Corporate property tax. Optimization with the help of a simple partnership agreement and return leasing.
Let's start by considering a simple contractpartnership. Article 337 of the Tax Code defines that the tax on the property of enterprises on assets that act as deposits under simple partnership agreements, as well as acquired or created in the process of joint work, is charged and paid by each of the comrades in accordance with the amount of their contribution. Accordingly, in this case it is a matter of reducing the payments, and not about the total withdrawal from their transfer.
The essence of the scheme is as follows:two enterprises, one of which applies the general tax regime, and the other - simplified or UTII, organize a simple partnership, which is accompanied by the pooling of deposits for the purpose of carrying out an activity. Thus, the agreement may provide for the transfer of funds to a companion who conducts general business and is on the USN to purchase the necessary assets in his name with subsequent payment of compensation to the enterprise that provided the money, the amount of which is calculated in a certain proportion of the value of the acquired property. For example, 2/3 of the price of the purchased building. This compensation will be the contribution of the comrade - "simplified". Acquisition of the asset should be accompanied by the formation of an agreement on the distribution of shares. In the case of the purchase of real estate, this document is subject to registration with the Federal Reserve. In addition, it is advisable to conclude a pledge agreement on the share of the firm applying the simplified tax system, until the fulfillment of the obligation to pay compensation (the mortgage of real estate is also registered with the Federal Reserve System). During the existence of the partnership, an enterprise that is on a general regime pays a tax on the property of enterprises in proportion to the share of its contribution (in accordance with the example of 1/3 of the amount accrued on the building), and the company - "simplified" by the payer of this tax is not.
Risks of implementation of the scheme.
The application of this scheme has some risks.In the absence of a real joint activity, the tax authorities may try to recognize the contract as invalid through the court and additional tax on the property of the enterprises. But it is difficult to prove the pretense of a deal, because the work could not develop due to objective economic reasons. In addition, enterprises should not be interconnected.
A friend evades payment of compensation.In this case, the enterprise can defend its rights through the court and collect the debt from the contribution of the second firm. In order to guarantee the return of property, it is necessary to conclude a pledge agreement when creating a partnership.
Leasing is widely used tooptimize almost all types of enterprise taxes and property tax is no exception. Traditional leasing contracts connect the supplier of the goods, the lessor and the lessee. There are also transactions concluded only between the two parties, with the seller and the lessee being one person.
The implementation of the scheme is as follows:a company that is on a general regime concludes a leasing agreement with a company that applies USN or UTII. In accordance with its terms, the "simplifier" acquires assets from the organization that pays a property tax on enterprises with a deferred payment, and then leases them to it for rent, with the subsequent transfer of ownership. In this case, before the expiration of the contract, the objects are recorded on the balance sheet of the lessor.
In order for this transaction not to cause any claimscontrolling bodies, it is necessary to argue the economic feasibility for both sides. Otherwise the contract of returnable leasing can be recognized as invalid in a judicial order, and the taxes paid by the enterprise, are additional. The lessee can justify concluding the transaction by the need to attract investments and the need for further use of the assets. In addition, the lessor and the lessee should not be legally interconnected: to have common founders, directors, etc.