Renting an apartment to an organization: renting housing from an individual for an employee on a business trip, documents confirming hiring, for accounting, rental agreement

Is it possible to rent?

The Civil (Civil Code) and Labor Code (TC) of the Russian Federation provides such an opportunity.

Important. Article 671 of the Civil Code of the Russian Federation establishes that residential premises are rented to a legal entity on the basis of a lease agreement or other similar agreement.

In this case, the rent is paid by the organization (company), but the apartment can only be used for citizens.

Pros and cons of the deal

The property owner will feel the following advantages of a transaction with a legal entity:

long-term agreement, because the organization is not interested in constantly looking for new options and tries to conclude a long-term agreement;
stability of payment , which is controlled by the organization’s accounting department;
almost complete elimination of fraud with the correct approach to checking the constituent documents before concluding an agreement and especially during state registration of the document;
simplification of resolving controversial issues through the court, because the legal entity will not disappear anywhere.

A significant disadvantage is found in the case when the rented apartment is used for accommodation of business travelers, i.e. actually becomes a hotel. Frequent changes of tenants may not please the neighbors, which means unnecessary claims and complaints.

Of course, not entirely conscientious owners see the disadvantage in the fact that it is impossible to hide real income from renting out an apartment, because... all payments are made strictly according to the agreement, but for a law-abiding citizen this is rather a plus that simplifies the payment of taxes.

Deal nuances

When renting out an apartment to an organization, the following nuances of the transaction can be highlighted:

The premises are rented out under a lease agreement concluded between an individual (lessor) and a legal entity (tenant). The organization may ask to conclude another agreement for the temporary use of the apartment.
If the agreement is concluded for a period of more than one year, then it is subject to state registration (clause 2 of Article 609 and clause 2 of Article 651 of the Civil Code of the Russian Federation). For shorter rental periods, registration is not required.
The organization is required (clause 1 of Article 230 of the Tax Code of the Russian Federation) to keep records of income paid to an individual. At the request of the apartment owner, she charges and transfers personal income tax to the budget.
The apartment is transferred to the tenant under the Transfer Certificate in accordance with Article 655 of the Civil Code of the Russian Federation.

Important. The law does not limit the tenant's choice. It may be a private company, a government organization or company, a military unit, etc.

When renting out an apartment to military personnel, it is necessary to take into account that the agreement has an established, military form, and prepayment is not provided.

Does the owner need to submit a 3-NDFL declaration?

When an apartment is rented out to an organization by an individual, all responsibilities for accounting for income fall on the tenant.
Before April 1, the organization is obliged to submit to the tax authority (at its location) data on the actual income paid to the citizen for the reporting year, indicating the accrued and transferred tax. This frees the lessor from filing a declaration in Form 3-NDFL. The organization sends a certificate to the tax office in form 2-NDVL.

If the organization has not made tax deductions, then the owner of the property must submit a 3-NDFL declaration by April 30. Typically, such circumstances arise when the landlord submits a corresponding statement to the tenant that he will pay the tax himself. In accordance with Article 224 of the Tax Code of the Russian Federation, personal income tax is 13% of the rental income received.

When a homeowner registers as an individual entrepreneur (IP), he acts as a legal entity. He himself submits information to the tax office in form 2-NDFL and pays a tax of 6% of the income received.

The main thing that needs to be fixed in the contract is the procedure for early termination of the agreement

Expert opinion

Murat Borokov

Head of Department at Kalinka Legal Services

— Lease agreements must clearly state the tenant’s living conditions: who can be in the premises (tenant, family members, guests), whether he has the right to live with animals and what kind of animals, and so on.

But the most important thing that needs to be fixed in the contract is the procedure for early termination of the agreement. Most controversial situations arise precisely because of this. Let’s say that for some reason the tenant cannot or does not want to pay the rent, or the owner has decided to sell the apartment and the tenant needs to move out as soon as possible.

It is important to stipulate in the contract penalties for violations of the terms of the agreement: whether the security deposit remains with the landlord, for what period of time the tenant must inform the owner that he will not rent the property, etc. In my practice, there was a case when the buyer of an apartment was ready to pay a large compensation, if only the tenant would move out and the housing would be sold without encumbrances.

The landlord should also remember that he must pay tax on the rental of housing, and tax evasion is a violation of the Criminal Code, which entails criminal liability.

In fact, tax authorities can find out about the rental of an apartment even without concluding an agreement. It is very easy to identify this by tracking bank card transactions. Law enforcement agencies use systematic payments (regularity, equal amount) when proving rental relations between the owner and the tenant.

How to draw up a contract correctly?

Important. The lease agreement must be drawn up in writing (clause 1 of Article 609 of the Civil Code of the Russian Federation) with the signature of the parties and the seal of the organization.

The document provides:

complete information about the landlord and tenant;
apartment address;
rental period;
rent amount;
payment order.

The condition of the premises, the presence of furniture and equipment is recorded in the Transfer Certificate. The contract can reflect:

responsibilities of the parties for maintaining the premises, incl. for repairs;
as well as the procedure for paying utility bills;
a separate clause sets out the conditions for early termination of the agreement.

The fundamental issue is the use of the rented premises. that the contract stipulate who has the right to live in the apartment (permanent residence of an employee with his family, temporary residence of employees before purchasing permanent housing, accommodation of business travelers, etc.).

It is advisable to stipulate the composition of residents, i.e. maximum number of residents. It is advisable to indicate the need to agree with the landlord on changes in the composition of residents.

When concluding a contract, the following documents will be required:

identity card of an individual;
document confirming ownership;
certificate of TIN (it must be included in the document);
certificate of state pension insurance;
bank details of the parties.

Important. If the owner is registered as an individual entrepreneur, then a document confirming his registration is additionally provided, as well as a copy of the decision on the transition to a simplified taxation system and an extract from the Unified State Register of Legal Entities.

If the case goes to court, the contract will play an important role

Expert opinion

Gleb Podyablonsky

lawyer at URVISTA

— Firstly, remember that only the owner or the owner’s representative who has a notarized power of attorney can rent out housing. If the apartment belongs in shares to several citizens, then everyone’s consent is required to rent out the apartment.

How to draw up a rental agreement?

The landlord and tenant regulate their relationship using a residential lease agreement. This document must reflect the “essential” conditions: the subject of the contract, the rental period and the price. They are the ones that must be included in the contract. Without them, according to paragraph 1 of Art. 432 of the Civil Code of the Russian Federation, the contract is considered not concluded.

Is it possible to rent and lease an apartment without a contract?

There is no clear answer to the question whether it is possible to rent out an apartment without a contract. The law does not provide penalties for failure to draw up a lease agreement for either the landlord or the tenant. According to the civil code of the Russian Federation - in particular, Art. 609 of the Civil Code of the Russian Federation, - for this type of relationship a simple written form of agreement is provided. But remember that a contract is a document. And if you and the tenants or owners have disagreements and the matter goes to court, then the agreement will play an important role.

Also remember that the court does not take into account witness testimony, but only receipts for receipt of funds, acceptance certificates, payment receipts, and so on.

Is renting out an apartment subject to tax?

Renting out housing is a type of making a profit, on which, according to general rules, you must pay a tax of 13%. The owner must annually submit an income tax return as an individual, if he is not an entrepreneur, and pay tax to the treasury. Tax evasion entails a fine of 20 to 40% of the debt and penalties for each day of delay. And willful defaulters can even be brought to criminal liability.

Does the tax office track rental housing?

The tax service does not track the rental of housing, but can find out through government agencies whether housing is rented or not. It is very difficult to prove the fact of receiving money for the use of housing. If only tax inspectors receive documents confirming the transfer of money for rent - for example, receipts. Otherwise, the owner can always declare that he let the person live for free and has no income from this.

Renting on a business trip

Many people are interested in whether it is possible to rent an apartment from individuals on a business trip. Yes, but there are some nuances.

Is it possible for an employee to rent housing from an individual?

An employee of an organization has the right to rent residential premises at his own discretion with compensation for expenses in accordance with the collective agreement and regulations (Article 168 of the Labor Code of the Russian Federation and Clause 11 of the Regulations approved by Decree of the Government of the Russian Federation of October 13, 2008 N 749). The maximum amounts of compensation for accommodation without taxation are stipulated in clause 3.Article 217 of the Tax Code of the Russian Federation and are:

for Russian cities – 700 rubles/day;
for business trips abroad – 2500 rubles/day.

To legally rent an apartment on a business trip, you must conclude a Residential Tenancy Agreement with its owner. The document is drawn up in written form, and handwritten, printed or typed versions are allowed. It is important that it reflects:

full personal data of the landlord and tenant, indicating the details of identity cards (passports);
type of residential premises (apartment, room, house) and its address;
rights and obligations of the parties;
rent and terms of its payment;
duration of the contract, length of stay;
date of document preparation.

Important. The agreement is drawn up in 2 copies.

Registration and notarization are not provided.

To complete the document, it is enough to present passports of both parties.

However,
the tenant is recommended to check the document confirming the right to dispose of the premises (property) and the presence of other tenants.
In practice, another option is possible: living in a rented apartment. It can be removed by the organization where the seconded employee of another company is sent.

In this case, the tenant issues a receipt for payment for accommodation in the rented premises, having received cash.