the lessor, costs for completed capital work, subject to compensation by the lessor, are written off by the lessee from the credit of account 08 in correspondence with the debit of account 76 (clause 35 of the Methodological Instructions for Accounting for Fixed Assets).
If the landlord does not compensate the tenant for the cost of the inseparable improvements made, then the tenant, in our opinion, can write off all his expenses from the credit of account 08 to the debit of account 91 as part of other expenses.

According to PBU 6/01 “Accounting for fixed assets”, capital investments in leased fixed assets are taken into account as part of fixed assets. In this case, we are not talking about any capital investments, but only about those that, in accordance with the concluded lease agreement, are the property of the tenant (clause 35 of the Methodological Guidelines for Accounting for Fixed Assets).

Thus, the lessee can take into account as part of fixed assets only separable improvements to the leased property, since only they can be recognized as his property.

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

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

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

However, in 2008, the approach of the Ministry of Finance became more strict. According to clarifications that appeared in 2008, capital investments made by the tenant in the form of inseparable improvements in leased real estate objects, included in the tenant’s fixed assets, reimbursed (not reimbursed) by the lessor, are subject to taxation with corporate property tax until their disposal under the lease agreement . At the same time, the issue of ownership of these improvements is not discussed by the Ministry of Finance at all (letters dated October 24, 2008 N 03-05-04-01/37 and dated December 16, 2008 N 03-05-05-01/73). Moreover, from the letter dated October 24, 2008 N 03-05-04-01/37, a very definite conclusion follows that property tax must be paid by the tenant regardless of whether the issues of ownership of improvements are specified in the contract or not. This approach was confirmed by the Ministry of Finance in letter dated March 11, 2009 N 03-05-05-01/17.

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

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

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

In this case, the lessee has the right to depreciate the inseparable improvements made by him to the leased property if two conditions are met:

1) capital investments were made with the consent of the lessor;
2) the cost of capital investments made is not reimbursed by the lessor.

If these two conditions are met, capital investments made by the lessee in the form of inseparable improvements to the leased property are amortized by the lessee over the term of the lease agreement.
The amount of depreciation for inseparable improvements is calculated by the lessee based not on the lease term, but on the useful life determined for leased fixed assets in accordance with the Classification of fixed assets.
This means that the lessee, when determining the useful life, must be guided by the terms established for the depreciation group in which the leased object falls. And it is on the basis of this period that the amount of depreciation for the inseparable improvements made will be calculated.
In this case, the lessee must proceed from the full useful life of the leased object, regardless of how worn out the object is and what its remaining useful life is (letter of the Ministry of Finance of Russia dated July 17, 2009 03-03-06/1/478).

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

Depreciation is accrued by the tenant from the next month after the improvements he made were put into operation. After the lease term ends and the leased object is returned to the lessor, depreciation ceases.

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

Since 2009, depreciation for all depreciable property items has been calculated in the manner specified in the organization’s accounting policies. There are no exceptions for capital investments in the form of inseparable improvements to leased property in Chapter 25 of the Tax Code of the Russian Federation. Therefore, in the general case, they are depreciated by the lessee using the method specified in its accounting policies.

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

Example:
The organization rents space in an office building. The lease period is from February 1, 2009 to January 31, 2011. With the consent of the lessor, the organization at its own expense remodeled and re-equipped the premises, spending 1,000,000 rubles on it. The work was completed in March 2009.
The building in which the rented premises are located belongs to the 10th depreciation group. In this case, the tenant in March 2009 includes inseparable improvements made by him in the amount of 1,000,000 rubles. as part of its depreciable property. Depreciation on these improvements can only be calculated using the straight-line method.
To calculate the amount of depreciation, the lessee must establish the useful life for the improvements made by him based on the periods established for the 10th depreciation group. Let's assume the tenant sets a term of 361 months.
To determine the amount of depreciation that the tenant can take into account monthly as expenses, you need to take the amount of capital investments made (RUB 1,000,000) and divide by the useful life (361 months).
Thus, starting from April 2009, the tenant has the right to monthly take into account as expenses the amount of depreciation for the inseparable improvements made in the amount of 2,770 rubles. (1000,000: 361). Before the end of the lease term, the tenant will be able to take into account the amount of 60,940 rubles in expenses. (RUB 2,770 x 22 months). The remaining capital investment in the amount of RUB 939,060. can be taken into account as expenses only if, at the end of the lease term, the lessor reimburses the lessee for the residual cost of the improvements he has made.
If there is no compensation, the tenant will not be able to take this part of the expenses into account for profit tax purposes.

Note! Chapter 25 of the Tax Code of the Russian Federation allows organizations, when calculating income tax, to write off for indirect expenses up to 10% (and in some cases up to 30% * (42)) the amount of capital investments made in fixed assets (the so-called “depreciation bonus” provided for by paragraph 9, Article 258 of the Tax Code of the Russian Federation).
Can the tenant take advantage of this opportunity and at one time recognize as an expense 10% (30%) of the cost of the inseparable improvements made by him at his own expense?
The Russian Ministry of Finance believes that the tenant does not have such a right, since for capital investments in leased fixed assets a special procedure for calculating depreciation is established, provided for in Art. 258 Tax Code of the Russian Federation. Therefore, the tenant does not have the right to immediately take into account 10% (30%) of the cost of the improvements he has made (letter of the Ministry of Finance of Russia dated 02/09/2009 N 03-03-06/2/18).

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

Another issue that is related to inseparable improvements concerns the amounts of “input” VAT on costs associated with the production of inseparable improvements. Is the tenant entitled to deduct these amounts?

There is no clear answer to this question in the legislation.
In accordance with paragraph 2 of Art. 171 of the Tax Code of the Russian Federation, VAT amounts on goods (work, services), property rights acquired to carry out transactions subject to VAT are accepted for deduction.
When making inseparable improvements, the lessee acquires goods (work, services). Accordingly, deduction of VAT on these goods (works, services) is possible if the improvements made will be used by the tenant in the future when carrying out operations subject to VAT. Thus, the right to deduction depends on the purposes for which the leased property (which includes the improvements made) is used. If for transactions subject to VAT, then the tenant has the right to deduction; if for transactions not subject to VAT, then there is no right to deduction.

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

This is precisely the position taken by the tax authorities (letters of the Ministry of Finance of Russia dated 08/29/2008 N 03-07-11/290, Federal Tax Service of Russia dated 05/18/2006 N 03-1-03/985@, Federal Tax Service of Russia for Moscow dated 01/26/2007 N 19-11/06916, dated 08.12.2006 N 19-11/108507). In addition, in judicial practice there are decisions confirming the need to pay VAT when transferring inseparable improvements to the lessor (see, for example, Resolution of the Federal Antimonopoly Service of the Far Eastern District dated October 20, 2008 N F03-4340/2008) * (44).
Thus, already at the time of making inseparable improvements, the tenant knows that ultimately these improvements will be transferred to the lessor and VAT will be charged on their value upon transfer. Accordingly, on the basis of sub. 1 item 2 art. 171 of the Tax Code of the Russian Federation, the tenant has the right to deduct VAT on goods (work, services) used for the production of inseparable improvements, regardless of the purposes for which he uses the leased property.

Both of these approaches, in our opinion, have a right to exist.
Moreover, both approaches assume that the tenant has the right to take advantage of the deduction in the period when the improvements were taken into account (the corresponding work was completed).

However, officials at the Russian Ministry of Finance have a different view of this problem.
The letter of the Ministry of Finance of Russia dated 04/06/2009 N 03-07-09/19 states that VAT on inseparable improvements to leased property is deductible from the tenant only at the time of their transfer to the lessor. In our opinion, this conclusion does not correspond to the Tax Code of the Russian Federation, which links the right to deduction with the moment of acceptance of goods (work, services) for accounting, and not with the moment of subsequent sale of property (work, services) in the production (performance) of which they were used . But, unfortunately, it cannot be ruled out that the tax authorities will adopt the position set out in the letter from the Russian Ministry of Finance.
Thus, you need to decide for yourself which of the above approaches to use in practice.

Sharp corners of inseparable improvements

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

Three conditions for calculating depreciation
Chapter 25 “Organizational Income Tax” of the Tax Code of the Russian Federation allows tenants to increase their expenses by charging depreciation on the cost of inseparable improvements to leased properties. True, for this it is necessary to fulfill a number of conditions (clause 1 of Article 258 of the Tax Code of the Russian Federation).

Condition one
Improvements created by the tenant must be inseparable. These are capital investments that cannot be withdrawn without causing damage to the leased property (Article 623 of the Tax Code of the Russian Federation).
The question arises: can a major overhaul of a rental property be considered an inseparable improvement?
Neither tax nor civil legislation gives a clear answer. Some courts believe that major repairs of leased property is its inseparable improvement (resolutions of the Federal Antimonopoly Service of the West Siberian District dated April 12, 2007 No. A75-5875/2006, Northwestern District dated October 26, 2006 No. A13-950/2006-04, East Siberian District dated October 30, 2007 No. A78-715/07-F02-8189/07).
At the same time, the Russian Ministry of Finance in its clarifications indicates that in order to recognize the work performed as inseparable improvements, they must be of a capital nature, that is, they must be associated with reconstruction, modernization, and technical re-equipment of property. If expenses are incurred for the ongoing maintenance of fixed assets in working condition, such expenses are written off as part of other expenses at a time as repair expenses (Article 260 of the Tax Code of the Russian Federation). This position is set out in many letters from the Russian Ministry of Finance (for example, dated November 6, 2009 No. 03-03-06/2/215, November 18, 2009 No. 03-03-06/1/762). There are also court decisions with a similar position (resolution of the Federal Antimonopoly Service of the Far Eastern District dated February 22, 2005 No. F03-A51/04-1/4525).

Condition two
It is necessary to obtain the consent of the lessor to carry out capital work to improve the leased property. If the owner of the property has not given his consent, but the tenant has made inseparable improvements, they cannot be depreciated. Please note that permission to carry out the specified work may be initially specified in the lease agreement or formalized in an additional agreement to the agreement.

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

Determining the amount of depreciation
If the tenant fulfills all of the above conditions, he has the right to depreciate the permanent improvements. You can start calculating depreciation from the 1st day of the month following the month in which the object was put into operation (clause 4 of Article 259 of the Tax Code of the Russian Federation).
Before January 1, 2010, the amount of depreciation charges for inseparable improvements was calculated based on the useful life of the leased property. That is, when calculating depreciation, for example, for a fire alarm installed in a rented building, the tenant had to take the service life not of the alarm, but of the building itself.
Starting this year, companies have the right to choose which useful life (inseparable improvement or leased asset) will be included in the calculation. In this case, as before, one must be guided by the Classification of fixed assets included in depreciation groups, approved by Decree of the Government of the Russian Federation dated January 1, 2002 No. 1. Such changes are in paragraph 1 of Art. 258 of the Tax Code of the Russian Federation were introduced by Federal Law No. 281-FZ of November 25, 2009.
Thanks to the innovation, tenants will be able to expense depreciation in a larger amount than before. Thus, the amount of income tax will be less.

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

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

Example 2:
Let's use the condition of example 1. Let's calculate the amount of depreciation that the company will accrue for the entire period of the lease agreement.
If the organization decides to charge depreciation from the useful life of the leased object (building), during the term of the contract it will write off 147,302.99 rubles as expenses. [(RUB 2,074.69 x 11 months) + (RUB 2,074 x 12 months) x x 5 years].
When calculating depreciation over the life of a permanent improvement (fire alarm), the company will expense the entire cost of the capital investment. Moreover, the object will be fully depreciated even before the end of the lease agreement, namely in 61 months - five years and one month.

If the contract is extended or changed
At the end of last year, specialists from the Russian Ministry of Finance issued an explanation that will be useful to tenants who calculate depreciation on inseparable improvements. The first situation, which was examined by specialists from the Russian Ministry of Finance, is as follows. The company made inseparable improvements to the leased property during the period of the lease agreement. Upon expiration of the lease agreement, the tenant, with the consent of the lessor, continues to use the property without executing additional agreements to the original agreement. According to experts from the financial department, such an agreement is considered concluded for an indefinite period and the tenant can continue to charge depreciation on inseparable improvements (letter of the Ministry of Finance of Russia dated October 20, 2009 No. 03-03-06/1/677).
The second situation affects the interests of tenants whose owners of the leased property change during the term of the lease agreement. The question for such companies is: can they continue to depreciate the permanent improvements, or is the original contract considered terminated? And here financiers supported the companies. Based on Art. 617 of the Civil Code of the Russian Federation, the transfer of ownership of leased property to another person is not a basis for terminating the contract or changing its terms. A similar position is held by the Plenum of the Supreme Arbitration Court of the Russian Federation in information letter dated January 11, 2002 No. 66. Therefore, tenants can continue to accrue depreciation on inseparable improvements without any problems and take it into account when calculating income tax (letter of the Ministry of Finance of Russia dated October 20, 2009 No. 03-03-06 /1/677).

Inseparable improvements and bonus depreciation: a compatibility test.
There is another question that accountants have when reflecting inseparable improvements in tax accounting. Is it possible to apply the depreciation bonus provided for in paragraph 9 of Art. 258 of the Tax Code of the Russian Federation? Let us recall that, according to this provision of the Code, an organization can take into account at a time when calculating income tax a part of the expenses (10 or 30%) on capital investments.
Unfortunately, the tax authorities and the Russian Ministry of Finance believe that this cannot be done (letters from the Russian Ministry of Finance dated 02/09/2009 No. 03-03-06/2/18, Federal Tax Service of Russia for Moscow dated 06/18/2009 No. 16-15/061721.2) .
In their opinion, Chapter 25 “Organizational Income Tax” of the Tax Code of the Russian Federation establishes its own accounting procedure for inseparable improvements. It does not provide for the accrual of bonus depreciation. In addition, inseparable improvements are an integral part of the leased property and must be transferred to the lessor at the end of the lease agreement.
One can argue with this position. Inseparable improvements are undoubtedly recognized as capital investments. And in paragraph 9 of Art. 258 of the Tax Code of the Russian Federation we are talking specifically about capital investments. Moreover, the said norm of the Code only states that bonus depreciation cannot be applied to fixed assets received free of charge. This means that the depreciation bonus can also be applied to inseparable improvements.
In addition, all irremovable doubts, ambiguities and contradictions of tax legislation must be interpreted in favor of taxpayers (Clause 7, Article 3 of the Tax Code of the Russian Federation).

VAT disputes
According to paragraph 1 of Art. 146 of the Tax Code of the Russian Federation, the transfer of goods, results of work performed, and the provision of services free of charge are recognized as subject to VAT. It turns out that after the expiration of the lease agreement, the tenant must charge VAT on the cost of inseparable improvements transferred as part of the lease to the owner. This point of view is shared by the Russian Ministry of Finance (letter dated December 31, 2009 No. 03-07-11/341).
Unfortunately, today there is ambiguous arbitration practice on this issue. There are court decisions in which the courts support the position of the Ministry of Finance of Russia (resolutions of the Federal Antimonopoly Service of the Far Eastern District dated October 20, 2008 No. A73-9481/2007-21, Volga District dated June 24, 2008 No. A12-18629/07, Moscow District dated February 19, 2007 No. A40 -31107/06-116-180, etc.).
Some arbitrators side with taxpayers. They come to the conclusion that in the situation under consideration there is no object of VAT taxation, since there is no fact of implementation and transfer of ownership (resolution of the Federal Antimonopoly Service of the North-Western District dated September 30, 2009 No. A56-39570/2008, North-Western District dated April 21, 2006 No. A56-7638/2005). But such solutions are few.
Taking into account the position of the Russian Ministry of Finance and the fact that in most cases the courts support inspectors, it is better for companies to charge VAT on the cost of inseparable improvements when transferring them to the lessor.

Accounting has its own challenges
In accounting, the lessee takes into account expenses for inseparable improvements made to the leased property on account 08 “Investments in non-current assets.” After the cost of inseparable improvements has been formed, the question arises whether they can be transferred to the tenant's fixed assets. There are two points of view.

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

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

Debit 08 Credit 60

— 500,000 rub. — the costs of installing a fire alarm are taken into account.

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

Debit 68 Credit 99

— 1639.34 rub. (RUB 8196.72 x 20%) - a permanent tax asset is reflected.

At the end of the lease, the permanent improvement will be transferred to the lessor. Since the transfer is gratuitous, a non-operating expense is formed in accounting. There are no expenses incurred in the company's tax accounting. The accountant will again have to take into account the differences according to PBU 18/02:

Debit 91-2 Credit 08

— 500,000 rub. — the free transfer of fire alarms is reflected;
Debit 99 Credit 68

— 100,000 rub. (RUB 500,000 x 20%) - reflects a permanent tax liability.

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

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

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

Debit 01 Credit 08
— 500,000 rub. — inseparable improvements were transferred to fixed assets.

From February 2010, the accountant will calculate depreciation:

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

At the end of the lease, the residual value of the permanent improvements will be zero. Therefore, when disposing of inseparable improvements, the accountant will make only one entry:

Debit 02 Credit 01
— 500,000 rub. — the residual cost of the fire alarm system is written off.

L. Klimenkova,
accounting and tax expert

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