All this is very convenient and great, but many people, when starting to register, do not even realize that this is a taxable . But in what amount and in what cases you can be exempt from paying it - read in our article.
Read on the website about the features of exchanging an old apartment for a new building, as well as how to exchange a room or apartment for a house and land with an additional payment.
Under special control
The use of non-monetary forms of payment has a number of advantages over conventional ones carried out through bank accounts:
- banking costs are reduced;
- time savings are achieved;
- there is no need to exclude funds from circulation.
But when using non-cash forms of payment, it is necessary to take into account that such transactions have always attracted the attention of the tax authorities, since when they are carried out, funds do not pass through accounts in credit institutions or the cash desk of the enterprise. This circumstance significantly complicates control by fiscal authorities.
In addition, in the case of using the classic version of commodity exchange, that is, when one property is exchanged for another of equal value, there is no goal of making a profit. Then the meaning of commercial activity, which is precisely generating income, is lost. This circumstance also inevitably attracts the attention of regulatory authorities. Therefore, when making such calculations, it is necessary to have an idea of their legal basis.
It is worth paying special attention to the fact that tax authorities have the right to control barter transactions on the basis of clause 2 of Art. 40 Tax Code of the Russian Federation. And if the deviation of the transaction price from the market price is more than 20%, then the inspectors can recalculate the results of the transaction at market prices and charge additional taxes (Clause 3 of Article 40 of the Tax Code of the Russian Federation).
If the exchange agreement does not agree on the name and quantity of the goods to be transferred to one of the parties, then the agreement is not concluded.
Essence of the contract
When performing a commodity exchange operation, organizations must be guided by the norms of the Civil Code of the Russian Federation. However, in civil law there is simply no such concept, just as there is no definition of a barter transaction. At the same time, the essence of the latter is the exchange of one product for another, that is, there are signs of an exchange operation. Thus, when concluding a barter agreement, one can rely on the rules established in relation to the barter agreement.
The essence of the barter agreement is that each party undertakes to transfer ownership of one product to the other party in exchange for another (Clause 1, Article 567 of the Civil Code of the Russian Federation). Moreover, we are talking specifically about the exchange of a thing for another thing, and not a product in exchange for a service or the right to claim property from a third party. This circumstance is indicated in paragraphs 1 and 3 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 24, 2002 No. 69 “Review of the practice of resolving disputes related to the barter agreement.”
Clause 2 of Art. 567 of the Civil Code establishes that the rules on purchase and sale, defined in Chapter. 30 of the Civil Code of the Russian Federation, but only if they do not contradict the rules provided for in Ch. 31 “Barter” of the Civil Code of the Russian Federation, and the essence of barter.
According to paragraph 1 of Art. 455 of the Civil Code of the Russian Federation, the goods under a sales contract can be any negotiable items.
If the property has been owned for less than 3 years
If a citizen has owned the property for more than three years, then he is exempt from the obligation to pay money to the state , claiming a kind of tax deduction .
This deduction is exactly 13 percent of the transaction amount. Thus, out of 100 percent of the amount of the exchange carried out, not a ruble will be paid to the state.
But if the period of ownership of this property does not exceed three years, at least for one month, this is a reason to pay the tax proposed by the state. Otherwise, the transaction is considered invalid and is not registered.
If there is an exchange in which one housing was owned for no more than 3 years, and the other for more than 3 years, then the owner of the housing that was in his possession for less pays 13 percent of the transaction amount, relating only to his specific housing.
Transfer of rights
The issue of transfer of ownership is resolved based on the norms of civil legislation, and tax authorities agree with this (Letter of the Ministry of Finance of Russia dated August 3, 2006 No. 03-06-01-04/151).
It should be noted that by virtue of Art. 570 of the Civil Code of the Russian Federation, the ownership of the exchanged goods passes to the parties acting as buyers under the exchange agreement, simultaneously after the fulfillment of obligations to transfer the relevant goods by both parties, unless otherwise provided by law or the exchange agreement. That is, as long as the object of the transaction is transferred to only one of the parties, each participant in the transaction retains the right of ownership of their own goods. Therefore, if the party that received the goods loses it in any way, it will be obliged to compensate the counterparty for losses in accordance with Art. 15 Civil Code of the Russian Federation.
When exchanging real estate, the right of ownership to it arises from the moment of state registration of the latter's rights to the received real estate (clause 11 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 24, 2002 No. 69).
general information
Let's take a little dip into history.
Twenty years ago, during the existence of the Soviet Union, such a thing as private property did not exist at all.
All real estate was state-owned, which means that all transactions that took place with it were also carried out at the expense of the state (read about the possibility of exchanging municipal housing).
It was during the Soviet Union that the exchange of apartments was widespread, since it was impossible to sell what did not belong to you by right of ownership.
After the Union ceased to exist and a new state called the Russian Federation appeared on the map, the situation changed somewhat.
Now citizens have the opportunity to purchase real estate as their own, and at the same time, own, manage and use it at their own discretion. Apartments can now be alienated by any transaction known to the Civil Code (read about the exchange of a privatized apartment).
Of course, now the costs of conducting a transaction, namely the execution of relevant documents by government agencies and checking the transaction for legality, are carried out for a certain fee .
This is a kind of payment towards the country’s budget for the opportunity to own this or that real estate under the right of ownership.
Equal or unequal?
Goods transferred under a concluded exchange agreement may be either equal or unequal in value. Unless otherwise provided by the agreement, the goods are considered equivalent in accordance with clause 2 of Art. 568 Civil Code of the Russian Federation. However, this does not mean that the total cost of the goods is the same. As the Presidium of the Supreme Arbitration Court of the Russian Federation noted, even if it follows from the terms of the exchange agreement that the value of the goods exchanged differs, this in itself should not be considered as a condition indicating their unequal value. To resolve this issue, it is necessary to clarify the will of the parties who entered into the transaction (clause 8 of Information Letter No. 69).
Goods are recognized as unequal if this directly follows from the terms of the contract or follows from the agreed expression of will of the parties (clause 2 of Article 568 of the Civil Code of the Russian Federation). This is also indicated by clause 7 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 69. In this case, the party transferring the goods at a lower price must compensate for the difference in prices.
In the exchange agreement in accordance with Art. 569 of the Civil Code of the Russian Federation, the parties may stipulate divergent deadlines for the fulfillment of obligations for the transfer of goods.
The concept of property deduction
When exchanging an apartment with an additional payment, do I need to pay tax? What is a tax deduction when exchanging an apartment with an additional payment? When exchanging apartments, if the owner has owned it for no more than three years, he has the right to receive a property deduction . This opportunity is provided for in Article 220 of the Tax Code.
However, the deduction applies to an amount not exceeding one million rubles . If the transaction amount is slightly higher, then only the previously indicated amount is subject to deduction.
Let's calculate the amount of tax deduction.
If the transaction amount is 3 million rubles, then 1 million rubles is the deduction amount. You shouldn't touch him.
But of the remaining 2 million, the parties proportionately pay a tax of 13 percent in half. In this case, the tax deduction can be applied only once .
Learn more about the possibility of obtaining a property deduction in this video:
Income and expense
When concluding an exchange agreement, the company acts as both a seller and a buyer. Consequently, there is a need to reflect in accounting transactions related to the sale of goods, as well as the capitalization of received products.
Let's first consider the sale of goods. In accordance with clause 5 of PBU 9/99 “Income of the organization”, revenue from the sale of products and goods is recognized as income. It is accepted for accounting in an amount that is calculated in monetary terms and is equal to the amount of receipts of cash and other property and (or) the amount of accounts receivable.
Clause 6.3 of PBU 9/99 indicates how the amount of receipts and (or) receivables under agreements providing for payment in kind is determined. It is accepted for accounting at the cost of goods received or to be received by the organization. In turn, the cost of these goods is established based on the price at which, in comparable circumstances, the company usually determines the cost of similar goods. Don't lose sight of an important point. According to clause 12 of PBU 9/99, in accounting, revenue is recognized subject to the conditions specified in this clause being met.
Now let's move on to looking at expenses. They are reflected in the period of income recognition in accordance with clause 19 of PBU 10/99 “Expenses of the organization”. However, the following must be taken into account here. At the moment the goods are transferred to the buyer, their disposal must be recorded, since at this moment no expenses have yet arisen. To record this in accounting, you can use account 45 “Goods shipped”, which is intended to summarize information about the availability and movement of shipped products, the proceeds from the sale of which cannot be recognized for a certain time (Instructions for using the Chart of Accounts).
A question of cost
Let us also clarify the procedure for accounting for goods received in exchange for our own products. First you need to decide at what cost they are reflected in accounting. To do this, let's turn to PBU 5/01. According to clause 10 of this document, the actual cost of inventories received under contracts providing for payment in kind is the cost of assets transferred or to be transferred by the organization. In turn, the value of the latter is established based on the price at which, in comparable circumstances, the company usually determines the value of similar assets.
If the MPZ are received before the transfer of ownership, then, in accordance with clause 2 of Art. 8 of the Federal Law of November 21, 1996 No. 129-FZ, they must be reflected separately. Since the inventories received by the organization do not belong to it, they are considered accepted for safekeeping and are recorded in off-balance sheet account 002 “Inventory assets accepted for safekeeping” (clause 155 of the Guidelines for accounting of inventories). The latter were approved by Order of the Ministry of Finance of Russia dated December 28, 2001 No. 119n.
Exchange and VAT
The main tax problems of barter agreements lie in the peculiarities of taxation of value added tax.
So, according to paragraph 2 of Art. 154 of the Tax Code of the Russian Federation, when selling goods through goods exchange (barter) transactions, the VAT base is determined based on prices determined in a manner similar to that provided for in Art. 40 Tax Code of the Russian Federation. Thus, despite the presumption of equivalence of exchange established by paragraph 1 of Art. 568 of the Civil Code of the Russian Federation, the tax base for VAT in relation to the goods sold should be determined based on the market value of similar products.
Here there is a problem of the relationship between civil and tax law. A similar situation arises when public law (the Tax Code of the Russian Federation) prescribes to the parties to a transaction what they should do in their private civil relations. It turns out that if the parties initially plan non-monetary forms of payment, they are obliged to provide in the agreement that the corresponding amount of VAT must be paid in cash by wire transfer.
Difficulties also arise when, when concluding an exchange agreement, the obligations under the agreement are fulfilled in different quarters. The party that first received the goods, according to tax authorities, has an obligation to calculate VAT on the cost of the goods received as an advance payment (clause 1 of Article 167 of the Tax Code of the Russian Federation; clause 2 of the Letter of the Federal Tax Service of Russia dated February 28, 2006 No. MM-6-03 / [email protected] ). Although, of course, the question of the need to pay VAT on non-cash advances is controversial.
If the exchange agreement does not establish the procedure for paying the difference in the prices of goods recognized as unequal, it is necessary to be guided by Art. 568 Civil Code of the Russian Federation.
How to pay?
So, first you draw up an agreement with a notary . You can do without this, but such a measure will protect your rights.
Next, you transfer the surcharge or your side does this, if this is established by the contract (read about drawing up an exchange agreement with a surcharge). The notary registers your transaction. After that, it helps you calculate your tax.
You go to Rosreestr and declare your desire to submit documents for registration. They calculate the tax amount again and give you You pay the money, after which you stand in line to have your documents reviewed.
You can find out whether maternity capital can be used as an additional payment when exchanging an apartment in our article.
Relief for the money changers
Quite recently, the legislator finally eliminated one tax problem. For a long time in the domestic Tax Code there was a norm established by paragraph 2 of Art. 172, according to which, when using one’s own property in payments for purchased goods, the amount of VAT to be deducted is determined in the cases and in the manner provided for in paragraph 4 of Art. 168 Tax Code of the Russian Federation. This article, in turn, contained a requirement for a separate transfer of VAT amounts for any non-monetary forms of payment. Consequently, during commodity exchange transactions, the tax was claimed by the parties for deduction only after transferring VAT to each other in separate payment orders (clause 4 of Article 168, clause 2 of Article 172 of the Tax Code of the Russian Federation). But from January 1, 2009, the above paragraphs of Articles 168 and 172 of the Tax Code of the Russian Federation lost force (Federal Law of November 26, 2008 No. 224-FZ).
“Finally, legislators have eliminated an unnecessary provision of tax legislation, when during offsets it was necessary to transfer VAT to the accounts of counterparties,” says Irina Shestakova, chief accountant of Sidan-Kontrakt LLC. — This operation complicated the work of the accounting specialist. It was especially difficult to wait for money from the counterparty by sending a payment to his account, since he was in no hurry to fulfill his duties after receiving working money from our company. Thus, with non-monetary forms of payment, this problem acquired a much greater scope, and even in a crisis, when enterprises of different levels experience difficulties with urgent liquidity, their activities can simply be paralyzed.
In any case, the tax issue in relation to barter agreements is not simple. Therefore, before resorting to such an agreement, you need to weigh the pros and cons.
Andrey Mezentsev
