When leasing non-residential premises without registering as an individual entrepreneur can be recognized as a business activity. Individual tax reporting General system: what taxes to pay and when application is justified

Today, rent is one of the most profitable areas of business. There is no need to recruit a huge staff of qualified employees, there is no need to deal with production and procurement, and there are minimal risks when excellent level income.

Individual entrepreneur rents out non-residential premises what taxes does he have to pay? Despite the fact that not only individual entrepreneurs, but also legal entities and individuals can engage in this type of activity, the tax rate varies quite significantly. Which taxation option is more profitable for a “rental” business, and what troubles may lie in wait for individual entrepreneurs?

Lease contract

A lease agreement for non-residential premises is an agreement concluded between the parties (tenant and lessor) planning to conduct business (trade, storage, etc.)

Real estate is used to receive revenue from a second party for the temporary use of a residential or non-residential property.

If the premises are planned to be rented to an individual, in order to carry out such an operation it is necessary to register as an individual entrepreneur.

In addition, at the initial stage of registration, a businessman must indicate rent in the types of activities.

Under the general taxation system, when renting out real estate, an individual entrepreneur is required to pay a tax of 13%, maintain a KUDiR (book of income and expenses), and also provide reporting in Form 3 of personal income tax within the established time frame.

Regarding entrepreneurs working on the simplified tax system, then:

Individual entrepreneur on the “income” object with a rate of 6%.
Entrepreneurs on “income reduced by expenses” apply their standard rate of 15%.

Businessmen on a patent take into account a flat tax of 6%.

It is worth paying attention to the fact that the landlord pays for utilities for his premises himself; accordingly, using the simplified tax system “income minus expenses” he can include them in his expenses when calculating the tax. The simplified “income” system does not allow this to be done.

The patent system operates on estimated income; accordingly, an individual entrepreneur using PSN also cannot reduce the tax base for utility costs for non-residential property that he rents out. Moreover, the tax is paid automatically at the stage of purchasing a patent for a year.

If an entrepreneur rents out an apartment using the simplified tax system “income minus expenses”, in addition to utilities, he can include repair costs as an expense item, thereby reducing the tax base.

Let's consider an example of calculating tax when renting out residential premises owned by an individual entrepreneur working on the simplified tax system “income”.

The lease agreement specifies the monthly payment amount in the amount of 20,000 rubles. per month. The annual income from the apartment will be 240,000 rubles.

The entrepreneur undertakes to pay 6% on “income” for the reporting year, that is, 240,000 x 6% = 14,400 rubles.

Moreover, it is worth noting that in addition to this tax, the individual entrepreneur is obliged to make payments to the Pension Fund and the social insurance fund. Therefore, the question of whether it is more profitable to rent out an apartment to an individual (13%) or to an individual entrepreneur is very controversial.

An entrepreneur who rents non-residential premises for his business can reduce the tax base using the simplified tax system “income minus expenses.”

Rights and obligations of the parties

The parties to a transaction for leasing non-residential premises can be an individual entrepreneur or a legal entity. The agreement is recognized as valid only when executed in writing.

The main nuances when concluding a transaction between an individual entrepreneur and an LLC:

If from the outside legal entity the contract is endorsed CEO, he must confirm his authority to take such an action in a documentary manner.
An individual entrepreneur, whose actions are based on a certificate of state registration, can confirm his authority with his passport and a certificate of registration represented by an individual entrepreneur (USRIP).
Without a trust document, the manager authorized to act on behalf of the LLC has the right to sign a lease agreement (extract from the Unified State Register of Legal Entities).

A businessman can endorse the agreement with a personal signature, since the legislation of the Russian Federation allows entrepreneurs to conduct business without a seal.

An entrepreneur can rent out premises to individuals. face. The legislation does not regulate the rules regarding rental restrictions. Consequently, any legally capable person can participate in a transaction for the lease of non-residential premises.

Rental personal car on the part of the individual entrepreneur is not prohibited by law. The transaction is formalized by signing an agreement between the entrepreneur and an individual or LLC. The clauses of the contract clearly state all the nuances that may arise during the operation of the car. A party is appointed to bear the costs associated with the purchase of fuels and lubricants, spare parts and monetary compensation for wear and tear.

Individual entrepreneur who has the right of ownership to vehicle provided for the provision of motor transport services may apply the UTII taxation system. This rule is regulated by Tax Code Article 346.26.

Differences in taxation of rental income

Some believe that it is more profitable to rent out real estate through an entrepreneur who works at a tax rate of 6%, as opposed to an individual who will have to pay 13% of the income from the transaction. In fact, the entrepreneur pays additional contributions to the budget.

An individual entrepreneur is required to pay taxes on rental activities:

6% from rental income;
contributions for oneself to the pension fund;
deductions for wages hired employees (income, Pension Fund and social insurance fund).

In addition, the entrepreneur has a lot of paperwork related to accounting. If an individual entrepreneur rents premises, this directly affects his profit. Costs are non-operating and have an indirect impact on operating results.

Renting out an apartment and non-residential premises involves receiving money for the use of the property. But, non-residential premises are most often subject to VAT, unlike residential premises. This is due to the fact that non-residential premises are often rented out for commercial activities. And mainly such areas are of interest to large organizations registered as a legal entity and interested in receiving VAT. Entrepreneurs working for OSNO can provide a tax deduction, who as a result of such a transaction receive not only a profit, but also a tax liability in the amount of 18% of the amount specified in the lease agreement.

Of course, there are cases when LLCs agree to rent without value added tax, but only for small areas.

The advantage of renting out residential real estate to friends or relatives by an individual is that there is no obligation to pay money to the budget. But, in this case, non-residential premises must be rented out without payment, otherwise the transaction will be equated to a commercial transaction subject to calculation and payment of tax.

Both an entrepreneur and an individual have both pros and cons from rental services.

Responsibility for non-payment of tax

The absence of a lease agreement for an individual entrepreneur is not a direct violation, but the absence of an agreement to transfer non-residential premises for temporary use (lease) may attract the attention of a Federal Tax Service inspector.

The Tax Service regards such an action as a deliberate reduction in the tax base, which is a valid reason for imposing a fine on a businessman.

Failure to register an agreement with Rosreestr poses serious tax risks.

Let us remind you that if an agreement on the temporary transfer of property for use is drawn up between an individual entrepreneur and an LLC, it is subject to mandatory registration. In all other cases, including rental of residential premises, an agreement whose term exceeds 11 months is also subject to mandatory completion of the appropriate procedure.

An individual entrepreneur is an individual, so simultaneous tax and criminal liability is impossible.

According to the Tax Code (Article 76), due to late submission of reports and late payment of taxes, Federal Tax Service employees have the right to block current accounts in an individual entrepreneur’s bank.

Restrictions on non-cash transactions can be removed by submitting reports and paying taxes, respectively, through the bank’s cash desk on behalf of the entrepreneur, while the account is temporarily “frozen.”

If the rules for keeping records of expenses and costs are not followed, a businessman may be fined:

10,000 rubles (the violation was recorded in one reporting period);
30,000 rubles (incorrect calculations were made over more than one tax period);
20% of the unpaid tax amount and at least 40,000 rubles in case of deliberate underestimation of the tax base for calculation.

Criminal liability is applied to individual entrepreneurs if it is discovered that falsification of documents and the provision of false information to the tax authority.

If the debt is very large or the actual revenue is concealed, the entrepreneur will have to pay a fine of up to 500,000 rubles or may be imprisoned for up to 3 years.

For individual entrepreneurs, the simplified taxation system is the most profitable for leasing residential and non-residential premises.

As an individual entrepreneur, in addition to insurance premiums, it is enough to pay only 6% per year of the amount of revenue without worrying. Also, entrepreneurs using the simplified tax system are exempt from paying property tax.

But even here there are some peculiarities. If a businessman’s income exceeds 1.5 million, registration as a legal entity will be required. Violation is prosecuted according to the criminal code.

In case of non-payment of tax, at the level of revenue allowed by law for individual entrepreneurs, the administrative penalty will range from 500 to 2000 rubles.

Moscow, October 23, 2018. - One of the legal ways to rent out an apartment is to purchase a patent after an individual receives the status of an individual entrepreneur (IP): the tax rate in this case is 6% versus 13% when paying personal income tax. However patent system taxation (PSN) has not received wide recognition: according to the Apartment Rental Department INCOM-Real Estate, it is currently used by only 10% of metropolitan landlords who pay taxes as part of rental housing, the rest file tax returns. Among the reasons for the low popularity of the patent, experts highlight, in particular, several circumstances: firstly, the lack of connection between the cost of this permit and the actual rental yield; secondly, the final expenses of PSN participants (including mandatory payments to individual entrepreneurs) are higher than the income tax for individuals; In addition, the status of an individual entrepreneur significantly limits the rights of the landlord in the event of the sale of a rented apartment. Leading legal consultant of the INCOM-Real Estate Legal Service Kirill Kokorin comments on the characteristics of a patent as a type of tax regime and presents his opinion on the profitability of this system for the landlord.
Purchasing a patent: limitation and price

Kirill Kokorin, leading legal consultant of the INCOM-Real Estate Legal Service: “The acquisition of a patent is only legal for individual entrepreneurs, that is, individuals without individual entrepreneur status cannot use this taxation system. The cost of a patent in the Moscow region is based on the amount of potential annual income from renting out an apartment, which is determined by the Moscow government. As of 2018, the tax rate is 6% of such income. The price of a rental activity permit depends on the location (county and district) where the rental apartment is located and its size.

I will give examples. Patent for an apartment up to 50 square meters. m, located in the South-Western Administrative District, costs 18,000 rubles (the potential annual income from leasing such an object, established by the Moscow government, is 300,000 rubles per year; calculation: 300,000 X 6% = 18,000 rubles). The cost of a patent for an apartment of 75 square meters. m, located in the Central Administrative District - 54,000 rubles (potentially possible annual income from leasing such an object, established by the Moscow government, is 900,000 rubles per year; calculation: 900,000 X 6% = 54,000 rubles). The amount of actual income, which may be much lower, is not taken into account when calculating the cost of a patent.

The patent system is unpopular - according to INCOM-Real Estate statistics, no more than 10% of those who rent out an apartment in Moscow and pay taxes on this income adhere to this tax regime.”

Reasons for the unpopularity of PSN

Kirill Kokorin: “The presence of a patent is not related to the size and regularity of income from renting out an apartment: the landlord buys this permit for a certain period (from 1 to 12 months within a calendar year), and even if the object has been idle all this time - for example , it was not possible to pass it, the patent is not renewed and its cost is not refunded.

In addition, regardless of whether income is received from renting out an apartment or not, the individual entrepreneur makes annual mandatory payments to the Pension Fund - in 2018 this is 5,840 rubles, as well as to the Federal Medical Insurance Fund - in 2018 this is 26,545 rubles . The total amount of mandatory payments is 32,385 rubles. For an individual entrepreneur who has purchased a patent, the possibility of reducing the amount of tax on the amount of insurance premiums is not provided.

The expenses of landlords who are individual entrepreneurs include the cost of a patent and mandatory payments. Individuals pay only personal income tax. Let's look at an example. Apartment in the South-Western Administrative District with an area of 45 sq. m is rented for 30,000 rubles per month, the annual rental income is 360,000 rubles. The cost of renting out this apartment for an individual (personal income tax) with such income will be 46,800 rubles per year (360,000 X 13%); for individual entrepreneurs – 50,385 rubles (18,000 rubles for a patent + 32,385 rubles as mandatory payments).

To determine the feasibility of purchasing a patent, each landlord should carry out a competent calculation of all possible options.”

Seller of an apartment with individual entrepreneur status: features of the situation

Kirill Kokorin: “The owner of a living space who has used it at least once for business purposes, having the status of an individual entrepreneur, will not be able to sell this apartment as individual, only as an individual entrepreneur. This means that the seller is deprived of all benefits and deductions that are due to an individual. If the owner officially liquidates the individual entrepreneur, the situation during the sale will only become more complicated. The seller of an apartment that was previously used for business purposes who has lost the status of an individual entrepreneur is obliged to pay personal income tax on the entire amount received from the sale. The period of ownership of the apartment does not matter. This is the stable position of the Ministry of Finance.

An individual entrepreneur leases non-residential premises - the taxation of this procedure depends on the status of the tenant and the tax regime of the entrepreneur. Let’s take a closer look at the key nuances of calculating taxes for individual entrepreneurs for themselves (and sometimes not only) as part of real estate rental transactions.

What are the difficulties of taxation when leasing real estate to individual entrepreneurs?

The procedure for leasing non-residential real estate to individual entrepreneurs is characterized by a large number of nuances from a tax point of view. So, in order not to violate tax laws, individual entrepreneurs need to know the answers to the following questions:

In what capacity should he pay taxes on the rental of premises - an individual entrepreneur or an ordinary citizen, taking into account the fact that non-residential real estate is registered in his name as an individual (or, alternatively, purchased by him even before registration as an individual entrepreneur)?

Depending on the status of the taxpayer, the right to apply one or another tax regime is established - general, special, as well as the right to include expenses in the calculation of the tax base.

Does he, as an individual, need to pay tax on property that is rented out (and thus used in business activities)?

In general, property tax is not paid on real estate used in the business of an individual entrepreneur. But there are many exceptions to this rule.

What taxes does an individual entrepreneur need to pay if he rents out real estate to a business entity - another individual entrepreneur or LLC?

Here everything depends mainly on the specifics of the taxation system used - OSN or one of the special regimes.

What taxes does an individual entrepreneur need to pay if he rents out non-residential real estate to an individual (not registered as an individual entrepreneur)?

The main problem here is the following: in relation to individuals, an individual entrepreneur as an economic entity can act as a tax agent and bear the statutory responsibilities for calculating and paying the individual’s personal income tax (as well as for reporting).

Let us now try to consistently give answers to these questions related to the taxation of real estate rental for individual entrepreneurs.

Renting real estate to individual entrepreneurs: what tax regime to work with?

Even if the property was acquired by an individual with the status of an individual entrepreneur (for example, under a commercial sales agreement with another business entity), the certificate of ownership will contain the personal data of the owner without any adjustments for his status as an entrepreneur. Any commercial transactions with real estate (sale or lease), from a tax point of view, will by default be considered as carried out by an individual, not an individual entrepreneur. That is, the landlord will by default have to pay personal income tax on rental proceeds at a rate of 13%.

At the same time, an individual entrepreneur has the right to notify the Federal Tax Service that he is using the property in business, and on this basis pay taxes on transactions with this property in accordance with the applicable taxation system, for example, the simplified tax system or UTII (clause 3 of article 346.11, clause 4 Article 346.26 of the Tax Code of the Russian Federation).

The notification is drawn up in free form. It is advisable to reflect in it the details of the agreement on the lease of the property, acts of acceptance and transfer of premises - this will be evidence of the fact that the real estate is used in business activities (letter of the Ministry of Finance of Russia dated 03/05/2012 No. 03-11-11/67).

If the individual entrepreneur works for the OSN, then it also makes sense to send the specified notification to the Federal Tax Service. An entrepreneur under the general tax regime, like an ordinary individual, pays 13% of revenue, but an individual entrepreneur as an economic entity can include expenses in the calculation of the tax base, while an ordinary individual cannot. Expenses in the case of rent can be very significant (for example, related to the payment of utilities, if they are not included in the contract price).

Moreover, an individual entrepreneur on an OSN will pay VAT on rental income, but an ordinary individual will not.

Real estate in business activity: should I pay property tax?

Individual entrepreneurs on OSN pay property tax on a general basis. At the same time, it may be more profitable for him not to include the object of taxation in the property used in business activities, since tax benefits do not apply to such property (clause 2 of Article 407 of the Tax Code of the Russian Federation).

Individual entrepreneurs using the simplified tax system and UTII have the right not to pay tax on real estate used in business activities, unless it relates to the objects listed in subparagraph. 1 and 2 paragraphs 1 art. 378.2 Tax Code of the Russian Federation. Such objects include:

Don't know your rights?

administrative and business buildings, shopping and entertainment centers and any premises inside these facilities;
objects within which are located (or can be located in accordance with the purpose reflected in the technical accounting documents) enterprise offices, shops, restaurants, cafes, consumer service points.

A specific list of such objects is approved for each region by a separate government decree.

The fact of use or non-use of the objects listed in Art. 378.2 of the Tax Code of the Russian Federation, in entrepreneurial activity it does not matter: the individual entrepreneur pays property tax on them in any case.

One way or another, we will agree that the individual entrepreneur still uses non-residential real estate for commercial purposes, namely for rental purposes. In practice, the tenants of the property can be:

Individual entrepreneur and legal entity;
individuals not registered as individual entrepreneurs.

In each case, individual entrepreneur taxation has its own peculiarities.

Tenant - business entity: tax consequences of individual entrepreneurs in a special regime

When renting out real estate to another business entity, an individual entrepreneur will have to, if he operates under a special regime:

On the simplified tax system:

calculate and account for income from receiving rent (with a simplified tax system of 15% - expenses, if any) in the accounting book;
calculate and pay taxes in a timely manner;
report taxes in your return.

On UTII:

lead in a convenient way(on which the Federal Tax Service has no objections if there has already been an inspection, or by all indications there should not be if there has not been an inspection yet) accounting for physical indicators affecting the tax base (letter of the Ministry of Finance of Russia dated 08.08.2012 No. 03-11-11/ 233);
calculate, pay and declare tax.

In the case of renting real estate under UTII, physical indicators for permitted types of renting non-residential real estate may be different - you need to look at their list under clause 3 of Art. 346.29 Tax Code of the Russian Federation. And if there are several objects, then separate accounting may be required.

As we already know, there is no need to pay property tax under a special regime (unless there are exceptions under Article 378.2 of the Tax Code of the Russian Federation and the Federal Tax Service is notified of the use of real estate in business).

Tenant - business entity: tax consequences of individual entrepreneurs on the special tax base

If an individual entrepreneur operates on an operating system, he will have to:

Keep records using the OSN accounting book (approved by order of the Ministry of Finance of Russia No. 86n dated August 13, 2002, Ministry of Taxes of Russia No. BG-3-04/430), calculate and pay your personal income tax, and declare it within the prescribed period.
Pay VAT on the revenue that is presented rent, issue invoices (prepaid, advance, if necessary - corrective or adjustment), enter information about them in the journal and accounting books.

You can learn more about the specifics of accounting for invoices by a VAT payer in the articles:

“Logbook of received and issued invoices”;
“Reflection of an adjustment invoice in the purchase book.”

If the individual entrepreneur and his counterparty have entered into an agreement on free rental for one purpose or another, VAT must nevertheless be paid, and at the market rental price (information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 22, 2005 No. 98).

In this case, the counterparty accepts the estimated rental cost as part of non-operating income (clause 8 of Article 250 of the Tax Code of the Russian Federation).

The tenant is an individual (not an individual entrepreneur): tax consequences

If the tenant is an individual who is not registered as an individual entrepreneur, then the entrepreneur, when leasing the property, will have to, as a taxpayer, generally carry out the same actions that are typical for legal relations with another business entity. He pays the same taxes on the rental of non-residential premises. However, entrepreneurs should keep in mind that:

When renting real estate free of charge by an individual, an individual entrepreneur is required to calculate (by analogy with the scenario for counterparties-legal entities and individual entrepreneurs described above) the personal income tax base based on the market rental amount.

The fact is that this amount is considered natural income of an individual. The individual entrepreneur must accrue personal income tax on it, pay it in the status of a tax agent (letter of the Ministry of Finance of Russia dated July 5, 2013 No. 03-04-06/25983), and then report to the Federal Tax Service using forms 2-NDFL and 6-NDFL.

The VAT journal and books will obviously only take into account outgoing invoices.

Moreover, if an individual paid the rent in cash, and the lessor issued a strict reporting form confirming payment, then an invoice is not needed. In other cases, the account must be drawn up and registered in the accounting journal and sales book (letter of the Ministry of Finance of Russia dated November 23, 2012 No. 03-07-09/153).

An individual entrepreneur can rent out the real estate he owns as an individual, paying regular personal income tax, or as an economic entity under the special tax regime or special regime, if he informs the Federal Tax Service about the use of the real estate in business. In the second case, it is possible to use more favorable conditions for payment of tax on proceeds.

However, the patent tax system (PTS) has not received wide recognition: according to the Apartment Rental Department INCOM-Real Estate, it is currently used by only 10% of the capital's landlords who pay taxes as part of rental housing, the rest file tax returns. Among the reasons for the low popularity of the patent, experts highlight, in particular, several circumstances: firstly, the lack of connection between the cost of this permit and the actual rental yield; secondly, the final expenses of PSN participants (including mandatory payments to individual entrepreneurs) are higher than the income tax for individuals; In addition, the status of an individual entrepreneur significantly limits the rights of the landlord in the event of the sale of a rented apartment. Leading legal consultant of the INCOM-Real Estate Legal Service Kirill Kokorin comments on the characteristics of a patent as a type of tax regime and presents his opinion on the profitability of this system for the landlord.

Purchasing a patent: limitation and price

I will give examples. Patent for an apartment up to 50 square meters. m, located in the South-Western Administrative District, costs 18,000 rubles (the potential annual income from leasing such an object, established by the Moscow government, is 300,000 rubles per year; calculation: 300,000 X 6% = 18,000 rubles). The cost of a patent for an apartment of 75 square meters. m, located in the Central Administrative District, - 54,000 rubles (potentially possible annual income from leasing such an object, established by the Moscow government, is 900,000 rubles per year; calculation: 900,000 X 6% = 54,000 rubles). The amount of actual income, which may be much lower, is not taken into account when calculating the cost of a patent.

The patent system is unpopular - according to INCOM-Real Estate statistics, no more than 10% of those who rent out an apartment in Moscow and pay taxes on this income adhere to this tax regime.”

received
fee 46%

1. You can lease it both on behalf of a sole proprietor and on behalf of an individual entrepreneur. But, since we are talking about non-residential premises and it is possible to establish signs of entrepreneurial activity (systematic nature, entrepreneurial risk) + the property is rented to a legal entity, I think it would be better if it is rented from an individual entrepreneur. In addition, under the simplified tax system, rental income will be taxed at 6%, and not 13%, as for individuals. But when renting from an individual entrepreneur, it will be necessary to make changes to the list of activities carried out (for example, OKVED code 70.20.2 “Renting out your own non-residential real estate”).

2. In order to bring to criminal liability under Art. 171 of the Criminal Code, the prosecution will have to prove the very fact of carrying out business activities without registration and causing major damage to the state - 1,500,000 rubles. It is also theoretically possible to be held accountable under Part 1 of Art. 14.1 of the Code of Administrative Offenses ((entails the imposition of an administrative fine in the amount of five hundred to two thousand rubles).

Therefore, if you are an individual entrepreneur using the simplified tax system, make changes to the register in terms of OKVED and pay a tax of 6% on income.

received
fee 27%

Hello!
In accordance with Article 18 of the Civil Code of the Russian Federation, citizens may own property; inherit and bequeath property; engage in business and any other activity not prohibited by law; create legal entities independently or jointly with other citizens and legal entities; make any transactions that do not contradict the law and participate in obligations; choose a place of residence; have the rights of authors of works of science, literature and art, inventions and other results of intellectual activity protected by law; have other property and personal non-property rights.

According to paragraph 4 of Art. 208 of the Tax Code of the Russian Federation to the income of individuals from sources in Russian Federation includes income received from leasing or other use of property located in the Russian Federation.

According to paragraph 3 of Article 210 of the Tax Code of the Russian Federation, for income for which the tax rate established by paragraph 1 of Article 224 of the Tax Code is provided, the tax base is determined as the monetary expression of such income subject to taxation, reduced by the amount of tax deductions provided for in Articles 218-221 of this Code , taking into account the features established by this chapter. The tax rate is set at 13 percent.

That is, you have the right to rent out property as an individual and you will need to pay 13% tax on the amount of income. One-time (non-systematic) leasing of property cannot be regarded as a business activity, and therefore cannot be qualified as an administrative offense (Article 14.1 of the Code of Administrative Offenses of the Russian Federation) or illegal business activity (Article 171 of the Criminal Code of the Russian Federation),

By virtue of Art. 2 of the Civil Code of the Russian Federation entrepreneurial activity is recognized as independent activity carried out at one’s own risk, aimed at systematically obtaining profit from the use of property, sale of goods, performance of work or provision of services by persons registered in this capacity in the manner prescribed by law.

If you rent out property to carry out business activities, that is, as an individual entrepreneur, then you should consider the following.

Entrepreneurial activity includes not only leasing property, but also preparatory actions, for example, carrying out repair and construction work, searching for potential tenants, which is confirmed by established judicial practice (Resolutions of the Federal Arbitration Courts of the West Siberian District dated December 16, 2009 N A70- 4191/2009, Central District dated 08/31/2009 N A64-6950/08, East Siberian District dated 09/09/2009 N A33-6383/09, Central District dated 08/15/2007 N A36-2300/2006).
Thus, temporary non-use of property in business activities during the tax period, in particular, the absence of lease agreements, repairs of premises, etc., as well as the use of property (part of it) for the management needs of an individual entrepreneur, cannot in itself be considered as use of this property for purposes other than business activities.
Since Law N 2003-1 does not define the deadlines for submitting documents confirming the right of an individual entrepreneur to be exempt from the obligation to pay property tax for individuals, such documents must be submitted within a time frame that allows the tax authority to calculate the amount of property tax for individuals and send the taxpayer a tax return. notification of tax payment by August 1.
P verification of the actual use of property by individual entrepreneurs in business activities should be carried out by tax authorities as part of tax control.

at the rate of 6 percent.

In accordance with paragraph 3 of Art. 346.11 of the Tax Code of the Russian Federation, the use of a simplified taxation system by individual entrepreneurs provides for their exemption from the obligation to pay property tax for individuals in relation to property, used for business activities .

Thus, in the case of registration as an individual entrepreneur and payment of a single tax associated with the use of the simplified tax system, from income received from the provision of the premises in question for rent, You will not be a payer of personal property tax in relation to the specified premises.

At the same time, according to the regulatory authorities, in order to apply the right to exemption from property tax, an individual entrepreneur using the simplified tax system must submit to the tax authority:
- application for exemption from property tax in any form;
- documents confirming the use of real estate for business activities (in your case, such a document will be a lease agreement).
Such clarifications, in particular, are contained in the Letter of the Ministry of Finance of Russia dated 02/01/2010 No. 03-05-04-01/06.

According to Art. 346.31 of the Tax Code of the Russian Federation, the single tax rate is set at 15 percent of the amount of imputed income. HOWEVER, the tax system in the form of a single tax on imputed incomeis installed for certain types of activities that are specified in Article 346.26 of the Tax Code of the Russian Federation.

Thus, since an individual entrepreneur can be exempt from paying property tax for an individual, it will be most profitable to rent out property as an individual entrepreneur using the simplified tax system.

Sincerely, F. Tamara

United Ngaol

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fee 27%

In cases where a person not registered as an individual entrepreneur acquired residential premises or other real estate for personal needs or received it by inheritance or under a gift agreement, but due to the lack of need to use this property, temporarily leased it or rented it out and as a result of such a civil transaction received income (including in a large or especially large amount), what he did does not entail criminal liability for illegal business o (Position of the Plenum of the Supreme Court of the Russian Federation dated November 18, 2004 N 23 “On judicial practice in cases of illegal entrepreneurship...”). In other words, if an individual rents out excess property, then it is not necessary to register as an individual entrepreneur.

Citizen not registered as an individual entrepreneur, pays only personal income tax on rent at a rate of 13% (if the rent payer has not withheld personal income tax from the income paid, as a tax agent, then the citizen will pay himself). He remains obligated to pay property tax for individuals (it is local and is paid once a year, no later than November 1 of the year following the year for which the tax was calculated; established by Law N2003-1-FZ "On taxes on property of individuals" and Moscow Law No. 47 “On rates of property tax for individuals”).

Citizen, registered individual entrepreneur by type of activity "renting out your own residential real estate" OKVED code 70.20.1., subject to the general taxation system, pays personal income tax on rent at a rate of 13%. The entrepreneur will need to submit a declaration to the tax authority in Form 4-NDFL within five days after the expiration of a month from the date of receipt of rental income (clause 7 of Article 227 of the Tax Code of the Russian Federation), and then make advance payments based on tax notices (clause 9, Article 227 of the Tax Code of the Russian Federation). Based on the results of the year - submit a declaration in form 3-NDFL no later than April 30 of the year following the previous year (Article 216, paragraph 1 of Article 229 of the Tax Code of the Russian Federation).

Under the general system, when renting out non-residential premises, an entrepreneur is required to pay VAT. An individual entrepreneur has the right to be exempt from fulfilling taxpayer obligations related to the calculation and payment of tax if, over the previous 3 consecutive calendar months, the amount of revenue from the provision of non-residential premises for temporary use, excluding VAT, did not exceed a total of 2 million rubles. (Clause 1 of Article 145 of the Tax Code of the Russian Federation). Operations involving the provision of residential premises for use are exempt from VAT (clause 10, clause 2, article 149 of the Tax Code of the Russian Federation).

The obligation to pay property tax for individuals remains.

All entrepreneurs are required to pay insurance contributions to state extra-budgetary funds “for themselves”: Pension Fund (for compulsory pension insurance), Compulsory Medical Insurance Fund (for compulsory health insurance); for hired workers (if any): Pension Fund + Social Insurance Fund + Compulsory Medical Insurance Fund (in accordance with Law No. 212-FZ “On Insurance Contributions...” .

In 2012, individual entrepreneurs are required to pay “for themselves” contributions of 17,208.25 rubles. (if the payer was born in 1966 and older: contribution to the Pension Fund - 14386.32 rubles, the entire amount is paid for the insurance part; if the payer was born in 1967 and younger, then contributions to the Pension Fund for the insurance part are 11066.40 rubles, for the funded part - 3319.92 rubles .; to the Federal Compulsory Medical Insurance Fund (FFOMS) - 2821.93 rubles; contributions to the Territorial Compulsory Medical Insurance Fund are not paid in 2012).

Citizen, registered individual entrepreneur by type of activity"renting out your own residential real estate" OKVED code 70.20.1., transferable on the simplified tax system, should imagine that the simplified tax system is used in 3 variants:

With the object of taxation “income”, the tax rate is 6% (clause 1 of article 346.20 of the Tax Code of the Russian Federation);

The simplified tax system with the object of taxation is “income minus expenses”. The laws of the constituent entities of the Russian Federation may establish rates from 5 to 15% depending on the categories of taxpayers; the amounts of paid insurance premiums (for example, contributions for “yourself” to the Pension Fund of the Russian Federation, the Compulsory Medical Insurance Fund) can be included in expenses (clause 7, clause 1, article 346.16 of the Tax Code of the Russian Federation);

Simplified tax system based on a patent - when transferring for temporary possession and (or) use of garages, own residential premises, as well as residential premises built on country houses land plots(Clause 56, Clause 2, Article 346.25.1 of the Tax Code of the Russian Federation). The amount of the patent is fixed, calculated from the potential annual income established by the subject of the Russian Federation. Part of the patent can be reduced by the amount of insurance contributions to extra-budgetary funds paid by the entrepreneur both for himself and for his employees, taking into account the features set out in clause 10 of Article 346.25 .1 Tax Code of the Russian Federation.

The use of the simplified tax system exempts individual entrepreneurs from paying property tax for individuals on property used for rental (clause 3 of article 346.11 of the Tax Code of the Russian Federation). The deadline for submitting an application and documents confirming the actual use of property for exemption is not specified, so it turns out that tax authorities send a notice of payment faster than the individual entrepreneur submits the application and documents for exemption. Based on the application and documents submitted by the entrepreneur, the tax authorities issue a refund (offset) of the overpaid tax.

Restriction on the use of the simplified tax system - annual income from the rental of property should not exceed 60 million rubles per year.

The obligation to pay insurance contributions to state extra-budgetary funds for individual entrepreneurs on the simplified tax system for “himself” and for employees (if any) exists and does not depend on the applied taxation regime.

Good evening!

on question 1 and on part 2 of question 2 - in accordance with the letter of the Ministry of Finance of the Russian Federation dated November 17, 2009 N 03-04-05-01/808

In accordance with Article 2 of the Civil Code of the Russian Federation, activities must be carried out independently, at your own risk, and be aimed at systematically generating profit.

In the absence of the above signs, an individual has the right to enter into an agreement to lease property without registering as an individual entrepreneur.

on the second question - the previous lawyer answered in great detail. You need to consider all payments and the rental amount.

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Druzhkin Maxim

Lawyer, Moscow

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Hello! In the 2 lease cases under consideration, depending on the status of the lessor, it is necessary to take into account a number of factors affecting the obligations for calculating taxes. This is the percentage of tax itself, the obligation to pay it directly by the lessor or the tax agent of an individual - the lessor, and the opportunity to also use a reduction in the tax base for expenses when purchasing property. Also in this matter, you should pay attention to the payment of taxes upon the subsequent sale of rental property.

I would like to immediately point out that the previous answers contained the erroneous opinion that in this case there is no need to pay tax when renting out real estate; in this position, this tax on income from renting out property was mistakenly confused with property tax.

In accordance with paragraph 1 of Art. 209 of the Civil Code of the Russian Federation, the owner has the right to own, use and dispose of his property.

According to Art. 608 of the Civil Code of the Russian Federation, the owner of the property has the right to lease it.

Based on paragraph 1 of Art. 23 of the Civil Code of the Russian Federation, a citizen has the right to engage in entrepreneurial activity without forming a legal entity from the moment of state registration as an individual entrepreneur.

The Federal Tax Service of Russia for Moscow in Letter dated March 30, 2007 N 28-10/28916 indicates that the following facts may indicate the presence of signs of entrepreneurial activity in a citizen’s actions:

Manufacture or acquisition of property for the purpose of subsequent profit from its use or sale;

Accounting for business transactions related to transactions;

The interconnectedness of all transactions made by a citizen in a certain period of time;

Stable connections with sellers, buyers, and other counterparties.

In addition, in accordance with the All-Russian Classifier of Types of Economic Activities OK 029-2001 (NACE Rev. 1), approved by Decree of the State Standard of Russia dated November 6, 2001 N 454-st, economic activity takes place when resources, equipment, work force, technologies, raw materials, materials, energy (information resources) are combined into a production process aimed at producing products (providing services). Economic activity is characterized by production costs, the production process and the output of products (provision of services).

If these signs are present, an individual is required to register as an entrepreneur without forming a legal entity.

This position is confirmed by Letters of the Ministry of Finance of Russia dated January 14, 2005 N 03-05-01-05/3 and dated September 22, 2006 N 03-05-01-03/125, as well as the Letter of the Federal Tax Service of Russia for Moscow dated January 25, 2008 N 18-12/3/005988.

Thus, according to the regulatory authorities, if operations for leasing (renting) property or operations for buying and selling property are carried out in the presence of signs of economic and entrepreneurial activity, an individual is obliged to register with the tax authorities as an entrepreneur without forming a legal entity.

The Plenum of the Supreme Court of the Russian Federation in paragraph 2 of Resolution No. 23 dated November 18, 2004 indicated that in cases where a person not registered as an individual entrepreneur acquired residential premises or other real estate for personal needs or received it by inheritance or under a gift agreement, but due to the lack of need to use this property, he temporarily leased it or rented it out and as a result of such a civil transaction received income (including in a large or especially large amount), what he did does not entail liability for illegal entrepreneurship.

Thus, if an individual temporarily rents out non-residential premises, but his activities do not contain signs of entrepreneurial activity, the person is not required to register as an individual entrepreneur.

According to paragraph 2 of Art. 209 of the Civil Code of the Russian Federation, the owner has the right, at his own discretion, to take any actions in relation to his property that do not contradict the law and other legal acts and do not violate the rights and interests protected by law of other persons, including alienating his property into the ownership of other persons, transferring to them, while remaining the owner, the right to own, use and dispose of property, pledge the property and encumber it in other ways, dispose of it in another way.

Taxation of income received by individuals is carried out in the manner prescribed by Chapter. 23 of the Tax Code of the Russian Federation.

In paragraph 1 of Art. 207 of the Tax Code of the Russian Federation states that personal income tax payers are individuals who are tax residents of the Russian Federation, as well as individuals receiving income from sources in Russia who are not tax residents of the Russian Federation.

According to paragraphs. 4 and 10 p. 1 art. 208 of the Tax Code of the Russian Federation, income from sources in the Russian Federation includes income received from leasing or other use of property located in Russia.

In accordance with paragraph 1 of Art. 226 of the Tax Code of the Russian Federation, Russian organizations, individual entrepreneurs, notaries engaged in private practice, lawyers who have established law offices, as well as separate divisions of foreign organizations in the Russian Federation, from which or as a result of relations with which the taxpayer received income, are required to calculate, withhold from the taxpayer and pay personal income tax amount.

The exception is income for which the calculation and payment of tax are carried out in accordance with Art. Art. 214.1, 214.3, 214.4, 227, 227.1 and 228 of the Tax Code of the Russian Federation.

Thus, an organization - a tenant of non-residential premises, making payments under a lease agreement to an individual - the lessor, who is not an individual entrepreneur, is obliged to calculate, withhold from the taxpayer and pay to the budget the amount of personal income tax on the rent amounts.

Based on the above, an individual entrepreneur paying rent to an individual for premises rented from him, is recognized as a tax agent in relation to such income of an individual and, accordingly, must fulfill the duties of calculating, withholding and transferring to the budget personal income tax in the manner prescribed by Art. 226 of the Tax Code of the Russian Federation, as well as upon submission to the tax authority at the place of registration in accordance with clause 2 of Art. 230 of the Tax Code of the Russian Federation information on the income of an individual and the amounts of taxes accrued, withheld and transferred to the budget system of the Russian Federation. This position is confirmed by the letter of the Ministry of Finance of Russia dated July 20, 2012 N 03-04-05/3-889).

entrepreneurial activity of leasing apartments and non-residential premises for offices and shops to an individual entrepreneur applying a simplified taxation system, the type of economic activity of which is specified in the Unified state register individual entrepreneurs, is the rental of their own real estate, is not subject to single tax on imputed income. At the same time, income from activities related to the lease of apartments and non-residential premises for offices and shops is also not subject to taxation on personal income tax (clause 24 of Article 217 of the Code). (Letter of the Ministry of Finance of the Russian Federation dated December 5, 2011 N 03-11-11/310))

In accordance with Art. 346.20 of the Tax Code of the Russian Federation, in the case of a simplified taxation system (STS), if the object of taxation is income, the tax rate is established at the rate of 6 percent.

Taxpayers who apply the simplified taxation system and who have chosen income reduced by the amount of expenses as an object of taxation, when determining the tax base, take into account the expenses provided for in paragraph 1 of Art. 346.16 of the Tax Code of the Russian Federation, subject to their compliance with the criteria specified in paragraph 1 of Art. 252 of the Code.

Based on paragraphs. 1 clause 1 art. 346.16 of the Code, when determining the object of taxation, taxpayers have the right to take into account expenses for the acquisition, construction and production of fixed assets, as well as for the completion, additional equipment, reconstruction, modernization and technical re-equipment of fixed assets (taking into account the provisions of paragraphs 3 and 4 of Article 346.16 of the Tax Code) .

If an individual acquired ownership of a fixed asset (non-residential premises) before state registration as an individual entrepreneur, then he was not a taxpayer engaged in entrepreneurial activity, therefore, the costs of acquiring a fixed asset when an individual entrepreneur applies the simplified taxation system should not be taken into account.

At the same time, the costs of repairing the specified premises, carried out during the period of application of the simplified taxation system, can be taken into account when determining the tax base on the basis of paragraphs. 3 p. 1 art. 346.16 of the Code, and the costs of its maintenance in the form of utility bills - on the basis of paragraphs. 5 clause 1 of the said article and art. 254 Code.

At the same time, according to paragraph. 2 clause 17.1 art. 217 of the Tax Code of the Russian Federation, the provisions of this paragraph do not apply to income received by individuals from the sale of property directly used by individual entrepreneurs in business activities.

Thus, income received from the sale of non-residential premises, which were directly used in business activities, are subject to inclusion in the tax base for personal income tax. (Letter of the Ministry of Finance of Russia dated 06/09/2012 N 03-04-05/3-716)) .

Therefore, during the subsequent sale of property leased, it is necessary to take into account that if you do not register an individual entrepreneur and simply rent out non-residential premises, then when selling this property, which has been owned for more than 3 years, you do not need to pay personal income tax. If you register an individual entrepreneur, then when selling such property, its value should be included in the tax base.

At the same time, in accordance with Art. 41 of the Code, income is recognized as an economic benefit in monetary or in-kind form, taken into account if it is possible to assess it and to the extent that such benefit can be assessed, and determined in accordance with the chapters “Individual Income Tax” and “Organizational Income Tax” Code.

According to paragraph 1 of Art. 572 of the Civil Code of the Russian Federation, under a gift agreement, one party (the donor) gratuitously transfers or undertakes to transfer to the other party (the donee) an item of ownership or a property right (claim) to himself or to a third party, or releases or undertakes to release it from a property obligation to himself or to a third party.

Based on the above and taking into account the principle of determining income established in Art. 41 of the Code, when donating real estate, the donor does not have income (economic benefit) subject to personal income tax. (Letter of the Ministry of Finance of the Russian Federation dated November 2, 2011 N 03-04-05/3-837))

Taking into account the above, if you do not register an individual entrepreneur, then the lessor (individual entrepreneur or legal entity), being a tax agent, will calculate your personal income tax - 13% of the income received from the transaction and pay it. Also, after 3 years from the date of acquisition of ownership, it will be possible to sell the property without paying personal income tax on the sale amount.

If you register an individual entrepreneur, then according to the type of activity “renting out your own residential real estate”, OKVED code 70.20.1., an individual entrepreneur according to the simplified tax system will have the object of taxation “income”, at a tax rate of 6% (clause 1 of article 346.20 of the Tax Code of the Russian Federation); with the object of taxation “income minus expenses” - 15%, while the tax base can be reduced by the cost of fixed assets - acquired property.

I also want to offer another option, which may be less tax-intensive.

In accordance with paragraph 1 of Art. 1005 of the Civil Code of the Russian Federation, under an agency agreement, one party (agent) undertakes, for a fee, to perform legal and other actions on behalf of the other party (principal) on its own behalf, but at the expense of the principal or on behalf and at the expense of the principal.

Under a transaction made by an agent with a third party on his own behalf and at the expense of the principal, the agent acquires rights and becomes obligated, even if the principal was named in the transaction or entered into direct relations with the third party for the execution of the transaction.

Article 1011 of the Civil Code of the Russian Federation establishes that if an agent acts on his own behalf, but at the expense of the principal, then the rules provided for in Ch. 51 “Commission” of the Civil Code of the Russian Federation, if these rules do not contradict the provisions of this chapter of the Civil Code of the Russian Federation or the essence of the agency agreement.

Thus, the subject of the agency agreement is any relationship between the agent and third parties in the interests of the principal.

According to paragraphs. 9 clause 1 art. 251 of the Code, when determining the tax base, income in the form of property (including cash) received by a commission agent, agent and (or) other attorney in connection with the fulfillment of obligations under a commission agreement, agency agreement or other similar agreement, as well as for reimbursement of expenses, is not taken into account made by the commission agent, agent and (or) other attorney for the principal, principal and (or) other principal, if such costs are not subject to inclusion in the expenses of the commission agent, agent and (or) other attorney in accordance with the terms of the concluded agreements. The indicated income does not include commission, agency or other similar remuneration.

Taking into account the above, subject to the above conditions for a transaction with third parties for an individual entrepreneur - agent applying the simplified taxation system, only agency fees are taken into account as part of income when determining the object of taxation.

The only thing that needs to be taken into account in this case is that, according to paragraph 5 of Art. 346.11 of the Tax Code, individual entrepreneurs using the simplified taxation system are not exempt from performing the duties of tax agents provided for by the Tax Code.

In accordance with paragraphs 1 and 2 of Art. 226 of the Code, individual entrepreneurs who are the source of payment of income to taxpayers are recognized as tax agents in relation to taxpayers and are obliged to calculate, withhold and transfer to the budget the amount of personal income tax on such income of taxpayers.

So, look at what pros and cons to take. When registering an individual entrepreneur, do not forget about the obligation to independently pay social taxes, to the Social Insurance Fund, pension fund, and the Compulsory Medical Insurance Fund.

Have a nice day!

1. In what cases is it permissible to do this on behalf of an Individual, and in what cases only on behalf of an individual entrepreneur? What are the tax risks under these two options? Can the option of surrendering on behalf of an individual be considered illegal business under the Criminal Code of the Russian Federation?

The presence of signs of entrepreneurial activity in a citizen’s actions may be evidenced, in particular, by the following facts:
- production or acquisition of property for the purpose of subsequent profit from its use or sale;
- economic accounting of operations related to transactions;
- the interconnectedness of all transactions made by a citizen in a certain period of time;
- stable relationships with sellers, buyers, and other counterparties (see letters of the Ministry of Finance of the Russian Federation dated November 17, 2009 N 03-04-05-01/808, dated 09.22.2006 N 03-05-01-03/125, dated January 14, 2005 N 03-05-01-05/3, Federal Tax Service of the Russian Federation for Moscow dated 01/25/2008 N 18-12/3/005988, dated 03/30/2007 N 28-10/28916).

Since the above-mentioned signs will be present in the actions of a citizen, an individual in this case is obliged to register as an entrepreneur without forming a legal entity.

Otherwise, the citizen will be held administratively liable for carrying out business activities without state registration under Part 1 of Art. 14.1 Code of Administrative Offenses of the Russian Federation and criminal under Art. 198 of the Criminal Code of the Russian Federation in case of tax evasion (if the amount of taxes and (or) fees has not been paid, amounting to more than six hundred thousand rubles for a period within three financial years in a row, provided that the share of unpaid taxes and (or) fees exceeds 10 percent of the due payment of taxes and (or) fees, or exceeding one million eight hundred thousand rubles). If, in the situation under consideration, the property was initially acquired to generate income from renting it out, the citizen may be prosecuted under Art. 171 of the Criminal Code of the Russian Federation (when receiving income in an amount exceeding one million five hundred thousand rubles).
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2. Which option for extracting income from real estate is more profitable in a financial sense: compare the option of an individual entrepreneur under different tax regimes and an individual (if permissible), under alternative assumptions that the initial investment (purchase/reconstruction) was made from an individual entrepreneur or from an individual?

I am considering the option only for individual entrepreneurs.

An individual entrepreneur can apply OSN, simplified tax system: “income”, “income minus expenses”, patent, UTII

UTII: there is none in Moscow

the most unprofitable, since you will need to pay property tax, income tax, VAT, etc.

Simplified tax system: “income”, “income minus expenses”, patent:

The use of a simplified tax system by organizations provides for their exemption from the obligation to pay income tax, property tax of organizations, value added tax (except in some cases) (clause 2 of Article 346.11 of the Tax Code of the Russian Federation).

I’ll start with a patent: it can only be used when transferring for temporary possession and (or) use of garages, one’s own residential premises, as well as residential premises built on dacha land plots. Accordingly, when renting commercial real estate does not apply.

“income” or “income reduced by the amount of expenses”: it is more expedient to use them. Which tax object to choose depends on the percentage of income and expenses.

If the expected expenses are less than 66.66% of the total expected income, then it is better to simply select “income” and pay a single tax of 6% on the amount of income.

Otherwise, it is better to choose “income reduced by expenses” and pay 15% of the difference.

In some cases, it is more advisable to choose the second, since it is often possible to “cover” income with expenses; the list of them is limited in Art. 346.16 of the Tax Code of the Russian Federation, and losses of previous years (clause 7 of Article 346.18 of the Tax Code of the Russian Federation), such expenses can include, for example, expenses for the acquisition of fixed assets, interest on credits/loans.

In this regard, it is better to register as an individual entrepreneur and then purchase real estate, then the costs of its acquisition will immediately appear in accounting.

In reality, if you are not going to register the agreement with the Registration Chamber, you can submit it as an individual.

In this case, it will be possible to identify the fact of non-payment of tax only through a complaint from a well-wisher.

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