To update equipment, purchase new vehicles, expand production or office space, large financial investments are required. What to do if it is not possible to collect the required amount at a time or take out a loan? There is a very effective alternative - leasing. Let's talk about what this term means, what types of leasing there are, what property can be leased, how to correctly complete such a transaction, and what pitfalls this procedure has.

Despite the fact that “lease” is translated from English as “rent,” leasing is a kind of “hybrid” of rent and credit with the involvement of a third party – a leasing company. The latter buys the property from the seller and transfers it to the lessee. He pays a certain amount monthly, which is both a rental payment and a loan payment (depending on the user’s further intentions). At the end of the period specified in the contract, the property can be purchased at its residual value or returned to the leasing company.

Simple example:

The auto company plans to renew its bus fleet. It enters into an agreement with a leasing company (let it be VTB Leasing, YarKamp Leasing or any other). A leasing company buys 10 buses from a manufacturing plant (for example, MAZ) for a total amount of 60 million rubles. The buses are transferred to the auto company, which pays an initial payment of 10 million rubles, and then deposits 1.6 million rubles monthly into the leasing company’s account for three years.

In the 19th century, leasing began to actively develop in the USA and Great Britain. The concept of “lend-lease” during the Great Patriotic War became significant for our country: the provision of military equipment was also a leasing option. Leasing began to significantly influence economic development in the 50s of the last century. The founder of the modern leasing industry is called American entrepreneur Henry Schofeld, who opened the first specialized leasing company in San Francisco.

In the USSR, leasing was used for enterprises to purchase expensive imported equipment back in the 70s and 80s, but its scale was limited. In the domestic market, the first leasing operations began in 1989. Until the mid-90s, leasing did not have a serious impact on the Russian economy. After the modernization of tax legislation and the adoption of the federal law “On Financial Lease (Leasing)” in 1998, business interest in this instrument increased significantly. At the end of 2017, the volume of the leasing market in the Russian Federation was estimated by specialists of the rating agency RAEX (Expert RA) at a trillion rubles.

Parties to the leasing transaction

Typically there are three parties involved in the leasing process:

1 Seller– a legal entity or individual entrepreneur (necessarily a VAT payer) that owns or sells the necessary equipment. The property is transferred to the lessor on the basis of a purchase and sale agreement.

2 Lessor– its role is played by a leasing company, which can be registered both as a legal entity and as an individual entrepreneur. Most often, banks or structures with them that have sufficient capital to purchase expensive property (vehicles, real estate, equipment) act as a lessor.

3 Lessee- this is a buyer, also either a legal entity in any organizational and legal form, or an individual entrepreneur who needs equipment, transport or real estate of the seller for use in commercial activities and obtaining.

Sometimes the seller is also the lessor, then there are two parties involved in the transaction, not three.

What is the economic meaning of leasing?

Each party to a leasing transaction has its own reasons for participating in it.

• The seller sells his goods and receives the full value of the property and no risks;
• The lessor benefits from an increase in the value of the property included in the lease payment.;
• The lessee purchases the property on more favorable (interest rate/down payment) or more favorable (solvency requirements) conditions compared to a bank loan. He has the right to refuse the purchase if the circumstances of his business have changed. In addition, the buyer saves on tax payments (VAT, income tax, property and transport taxes, if vehicles are purchased).

A feature of a leasing transaction is a reduction in the redemption price of the property by the end of the contract. This happens due to depreciation– annual write-off of part of the value of an asset as it wears out. Depreciation is taken into account using special formulas and does not depend on the actual wear and tear of the product. In leasing transactions for certain types of property, accelerated depreciation is applied, due to which, by the end of the contract, transport or equipment have zero value and become the property of the lessee without additional payment.

According to the Federal Law “On Financial Lease (Leasing)” (No. 164-FZ dated October 29, 1998 with subsequent amendments), movable and immovable property can be leased: vehicles, equipment, real estate, enterprises as economic complexes.

The subject of leasing cannot be natural objects, land plots and property with limited circulation. An exception in this sense is weapons - the Russian Federation has the right to sell them to other countries on lease under the conditions established in international treaties and the law on military-technical cooperation.

There are other leasing restrictions set by the lessors themselves. In particular, buyers who wish to lease the following are refused:

Labor leasing relations in Russia are regulated by federal law dated May 5, 2014 No. 116-FZ. It outlines the following rules:

• Personnel leasing can only be carried out by private recruitment agencies operating on the basic tax system and accredited by the state employment service.
• Contracts for the employment of an employee with a lessee cannot be concluded for longer than 9 months.
• All employee transfers can only be carried out with his written consent.
• The salary of a “leasing” employee for the same work cannot be lower than that of the lessee’s full-time employees.
• The leasing company is obliged to pay all necessary compensation for occupational hazards - the same ones that are paid to the main employees of the lessee.

The law establishes certain restrictions for “rental” labor. You cannot engage leasing personnel:

• To perform work of I and II hazard classes or 3 and 4 degrees of harm;
• To perform the work of a freight forwarder or other employees on shipping transport;
• To perform work at enterprises that are in bankruptcy;
• To replace striking workers
• To work in conditions of threat of dismissal of key employees

What types of leasing are there?

In a leasing transaction, a lot depends on the terms of the contract. Depending on them, three types of leasing can be distinguished:

1 Financial

With this option, the lessor is, in fact, only a financial intermediary, formally participating in the transaction. The property is delivered directly from the seller to the lessee; the latter makes claims regarding the quality of this property to the seller. By the end of the lease agreement, the property, as a rule, has a minimum residual value.

In such a scheme, the leasing agreement often stipulates the seller’s obligation to accept the property if the buyer returns it to the lessor. The bank does not need old cars or machines, to put it simply. VTB24, Avangard Bank, Promsvyazkapital group and others have their own leasing subsidiaries.

2 Operating

With this leasing option, the contract term is significantly shorter than the service life of the acquired property (real estate, industrial complex, etc.). In this regard, the role of the leasing company in the transaction is key. The lessor assumes full responsibility for the safety of the leased property, organizing repairs, insurance and maintenance.

The role of the lessee in this scheme is close to the role of the tenant. When the contract ends, the buyer has the right:

• Buy the property at its residual value (in this case, this value is quite high due to the long depreciation period);
• Return the property to the leasing company;
• leasing agreement, if the lessor does not object to this;
• Exchange property for another (for example, production equipment for more modern or different characteristics).

The operational type of leasing is often used by dealers of large automakers: the buyer uses a car of a certain brand for 2-3 years, and then rents out and leases again a more modern model.

3 Returnable

The most specific type of leasing. Here the seller and the lessee are one person. In fact, the transaction is a form of secured lending, when the property is transferred to the lessor only formally, while actually remaining in its place. An enterprise can sell the equipment it owns and then lease it, receiving a large sum of money for development and maintaining production capacity.

However, these types of transactions are also the most corruption-intensive.

A fresh example from the Vologda region

A leasing transaction for the sale of a large cinema center took place here. The seller was an LLC, let's call it Alpha. This company owned the cinema center for over 10 years. but the business did not take off, the debts grew, and the founders of Alpha turned to the regional business support center with a request for state support - the object is socially significant, the building has historical value. Support in the amount of 10 million rubles was provided with the condition that it would be used to develop the film business in the region.

Immediately, Alpha LLC entered into a leasing deal, selling to the lessor (let it be Beta LLC, one of the founders of which was the same regional business support center that provided support to Alpha) property for film exhibition in the amount of 24 million rubles. The lessor transferred this property to the buyer - Gamma LLC, having concluded an agreement for 34 million rubles with the payment of 10 million as a down payment. Nothing unusual, if you do not pay attention to the fact that the founders of Gamma were the same people as Alpha, and the difference between the sale and purchase price exactly repeated the amount of state support provided to film entrepreneurs in the region.

The regional government eventually came to its senses and demanded the money paid as state support back. This led to the bankruptcy of Gamma LLC (the debt written off due to the impossibility of collection amounted to 10.07 million rubles), the cessation of the activities of Beta LLC, internal proceedings in the regional government and heated discussions about whether government agencies should even participate in repayments. leasing transactions.

Leasebacks constantly attract the attention of tax authorities: a transaction in which there is no clear economic feasibility can be recognized as a form of tax evasion.

Signs of a fictitious leaseback transaction:

• The seller and the buyer are related to each other (for example, one is a legal entity dependent on the second). In this case, the Federal Tax Service may refuse to pay a VAT refund.
• Payment for the leaseback transaction in one of its parts was carried out by checks, bills and other non-cash methods. This may indicate an attempt to withdraw funds by the seller or buyer.
• At least one of the participants has already been caught in unscrupulous leasing schemes.

Leasing transactions by risk level

Like any other transaction for the transfer of property, leasing has its risks - some of them have already been described above. Based on the degree of risk, there are three types of leasing transactions:

1 Guaranteed

The process of transfer of property is insured by specialized insurance companies or several other companies act as guarantors of the lessee, capable of fully compensating the lessor for the cost of the property in case of violation of the contract.

2 Partially secured

The security deposit, paid by the lessee to the leasing company's account, covers part of the cost of the property. If nothing not specified in the contract happens during the entire leasing period, the funds will be returned to the buyer.

3 Unsecured

Transactions in which the parties do not guarantee each other the fulfillment of their obligations. Nowadays, such relationships between leasing entities are becoming less and less common; the lack of insurance usually “hints” at a dubious or fictitious transaction.

All stages of the leasing transaction

There are usually five stages of selling property on lease. Let's look at each of them.

Stage 1. Analysis of the leasing market, selection of a leasing company.

The leasing market in the Russian Federation is almost identical to the size of the first hundred of the banking sector. You can choose a leasing company based on the conditions offered and the reliability of the parent company. The rating of lessors is maintained, for example, on the portal banki.ru/products/leasing/companies/.

Stage 2. Analysis of the conditions offered by the lessor.

The most important points: initial payment (advance payment), monthly payment, amount of overpayment, term and repayment schedule, conditions for terminating the leasing agreement.

Stage 3. Drawing up a leasing agreement.

To draw up the text of the contract, the lessor usually requires the following documents:

• statement of intention to lease property indicating the parameters;
• financial statements for the last reporting period;
• an account statement of an enterprise or individual entrepreneur (to assess the turnover of a company or entrepreneur);
• copy of the passport of the manager/individual entrepreneur, order of appointment/certificate of registration;
• insurance policy for the leased object.

The leasing company may also require other documents.

Stage 4. Making an advance (down payment).

The down payment amount usually starts from 5% (these are the conditions for most companies involved in operational leasing of vehicles). On average, the advance in the market is 20-30%. After paying the required amount, the buyer receives the property for use.

Stage 5. Use of property during the term of the contract.

The leased property must be used in strict accordance with the terms of the contract. This applies to annual insurance, maintenance (vehicle, equipment) and, of course, timely payment of monthly payments.

Leasing payment options

Regular payments under leasing agreements can have one of three types of schedule:

1 Regressive – the first payments are the largest, then decrease. An analogue of differentiated payments on loans. This scheme allows you to minimize interest payments.

2 Annuity – payments in equal installments. The most “expensive” schedule, because the first payments go almost entirely to repay the lessor’s interest/margin.

3 Seasonal - a schedule adapted to certain types of business (for example, agriculture, where the main profits occur in autumn and winter - during these periods payments increase compared to average, in other seasons they decrease).

Other special payment schedules may also be used, depending on the specifics of the activities of specific companies.

What is more profitable: credit or leasing?

In each specific case, the answer to this question may be different. It depends on both the type of leasing and the property, the conditions of the lessor and the creditor bank and many other aspects. Let’s not forget that leasing is used primarily for business purposes, and lending conditions for legal entities and individual entrepreneurs differ significantly from those for “physicists”.

First, let's look at the comparison based on external features. Let's say we decide to buy a car worth 1 million rubles. Let’s compare the average parameters of the lending and leasing program at the beginning of 2018.

It seems that it is obviously more profitable to take out a loan. However, let's not forget that the interest rate and the amount of overpayment are not always the main factors when choosing a method of acquiring property.

If you put together all the characteristics by which leasing and lending can be correctly compared, you will get something like this table:

Options	Leasing	Lending
Subject	Legal entities and individual entrepreneurs.	Any individual (including individual entrepreneurs) and legal entities
Right to property after the transaction	The object remains the property of the lessor until full payment of its cost by the buyer	The property becomes the property of the client, remaining pledged to the bank
Terms of service	The history of previous leasing transactions and credit history does not matter (except for attempts at fraud)	A positive credit history is required
Payments under the agreement	Advance (down payment) Monthly regular fixed payments Payment of the lessor's interest (margin) It is possible to pay for insurance of the leased item	Monthly payments (loan body + interest) Down payment possible Possible commissions (for account maintenance, etc.) Possible payment of insurance
Depreciation of property	For some types of property, it is possible to use accelerated depreciation For cars over 300,000 rubles and minibuses over 400,000 rubles, a decreasing depreciation coefficient is applied.	The usual procedure for calculating depreciation
Tax payments
VAT	Included in payments under the leasing agreement. The tax can be claimed for refund after the property is redeemed.	Not taxed
Property tax	If the property is on the balance sheet of the lessor, the buyer does not pay tax. If the property is on the buyer's balance sheet, the tax is reduced due to accelerated depreciation.	Property purchased on credit immediately becomes the property of the buyer and is subject to full tax.

There are also differences in the purpose of leasing and credit for business purposes. In general they can be expressed as follows:

• Loan funds can be used by an entrepreneur for any purpose, while leasing funds can be used primarily for business development and renewal of fixed assets.
• In the case of a loan, the bank has to control the intended use of the loan. In leasing, control is not required since the property belongs to the lessor.
• When lending to a business, the bank requires guarantees in the form of collateral of the client’s existing property (which may not exist), as well as insurance. In the case of leasing, the purchased property itself acts as collateral.
• Property purchased with loan funds immediately goes to the balance sheet of the company that took out the loan. After acquiring property under lease, it can either be on the balance sheet of the lessor or transfer to the balance sheet of the lessee, depending on the terms of the agreement.
• Property purchased with borrowed funds is displayed on the borrower’s balance sheet and limits the possibilities for further lending. Leasing property most often passes through the balance sheet of the leasing company, allowing the lessee to easily take out loans.
• Stopping loan payments may lead to the sale of assets to pay off the debt. Termination of leasing payments only leads to the seizure of the leased property.

From a formal point of view, leasing is similar to renting. In both cases, there is an owner of the property and a person who would like to take possession of this property, but does not immediately have the entire amount to purchase. The owner, in turn, is ready to rent out the property for use at a certain markup.

But along with the similarities between renting and leasing, there are also significant differences.

Options	Rent	Leasing
Formal parameters
Legislative basis	Civil Code of the Russian Federation, Art. 34 Federal laws on certain types of rentals.	Federal Law “On Financial Lease (Leasing)”
Deadlines	Most often short terms with the possibility of extension.	In a significant part of leasing transactions, the contract term is equal to or close to the full depreciation period of the transferred property.
Item	Any non-consumable property that is not limited in circulation.	Non-consumable property that is not limited in circulation and is not a natural object (for example, a land plot)..
Possibility of purchasing the property at the end of the contract	No	There is
Right to property	use
Who chooses the property provided?	Landlord	Lessee
Package of documents	Confirmation of solvency is not required	Documents confirming the existence of the business and solvency
Business scheme
Transaction participants	Landlord, tenant	Seller, lessor, lessee. Banks, insurance companies, guarantor firms, etc. may also participate.
Status of seller (manufacturer) of property	Not involved in the deal	The participant in the transaction enters into an agreement with the lessor.
Responsibility for compliance of property with stated requirements	Landlord bears	It is borne by the lessee, with the exception of the situation when the lessor offers the property for leasing, and he is also looking for a seller.
Risk of accidental loss/damage to property	Landlord bears	Bears the lessee
Property insurance subject	Landlord	Most often the lessee

Leasing and taxes

Income tax

For the lessee, leasing payments are considered other expenses (Article 264, clause 1 of the Tax Code of the Russian Federation). Accordingly, the higher the payment, the less income tax you have to pay. This, according to the legislator, stimulates the development of enterprises and the renewal of fixed assets.

When concluding a leasing agreement, there are two options:

1 If the property is left on the balance sheet of the lessor

In this case, the lessee includes the entire amount of the lease payment as expenses.

For example, if a leasing agreement is concluded for 24 months, and the total amount of payments excluding VAT is 300,000 rubles, then the monthly amount included by the buyer in his expenses will be: 300,000 rubles / 24 months = 12,500 rubles.

2 If the property is placed on the balance sheet of the lessee

The property must be included in one or another depreciation group at the cost of the lessor's costs for the purchase of the leased asset and its pre-sale servicing. Depreciation is calculated depending on the group - the multiplying factor for some types of property can reach 3 (depreciation occurs 3 times faster than usual).

The lessee may include the lease payment minus the amount of depreciation of the property as expenses.

Let's take the same example with property leased for 300,000 rubles, and a monthly payment of 12,500 rubles, and the cost of purchasing the leased item (let it be a computer-controlled machine belonging to the 5th depreciation group) was 200,000 rubles. The minimum period of use of property of the 5th group is 85 months. 200,000 rub. / 85 months * coefficient 3 = 7058 RUR.

This amount will be included in expenses to determine the income tax base as the cost of depreciation. Plus, the costs will take into account part of the leasing payment in the amount of 12,500 – 7,058 = 5,442 rubles. As a result, the deduction will still be the same 12,500 rubles, but if it is not completed correctly, income tax will have to be paid without any deductions.

Value added tax

Under leasing agreements, you can receive a VAT refund from the state (Articles 171, 172 of the Tax Code of the Russian Federation). This will happen if you meet the following conditions:

• The leased property is acquired by the lessee for activities subject to VAT.
• The lessor can confirm that he actually provided the lessee with the property (copies of agreements, other documents at the request of the Federal Tax Service).
• The lessee can confirm that he has reflected the leasing transaction in his accounting.
• There is an invoice for the lease payment provided by the lessor to the buyer.

Property tax

If the property remains on the balance sheet of the lessor, the lessee does not pay tax. When registering property on the balance sheet of the lessee, it is possible to reduce property tax due to accelerated depreciation. Tax on movable property is not charged during the period of validity of the leasing agreement, regardless of whose balance sheet it is located on.

Transport tax

Everything is simple here: this tax is paid by the party that registered the leased vehicle with the State Traffic Safety Inspectorate or Gostekhnadzor, regardless of whose balance sheet the property is on during the period of validity of the leasing agreement.

Frequently asked questions about leasing

Is it possible to close a leasing transaction early?

Most companies provide for early repurchase of the leased asset (this clause must be included in the contract). However, for the lessee this is not the most profitable option: with early payment of the residual value, the repurchase amount is higher and the tax preferences are lower. In addition, a quick buyout leads to increased attention to the transaction from the tax authorities: the Federal Tax Service may cancel the leasing agreement and recognize it as a commodity loan agreement. Then there will be no tax deductions at all.

In what cases does property purchased under lease need to be registered with government agencies?

According to the legislation of the Russian Federation, it is necessary to register the following property and the right to it:

• transport (aviation, sea, road)
• high-risk equipment

In each of these cases, the leased asset is registered by agreement between the lessor and the lessee in the name of one of them. If the leasing agreement is terminated due to the lessee's failure to pay regular payments, the registration authorities will cancel the record of the user of the property.

We are a government agency. Can we lease property?

Yes, state and municipal institutions have the right to act as a lessee. However, for them, the leasing law (Article 9.1) establishes a number of features:

• The lessor independently determines the seller and is responsible for the timely delivery of the property.
• Payments are made only in cash, barter is not allowed.
• Only leased property can be used as collateral.

The lessor delays the delivery of equipment, citing problems with the supplier. He refuses to compensate for lost time, citing the fact that we were looking for a supplier ourselves. Is this legal?

The legislation (Article 34 of the Civil Code of the Russian Federation and Article 22 of the Federal Law “On Financial Lease (Leasing)”) directly indicates that the risk of the supplier’s failure to fulfill its obligations under the leasing agreement rests with the party that selected the supplier. Most often, the lessee plays this role. The same applies to the non-compliance of the property with the objectives of the project. If you select equipment and it turns out to be unsuitable, you will be responsible for the costs. If a leasing company was looking for a supplier or equipment, it will pay the costs.

What is subleasing?

This term refers to the transfer of the right to use leased property to third parties. Let's say equipment was leased to implement a project. It was completed ahead of schedule. Closing the contract early means incurring losses in terms of tax compensation. A decision is made to sublease the equipment. The former lessee becomes the lessor. In this case, permission to the transaction is required from the original lessor. The new lessee has the same tax preferences as the main lessee. If the main leasing agreement is violated (regular payments are not made), the subleasing agreement is also invalid.

We often hear about fictitious leasing. What is it?

Most often, fictitious leasing is a cover for an installment purchase and sale transaction. Issued in order to receive tax benefits. Since many regions have programs to stimulate economic development, leasing operations there are subsidized by government funds. This also opens up wide scope for fictitious transactions.

In St. Petersburg and the Tyumen region, at the end of 2017, trials were held in high-profile cases of theft under fictitious leasing agreements: in the first case, 18 million rubles went into the pockets of fraudsters, in the second - over 50 million. The scheme was the same: the authorities received a fake leasing agreement (in fact, no property initially existed or was transferred), according to which the attackers received compensation for the down payment or interest rate provided for by regional programs. In the northern capital, an employee of the business support center participated in the scheme, turning a blind eye to the obvious fictitiousness of the contract.

Conclusion

So, leasing is one of the most convenient financial instruments that allows a company to update fixed assets or purchase equipment for the development of new business areas. Its main advantage is that to implement his plans, the entrepreneur does not need to invest large amounts of his own money and jeopardize the financial stability of the company.

The state provides a number of benefits and tax preferences for companies that use leasing schemes for their development. Some particularly enterprising individuals are trying to benefit from this by using fictitious leasing, but for such things you can get a conviction under the article “Fraud” of the Criminal Code of the Russian Federation.

It must be taken into account that leasing cannot replace a loan in every case: the decision must be preceded by a careful calculation of upcoming expenses and taking into account the accompanying circumstances. However, the prevalence of leasing in the Russian Federation suggests that very often it is the best option for expanding your business.

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Hello! In this article we will talk about what leasing is and how to use it. In a difficult economic situation, when banks demand exorbitant interest rates on loans, and leasing as a type of transaction is not suitable for a number of reasons, enterprises or individual entrepreneurs are increasingly turning to leasing companies. The goal is to purchase equipment, transport, and real estate on favorable terms. What is leasing for individuals and legal entities? What types of leasing are there? What are the advantages of such a deal? You will learn about all this in this article!

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What is leasing in simple words

Leasing - it's the same lease. (Translated from English "lease" - "rent"). But there are a number of significant differences.

Let's look at the diagram as an example:

An enterprise or entrepreneur does not have enough funds to purchase equipment. You can take out a loan with high interest rates, or you can ask a leasing company to buy the necessary equipment. She, in turn, considers the proposal and evaluates the profit for herself. If approved, the lessor leases the acquired property to the enterprise under a special agreement.

Under the terms of this agreement, the lessee pays the company a certain amount every month (leasing payments), as for rent. After a certain period of time, you can buy out equipment, real estate or a car by paying the residual value.

As can be seen from the example, three parties are involved in the leasing process:

• Recipient of property– a person (individual or legal) to whom the leased asset is leased for use for some time, with the possibility of its full redemption;
• Leasing company– the party purchasing the equipment: real estate, transport, equipment or an entire enterprise.
• Salesman– the party who sells the above valuable property.

Sometimes two parties are enough if the owner of the property acts as a lessor. In many cases, you will need another party - the insurance company.

Purpose of leasing for an enterprise– expand production, modernize technologies, which will lead to increased profits.

The lessor benefits from the difference between the market price of the property and its value after the leasing transaction. A seller of equipment, real estate, vehicles gets the opportunity to quickly sell expensive equipment, real estate, vehicles, etc.

According to the law of the Russian Federation, the following property can be leased (transferred):

• Road transport;
• Real estate;
• Equipment;
• Enterprises.

Some objects are prohibited, to which special conditions of use apply by law, for example, military items. Such property cannot be leased:

• Without an individual or serial number (for example, when a vehicle does not have a VIN);
• Withdrawn from circulation;
• Natural resources and land.

Leasing companies also set their own restrictions. They depend on the lessor's policy and on the items themselves. There are also common parameters for all objects that are not offered for leasing:

• Having low liquidity;
• Unreliable manufacturer;
• Used item more than 5-7 years old.

The basic rule is that all leased items are purchased in order to use them in the process of any commercial business.

Types of leasing

In accordance with the terms and economic essence of the contracts, there are three main types of leasing:

• Returnable;
• Operating;
• Financial.

There are also leasing of real estate, equipment, vehicles and others.

According to the degree of risk, leasing transactions are divided into three types:

1. Guaranteed– risks are distributed between several parties – guarantors of the transaction;
2. Unsecured– the lessee does not provide any guarantees for the fulfillment of its obligations;
3. Partially secured– having an insurance contract.

Description of the main types of leasing

Leaseback

This is a special type of transaction. In this case, the lessee and the seller of the property are one person. The company enters into an agreement with a leasing company to transfer ownership of its property for a certain amount and immediately acts as a lessee. In this case, the production process does not stop - the equipment is not removed. The company received a large sum, which it can immediately use to increase profits or for other needs. At the same time, it pays small payments every month. This transaction looks like a loan secured by property, but there is no interest to the bank.

Leaseback is beneficial for enterprises that need additional funds for development. After all, it is possible to receive money from the leasing company and the equipment will not be lost, and the production process will continue.

But there is a significant drawback. Leaseback transactions attract special attention from tax authorities. They may consider such agreements one of the ways to evade taxes. But if the transaction is carried out in accordance with all financial and legal rules, and the agreement is justified by economic feasibility, then the fiscal authorities will not have grounds for a fine.

The tax service compares leasing conditions and possible loans. If it turns out that a loan is more profitable for the entrepreneur, then the Federal Tax Service suspects tax evasion.

Here are the terms of transactions that attract the attention of fiscal authorities:

• The leaseback agreement was signed by two parties dependent on each other. According to the law, this is possible, but in practice the Federal Tax Service does not pay VAT refunds precisely for this reason;
• The parties to the transaction used bills, checks and other non-cash methods when making payments;
• One of the parties to the agreement has previously been found to have paid taxes in bad faith.

Operational leasing

This is a transaction in which the period of use of the property is much longer than the term of the contract. The rate is higher than in the case of financial leasing. In fact, a parallel can be drawn with ordinary rent.

The leasing company bears full responsibility for the subject of the contract. In other words, repairs, maintenance and insurance. The recipient of the leased item does not bear any responsibility. All risks associated with the destruction or loss of the leased asset fall on the shoulders of the company.

The recipient of the leased item may terminate the contract with the company if the item is not suitable for use.

Upon expiration of the operational leasing agreement, the lessee can:

• Change an object to another;
• Leave the property to the lessor;
• Conclude another agreement;
• Buy property and become its owner.

Operational leasing has a positive effect on the dynamics of the production process. After all, the equipment is being updated.

The concept of financial leasing

Financial leasing – a way to raise funds for specific purposes. The terms of use of the leased asset are equal to the terms of the contract. By the end date of the agreement, the value of the property is close to zero. More often than not, the lessee wants to take ownership of such property, especially since by the end of the lease it is worth practically nothing.

Main features and conditions of financial leasing:

• The lessor purchases property specifically for leasing, and not for its own use;
• The buyer selects the property and the seller;
• The seller is aware of the existence of a leasing agreement, but the subject of the agreement is delivered to the buyer, and he accepts it for operation;
• The lessee forwards all claims regarding the quality of equipment, machinery, and vehicles to the seller, bypassing the lessor;
• In case of damage to the leased item, it is transferred to the buyer after signing the acceptance certificate for commissioning.

Stages of concluding a leasing transaction

Despite the fact that the process of obtaining an object for leasing is considered a simple transaction, you need to carefully consider all stages of its implementation.
Key steps towards a successful leasing transaction:

1. Choosing a leasing company . It is better to give preference to large organizations that are subsidiaries of well-known financial institutions. We recommend using Europlan on favorable leasing terms.

2. Study of all proposed terms of the contract . Before signing the contract, it is necessary to find out: the initial and monthly payment amount, the payment schedule, the conditions under which the transaction is terminated, as well as the characteristics of the transferred property.

3. Drawing up a contract . Before this, the leasing company may require the following documents from the client:

• statement of intention to lease a certain object;
• bank statement about the company's recent turnover;
• financial statements for the last 4 months;
• copies of documents of the business manager;
• agreement with the supplier;
• documents confirming insurance of the leased object.

The lessor may require other documents and papers - this depends on the type of transaction and the company itself.

4. Then comes the down payment . After this operation, the enterprise receives the object of the contract for use.

- one of the profitable ways that allows an enterprise to increase production without high costs, build new workshops, and update technology through the purchase of technical innovations.

You can purchase everything necessary for the operational operation of the office, computer equipment. In agriculture, buy new equipment for processing crops, collecting milk, cutting meat. In the restaurant business, purchase the necessary equipment for trading. Such leasing is also beneficial for the woodworking, gas, and oil refining industries.

The main advantages of using equipment leasing :

• Allows an enterprise or individual entrepreneur to develop, even if they have part of the money to purchase new equipment;
• Payments are evenly distributed over months according to a personal schedule, there is no need to pay the entire cost at once;
• Leased items are immediately available for use, and they can participate in the production process after signing the contract;
• Monthly payments are covered by the profit that will come from the use of new equipment and workshops;
• Payments are classified as cost, which leads to a decrease in the income tax base;
• Savings by reducing property tax payments. This is due to accelerated depreciation. After the contract term, it turns out that the leased item is worth almost nothing.

Car leasing

Both legal entities and individuals can buy a car on lease. This is a relatively new type of transaction for the Russian population, but in recent years it has been rapidly progressing in its distribution.

Let’s take a closer look at the question of what leasing is for individuals. In fact, any citizen of the Russian Federation can purchase a car, as if renting it. One difference is that you can become the owner of the vehicle at the end of the contract.

The motorist gets the opportunity to use vehicles after completing the transaction and making the down payment. Such procedures can be executed not only by special leasing companies, but also by banks and car dealerships.

What is the procedure for leasing a car?

1. The client provides identification and driver documents, fills out the necessary documents;
2. An agreement is concluded between the parties: the future car owner and the lessor. The document gives the right to use transport with its subsequent purchase. A purchase and sale agreement is also concluded between the seller (transport supplier) and the company (bank) that has assumed the responsibilities of the lessor;
3. The recipient of the rental car pays the first 20-30% contribution of the total cost of the contract;
4. It is mandatory to take out insurance for the leased item (car) in two packages: OSAGO and CASCO;
5. The leasing company takes care of the costs and hassle of registering the car with the traffic police and carrying out maintenance;
6. After all the above points, the transport passes into the use of the lessee, but not into ownership. The owner is a leasing company, which can be a car dealer, bank or other financial institution;
7. The user of the car pays monthly amounts, and upon expiration of the contract, the vehicle can be taken over. You can also exchange it for a new car.

Pros of car leasing

1. You can purchase not only a passenger car, but also trucks and special equipment;
2. It doesn’t matter whether the car was used or whether the new car was leased from a dealership or from a private person;
3. Minimum package of documents for completing a leasing transaction;
4. The level of requirements for the client is lower than when applying for a loan;
5. The lease term is up to 5 years, after this period the client can become the owner, for this the remaining amount must be paid;
6. You can return the leased item – a car – ahead of schedule;
7. You can use the car immediately after the transaction.

Cons of car leasing

1. Interest rates for car leasing agreements are higher than for loans, especially for mid-price vehicles;
2. If the leasing payment schedule is violated, the car is confiscated;
3. The car is not property and cannot be rented out or used as collateral without the consent of the official owner - the leasing company;
4. For periodic inspection, you must provide the car to the leasing company.

Before deciding on how to purchase a car, you need to carefully study all the factors, weigh all the pros and cons, and find out all the lucrative offers from banks.

Real estate leasing is something between rent and mortgage. The essence of the process is the same as with other types of leasing. The company buys the property that the client has chosen. Then, the leasing organization rents out this living space to him. The client is obliged to pay monthly amounts for using the lease.

Real estate leasing for individuals

Apartment leasing for the ordinary population has not yet become widespread. Maybe the fact is that people want to see real estate in their possession immediately, and not in 15-20 years. Psychologically, it is much calmer when the apartment becomes property immediately, as, for example, with a mortgage.

When registering real estate on credit, the buyer gets the opportunity to use and own square meters; the right to dispose of it will come after the last payment. When leasing, a person has only one right - to use the living space. All other rights will come into force after the end of the contract period and payment of the residual value.

Purchasing a house or apartment on lease has a number of other disadvantages V:

• Most often, a mortgage agreement is cheaper than a leasing agreement;
• Two transactions are drawn up: one of them is for the purchase and sale between the leasing company and the seller, the second is between the citizen and the leasing company. As a result, more funds are spent on registration. These costs most often fall on the person wishing to purchase an apartment.

What are the benefits of leasing real estate to individuals?

It's all about the reliability of the deal for the parties to the contract. With a mortgage, there is a risk for the bank that the client will not fulfill all obligations. Then you will have to take additional measures, which entail costs for the financial institution. Whereas the leasing company is already the owner of the living space and does not lose anything in the event of the client’s insolvency. Therefore, she is more tolerant of late payments and considers all options for payments that an individual offers her.

Leasing companies do not care about the credit history of their client. Therefore, this type of apartment purchase is suitable for citizens who have been denied a bank loan.

Purchasing housing on lease is also attractive for those people who do not want to own their property and pay taxes on it. For example, this option can be considered if a married couple is in an unstable relationship and one of the parties is afraid of losing part of the property during division.

There are many scammers among real estate leasing companies, so the average citizen should carefully choose an organization. It is best to pay attention to leasing companies that are subsidiaries of a large bank.

Real estate leasing for legal entities

The situation is different with the leasing of commercial real estate for persons engaged in entrepreneurial and financial activities. This type of deal has been around for a long time and is in demand. This is primarily due to favorable taxation schemes.

Not putting real estate on the balance sheet is always beneficial for any enterprise, in particular for the following reasons:

• You can count on a refund of value added tax;
• Accounting records leasing payments as expenses, thereby not underestimating profits and reducing the corresponding tax;
• There is no need to pay property tax at all - the real estate is not listed on the balance sheet of the enterprise and does not belong to it.

That is why purchasing square meters through leasing is much more attractive for an enterprise than a commercial mortgage agreement.

Leasing or credit – which is more profitable?

For clarity, we present a comparative table with the same comparative characteristics for loans and leasing.

Comparison of loans and leasing

Features for comparison	Leasing	Credit
Who can use	legal entity, individual engaged in commercial activities (IP)	any natural or legal person
Who is the owner	During the term of the contract, the owner is the lessor; at any time he can withdraw the property	after the transaction, the owner of the acquired property is immediately the enterprise or individual entrepreneur
Payments	- monthly payments: — payment of the leasing company’s margin; — insurance premiums; — tax on leased property; — advance payment is 20-30% of the cost	— loan payments (interest for using the loan, insurance); — possible fees for maintaining a loan account and assessing property; — there may be no down payment
Past history of property acquisitions	it is not necessary to have any (positive, negative) history of leasing property	having a positive credit history
Depreciation	the possibility of using accelerated depreciation (except for cars costing more than 300 thousand rubles and minibuses costing more than 400 thousand rubles - a coefficient that reduces depreciation is applied to them)	normal depreciation scheme
Taxes
VAT	VAT is included in lease payments	money received as credit is not subject to VAT. The tax presented by the supplier can be deducted by the lessee after purchasing the property.
Property tax	the property is on the balance sheet of the leasing company and therefore cannot be subject to property tax. if the property is on the balance sheet of the enterprise, then property tax is reduced due to rapid depreciation provided for leasing	the property is immediately the property of the enterprise, which means it is taxed

The advantage of leasing over a loan is not always obvious. Each specific case must be considered separately from all sides. You cannot do without legal and financial assistance.

Using a specific example, let’s look at leasing a car of a well-known brand. The conditions offer payments 30% less than for a loan. But there is one more point - in order to receive such a favorable offer after the contract period, the car must be returned to the seller. If you buy it out in full, the overpayment will be higher than for the intended loan.

Taxes and depreciation

When determining the income tax base, the enterprise (lessee) classifies leasing payments as expenses. This is described in detail in Article 264 of the Tax Code in paragraph 1 of subparagraph 10.

Under the terms of the agreement, it is possible to include the property on the balance sheet of the enterprise, then the amount of depreciation is deducted from the amount for expenses of leasing payments.

When the property is not on the balance sheet of the enterprise, then it is taken into account by the lessor. In this case, the cost of the subject of the contract is deducted from the amount of all expenses for leasing payments. By law, the income tax base does not take into account expenses for the acquisition of property subject to depreciation. This is the redemption value of the leased asset, and it is written off gradually using depreciation.

There are cases when the contract does not clearly state the amount of the redemption price. In this case, specialists from the Ministry of Finance propose to include all amounts of leasing payments in the initial cost. After ownership rights are transferred to the enterprise, accrue payments as expenses through depreciation.

An enterprise or individual entrepreneur can challenge this position, because there is no mention of the redemption price in the law and the Tax Code. Article 264 of the Tax Code states that all leasing payments are classified as other expenses. The exception is depreciation accrued by the enterprise.

There is also a special procedure for calculating the cost of depreciable property during leasing operations. This is specified in Article NK 257. The initial cost of property includes the costs of delivery, construction, acquisition, and bringing it to a state suitable for use. This means that for the parties to the leasing agreement the initial cost of the leased asset will not differ.

It turns out that if the lessor fully pays off the cost of the property through depreciation, then by the end of the contract he transfers the subject of the contract to the enterprise with zero residual value.

If the property is not fully depreciated, then it is transferred to the other party to the contract at the value that remains after depreciation has been calculated. This part will be written off as expenses of the enterprise through depreciation. Therefore, if the lessee accumulates the redemption value, he will not be able to write it off, since depreciation is not charged on it.

It turns out that it is more profitable not to divide the lease payment, but to include it in full as other expenses.

Depreciation

Accelerated depreciation rates apply to property purchased under lease. In this case, the tax accounting policy of the enterprise must indicate the method of calculating depreciation.

Leasing payments contain VAT, so in the future the enterprise can offset it from the budget in accordance with Articles 171-172 of the Tax Code.

When purchasing on credit, the cost of VAT will be less than in a leasing transaction. This happens because when leasing, the base for calculating VAT includes not only the cost of the property, but also the price for the services of the lessor.

Renting and leasing - similarities and differences

Leasing is similar to renting only from the outside. Leasing is often called financial lease. Essentially, in both cases, the main parties to the transaction are two clients. One person needs a certain expensive item, but does not have the entire amount to buy it. Another client has the funds to purchase the item and can rent it out at a premium to make a profit.

However, this is only the external side. In fact, these two operations have many differences.

The main difference is the ability to take into account equipment during leasing, both on the balance sheet of the leasing company and on the balance sheet of the enterprise. When renting an item, it appears in the off-balance sheet accounts of the recipient of the item.

Differences and similarities between leasing and renting

Features for comparison	Leasing	Rent
Deadlines	usually a long-term deal. The term is equal to the useful use of the leased asset	provision of a leased item for a short period that is not related to its useful life
Possibility to use land plots	not provided	Maybe
Redemption of the item at the end of the contract	Can	it is forbidden
Type of property rights	use
Legal regulation	Chapter 34 of the Civil Code – “Rent”; Article 2 of the Federal Law	Chapter 34 Civil Code
Liability for the risk of accidental breakage, destruction or damage to the subject of the transaction	direct responsibility on the lessee	the tenant is not responsible
Providing documents confirming solvency	a comprehensive assessment of the enterprise for solvency is carried out	not required, only account details are needed
Who chooses the property	lessee (enterprise)	landlord
Subject of the transaction and its quality	implies new equipment	the object may be property that has been rented several times, defects and malfunctions cannot be excluded

Lease payment schedules

Regular payments on leased property may be regressive, seasonal, annuity.

Regressive payments mean that the monthly payment decreases with each subsequent payment. The same amount (fixed) is meant by annuity payments. As the name suggests, seasonal payments depend on the time of year. Many businesses make a profit during a certain season, so the leasing company may consider special payment terms for them.

What is subleasing

The following cases often arise: the lessee no longer needs the received property or cannot use it. And then thoughts arise: is it possible to rent out the leased item? This will be considered subleasing.

This type of transaction is legalized and a corresponding subleasing agreement is drawn up. Its participants are the new acquirer of the property - the sublessee, the former lessee who no longer needs the subject of the agreement.

The lessor is an organization that owns the property and writes a written consent or prohibition on the transaction.

Conclusion

Now you know what leasing is, types of leasing and how to lease a car, equipment, etc. If you have questions, ask in the comments below. And also read other articles on our website!

JSC "BKR-Intercom-Audit"

The materials were prepared by a group of consultants and methodologists of JSC "BKR-Intercom-Audit"

Let's consider the main definitions given in Article 2 of Law No. 164-FZ:

« leasing - a set of economic and legal relations arising in connection with the implementation of a leasing agreement, including the acquisition of the leased asset;

leasing agreement - an agreement under which the lessor (hereinafter referred to as the lessor) undertakes to acquire ownership of the property specified by the lessee (hereinafter referred to as the lessor) from a seller specified by him and to provide this property to the lessee for a fee for temporary possession and use. The leasing agreement may provide that the choice of the seller and the purchased property is carried out by the lessor;

leasing activity is a type of investment activity for the acquisition of property and its transfer to leasing.”

Article 3 of the above law defines the subject of leasing:

« 1. The subject of leasing can be any non-consumable things, including enterprises and other property complexes, buildings, structures, equipment, vehicles and other movable and immovable property that can be used for business activities.

2. The subject of leasing cannot be land plots and other natural objects, as well as property that is prohibited for free circulation by federal laws or for which a special circulation procedure has been established.”

Now let's turn to Article 665 of the Civil Code of the Russian Federation. It says there that:

« Under a financial lease agreement (leasing agreement), the lessor undertakes to acquire ownership of the property specified by the lessee from a seller identified by him and to provide the lessee with this property for a fee for temporary possession and use for business purposes. In this case, the lessor is not responsible for the choice of the rental item and the seller.

The financial lease agreement may stipulate that the choice of the seller and the purchased property is carried out by the lessor.”.

As we see, the definitions of a leasing agreement differ only in terms of the line on the responsibility of the lessor (lessor). However, the fact is that in Law No. 164-FZ, issues of liability of the parties are highlighted in a separate article 10, which is called “Rights and obligations of participants in a leasing agreement.”

« The rights and obligations of the parties to the leasing agreement are regulated by the civil legislation of the Russian Federation, this Federal Law and the leasing agreement.

When leasing, the lessee has the right to present directly to the seller of the leased item requirements for quality and completeness, deadlines for fulfilling the obligation to transfer the goods and other requirements established by the legislation of the Russian Federation and the purchase and sale agreement between the seller and the lessor».

A leasing agreement is a type of rental agreement. Therefore, the general rules of a lease agreement also apply to a leasing agreement.

The current Russian legislation imposes a number of requirements on the procedure for carrying out leasing transactions.

First of all, this applies to the execution of a leasing agreement (financial lease agreement).

The concept of a financial lease (leasing) agreement reflects the triple nature of the leasing transaction:

1) the lessor (lessor) enters into an agreement with a supplier (selected by him or the lessee in accordance with the terms of this agreement) for the purchase of property leased;

2) the lessor enters into (in most cases) an agreement with the bank to obtain a loan to purchase this property;

3) the lessor enters into an agreement with the lessee (lessee) to lease this property.

Thus, the concept leasing activities can be defined as a type of investment activity for the acquisition of property.

The basic requirements for the form and content of the leasing agreement are established in Article 15 of Law No. 164-FZ.

The leasing agreement is concluded in writing. This requirement should be considered as a special norm established in addition to Article 609 of the Civil Code of the Russian Federation, which provides general requirements for the form and state registration of a lease agreement:

« A lease agreement for a period of more than a year, and if at least one of the parties to the agreement is a legal entity, regardless of the term, must be concluded in writing. A real estate lease agreement is subject to state registration, unless otherwise provided by law».

And paragraph 1 of Article 15 of Law No. 164-FZ establishes the mandatory written form. It does not matter for what period the contract is concluded, and what is its subject - movable or immovable property.

The leasing agreement presupposes the participation of third parties in its execution along with the lessor and the lessee. They are involved in its execution by concluding relevant agreements. Some of these agreements are mandatory for the legal qualification of a leasing transaction (leasing agreement), others are considered accompanying.

Mandatory An agreement is a purchase and sale agreement, which, as a general rule, is concluded by the lessor at the direction of the lessee with a certain seller and in relation to certain property. In this case, the lessor is not responsible for the choice of the leased item and the seller. At the same time, the financial lease agreement may provide that the choice of the seller and the purchased property is made by the lessor.

When concluding a purchase and sale agreement, the lessor is obliged to notify the seller that the property is intended to be leased to a certain person. This is stated in Article 667 of the Civil Code of the Russian Federation. If the lessor did not do this, then the concluded agreement is not recognized as a leasing agreement (Resolution of the Federal Antimonopoly Service of the Far Eastern District dated April 3, 2001 No. F03-A37/01-1/442). However, the actions of the parties to actually carry out the transaction indicate the existence of rental relations between them with the right to purchase the leased property, which are regulated by paragraph 1 of Chapter 34 of the Civil Code of the Russian Federation.

In addition, failure to recognize the agreement as a leasing agreement does not entail the invalidity of the purchase and sale agreement, but affects the establishment of the seller’s liability to the lessee for the performance of this agreement (Article 670 of the Civil Code of the Russian Federation). Without this condition for the seller, the purchase and sale agreement must be qualified as a contract with execution to a third party, under which liability arises, as a rule, only to the buyer. When the requirements of Article 667 of the Civil Code of the Russian Federation are fulfilled, the purchase and sale agreement acquires characteristics characteristic of contracts in favor of a third party (Article 430 of the Civil Code of the Russian Federation).

In accordance with Article 670 of the Civil Code of the Russian Federation, the tenant (lessee) has the right to present directly to the seller of the property that is the subject of the financial lease agreement, requirements arising from the purchase and sale agreement concluded between the seller and the lessor, in particular with regard to the quality and completeness of the property, the terms of its delivery, and in other cases of improper performance of the contract by the seller. In this case, the tenant has the rights and obligations provided for by the Civil Code of the Russian Federation for the buyer, except for the obligation to pay for the acquired property, as if he were a party to the purchase and sale agreement for the specified property. However, the tenant cannot terminate the purchase and sale agreement with the seller without the consent of the landlord.

In relations with the seller, the tenant and the lessor act as joint and several creditors (Article 326 of the Civil Code of the Russian Federation).

Unless otherwise provided by the lease agreement, the lessor is not responsible to the lessee for the seller's fulfillment of the requirements arising from the purchase and sale agreement, except in cases where the responsibility for choosing the seller lies with the lessor. In the latter case, the tenant has the right, at his own discretion, to present claims arising from the purchase and sale agreement, both directly to the seller of the property and to the lessor, who are jointly and severally liable.

Related include agreements on raising funds, a pledge agreement, a guarantee agreement, a surety agreement and others.

For example, the return of funds spent by the lessor on the purchase of equipment and leasing it can be ensured by a bank guarantee or a pledge of inventory and other property owned by the lessee or a third party. Guarantees from an insurance company, a third party or an executive authority can be accepted as security under a leasing agreement.

In order to raise funds, the lessor has the right to enter into an agreement to pledge the leased asset.

Based on paragraph 3 of Article 15 of Law No. 164-FZ, an essential condition of the leasing agreement is condition on the subject of leasing. The agreement must contain data that makes it possible to definitely establish the property to be transferred to the lessee as the subject of leasing.

In accordance with paragraph 4 of Article 15 of Law No. 164-FZ, on the basis of a leasing agreement, the lessor undertakes to acquire ownership of certain property from a certain seller in order to transfer it for a certain fee for a certain period, under certain conditions as a leased asset to the lessee, to fulfill other obligations arising from the content of the leasing agreement.

The lessor is obliged to provide the property that is the subject of leasing in a condition that complies with the terms of the leasing agreement and the purpose of this property (clause 1 of Article 17 of Law No. 164-FZ).

Clause 5 of Article 15 of Law No. 164-FZ established main responsibilities of the lessee.

Firstly, the lessee is obliged to accept the leased asset in the manner prescribed by the specified leasing agreement.

Secondly, the main obligation of the lessee under the agreement is the obligation to pay lease payments to the lessor in the manner and within the terms provided for in the leasing agreement.

Leasing payments mean the total amount paid by the lessee to the lessor for the right granted to him to use the property - the subject of leasing. Leasing payments are paid in the form of separate installments.

When concluding an agreement, the parties establish the total amount of leasing payments, the form, method of calculation, frequency and amount of leasing payments, as remuneration of the lessor, frequency and amount of payment of contributions, as well as methods of their payment.

Thirdly, upon expiration of the lease agreement, the lessee is obliged to return the leased item, unless otherwise provided by the specified agreement, or acquire ownership of the leased item on the basis of a purchase and sale agreement.

Fourfold, fulfill other obligations arising from the contents of the leasing agreement. These include the obligation to make an advance payment or a security deposit, the obligation to conclude the leased asset in favor of the lessor.

The leasing agreement may also provide for the right of the lessee to extend the leasing term while maintaining or changing the terms of the leasing agreement (clause 7 of Article 15 No. 164-FZ).

Paragraph 6 of Article 15 No. 164-FZ of the leasing agreement may stipulate circumstances that the parties consider to be an indisputable and obvious violation of obligations and which lead to the termination of the leasing agreement and the seizure of the leased asset. An indisputable and obvious violation of the obligation in the Law “On Financial Lease (Leasing)” is considered as a basis for early termination of the leasing agreement and seizure of the leased asset at the request of one party. Currently, fixing the list of such circumstances in the agreement is left to the discretion of the parties, from which it can be concluded that we are talking about specific cases of a significant violation of the terms of any agreement (clause 2 of Article 450 of the Civil Code of the Russian Federation) or a lease agreement (Article 619 of the Civil Code of the Russian Federation), formulated in relation to to the features of the leasing agreement and the nature of the relationship between specific parties. From now on, such violations do not provide grounds for applying extrajudicial measures to the party, as provided for in the old version of the law. The only exception is the undisputed collection of arrears on lease payments, but this does not involve unilateral termination of the contract and seizure of the leased asset. Such circumstances, regardless of whether they are provided for by the contract or not, now give the right to go to court with a demand to terminate the contract, withdraw the leased asset and compensate for the losses caused. The presence of such circumstances in the text of the contract relieves the party of the need to prove the materiality of the violation, since the parties agreed in advance to consider it an indisputable and obvious violation of the obligation, entailing early termination of the contract and withdrawal of the leased asset.

As for the termination of a leasing agreement in court, it is necessary to remember: the leasing law directly speaks only of the lessor’s right to demand early unilateral termination of the agreement (clause 2, article 13 of Law 164-FZ). But the conditions under which the leasing agreement ceases to operate on his initiative are not specified. However, the contract can be terminated unilaterally only through the court (clause 2, article 450 of the Civil Code of the Russian Federation). And only if the terms of the contract are significantly violated.

The Civil Code of the Russian Federation provides for such conditions for lease agreements, but leasing is one of its varieties (Article 625 of the Civil Code of the Russian Federation). The grounds for early termination of the lease agreement at the initiative of the lessor will be as follows:

The lessee uses the property for other purposes (clause 3, article 615 of the Civil Code of the Russian Federation, clause 1, article 619 of the Civil Code of the Russian Federation). Or it significantly deteriorates the property (clause 2, Article 619 of the Civil Code of the Russian Federation);

The lease payment was transferred in violation of the established deadline more than two times in a row (clause 3, Article 619 of the Civil Code of the Russian Federation);

The lessee does not make major repairs to the property, provided that this is his responsibility (clause 4, Article 619 of the Civil Code of the Russian Federation).

The Civil Code of the Russian Federation also gives the lessee the opportunity to terminate the leasing agreement ahead of schedule through the court unilaterally if:

The property was received without technical accessories and related documents (clause 2, Article 611 of the Civil Code of the Russian Federation);

The lessor did not provide the property on time or prevented its use (clause 3, article 611 of the Civil Code of the Russian Federation, clause 1, article 620 of the Civil Code of the Russian Federation, clause 2, article 668 of the Civil Code of the Russian Federation);

When receiving the property, deficiencies were discovered (clauses 2, 4 of Article 620 of the Civil Code of the Russian Federation);

The lessor does not make major repairs to the property, although this is his responsibility (clause 3 of Article 620 of the Civil Code of the Russian Federation);

The lessor did not warn the tenant about the rights of third parties to the leased property (Article 613 of the Civil Code of the Russian Federation). For example, the property transferred to the lessee is pledged.

Paragraph 1 of Article 450 of the Civil Code of the Russian Federation states that a contract can be terminated by agreement between the parties, unless otherwise provided in the Civil Code of the Russian Federation, other laws or in the contract itself. The Leasing Law also does not prohibit this option for terminating obligations. Therefore, if such a condition is specified in the contract, it is quite possible to do without a trial.

You can avoid litigation, even if the contract does not contain a provision for its early termination. The main thing is the presence of mutual desire of the parties. If there is one, the lessor and lessee can terminate the relationship at any time.

To do this, you just need to conclude an appropriate agreement, which will serve as the basis for reflecting the return of property to the lessor in accounting and tax accounting. Therefore, the termination agreement must indicate the date of termination of leasing, the procedure and conditions for the return of leased property, and the fate of unpaid lease payments.

Article 4 of Law 164-FZ defines leasing entities:

« Leasing subjects are:

lessor - an individual or legal entity who, at the expense of borrowed and (or) own funds, acquires ownership of property during the implementation of a leasing agreement and provides it as a leased asset to the lessee for a certain fee, for a certain period and on certain conditions for temporary possession and use with or without transfer to the lessee of ownership of the leased asset;

lessee - an individual or legal entity who, in accordance with the leasing agreement, is obliged to accept the leased asset for a certain fee, for a certain period and under certain conditions for temporary possession and use in accordance with the leasing agreement;

salesman - an individual or legal entity who, in accordance with the purchase and sale agreement with the lessor, sells to the lessor within a specified period the property that is the subject of leasing. The seller is obliged to transfer the leased item to the lessor or lessee in accordance with the terms of the purchase and sale agreement. The seller can simultaneously act as a lessee within the same leasing legal relationship.”

So, the subjects of leasing are: the lessor, the lessee and the seller.

They are direct (immediate) participants in leasing relations. Indirect participants in a leasing transaction are banks that lend to the lessor and act as guarantors in transactions, insurance companies, intermediaries, and leasing brokers. According to Russian legislation, such indirect participants are not classified as leasing entities.

Any of the leasing entities can be either a resident or a non-resident of the Russian Federation.

Example. From the consulting practice of JSC BKR "Intercom-Audit".

Question:

Can a State Institution (GI), which does not have the rights of commercial activity under the charter, act as a lessee under a leasing agreement for the purpose of carrying out its tasks within the framework of the main activities of the GI?

Answer:

Law No. 164-FZ does not contain a direct indication of limiting the circle of persons who can act as lessees.

When solving this problem, it is necessary to examine the very concept of a state institution and its legal capacity in terms of concluding transactions with third parties, as well as the legal capacity of the institution in relation to the disposal of its property.

In accordance with paragraph 3 of Article 2 of the Federal Law of January 12, 1996 No. 7-FZ “On Non-Profit Organizations,” institutions are classified as non-profit organizations.”

According to Article 161 of the Budget Code of the Russian Federation (hereinafter referred to as the Budget Code of the Russian Federation), organizations endowed with state or municipal property with the right of operational management, which do not have the status of a federal government enterprise, are recognized as budgetary institutions.

A budgetary institution is an organization created by government bodies of the Russian Federation, government bodies of constituent entities of the Russian Federation, local government bodies to carry out managerial, socio-cultural, scientific-technical or other functions of a non-commercial nature, activities that are financed from the relevant budget or the state budget extra-budgetary fund based on estimates of income and expenses.

A budgetary institution uses budget funds in accordance with the approved budget of income and expenses. Federal Treasury of the Russian Federation or other body executing the budget, together with the main managers of budget funds determines the rights of a budgetary institution on the redistribution of expenses by subject items and types of expenses when executing the estimate.

Institutions, unlike other types of non-profit organizations, are not the owners of their property. The owner of the institution's property is its founder. Institutions have a limited right to the property transferred to them - the right of operational management (Article 296 of the Civil Code of the Russian Federation). Institutions that have property under the right of operational management own, use and dispose of it:

- firstly, within the limits established by law;

- secondly, in accordance with the goals of its activities;

- thirdly, in accordance with the owner’s instructions;

- fourthly, in accordance with the purpose of the property.

That is, an institution, in accordance with paragraph 1 of Article 298 of the Civil Code of the Russian Federation, as a general rule, is generally deprived of the right to dispose, including alienation, of any property assigned to it, unless we are talking about funds spent according to estimates.

However, an institution, with the permission of the owner, can engage in entrepreneurial activities and enter into relations with commercial organizations, if this right is provided for by the institution’s charter. Income received from such activities and property acquired from these incomes are at the independent disposal of the institution and are accounted for on a separate balance sheet. In this case, the institution is liable for its obligations with the funds at its disposal. If they are insufficient, the owner of the relevant property bears subsidiary (additional) liability for the obligations of the institution.

Subsidiary (additional) liability in accordance with Article 399 of the Civil Code of the Russian Federation means that before making claims against the owner of the institution’s property, the creditor must first make a claim against the institution. If the institution does not satisfy the creditor’s claim or the creditor does not receive a response from it within a reasonable time to the presented demand, this demand may be presented to the owner of the institution’s property.

Based on Article 50 of the Civil Code of the Russian Federation, non-profit organizations can carry out entrepreneurial activities only insofar as this serves to achieve the goals of their creation. That is, non-profit organizations can only carry out those types of activities that are specified in their charters (which is confirmed by Article 52 of the Civil Code of the Russian Federation).

In accordance with Articles 665, 666 of the Civil Code of the Russian Federation, under a financial lease agreement (leasing agreement), the lessor undertakes to acquire ownership of the property specified by the tenant from a seller specified by him and to provide the tenant with this property for a fee for temporary possession and use for business purposes. The subject of leasing can be any non-consumable things, including enterprises and other property complexes, buildings, structures, equipment, vehicles and other movable and immovable property that can be used for business activities.

The definition of the concept of entrepreneurial activity is contained in paragraph 1 of Article 2 of Part 1 of the Civil Code of the Russian Federation: 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. .

In this regard, and in accordance with Articles 665, 666 of the Civil Code of the Russian Federation, the conclusion of a leasing agreement presupposes the use of the leased asset by the lessee exclusively for business activities, which is not provided for by the charter of the institution.

Thus, we can conclude that budgetary institutions, like other non-profit organizations, can act as lessees, but only if the following conditions are met:

- the institution, in accordance with the law and constituent documents, has been granted the right to carry out entrepreneurial activities;

- the property received on lease is used by them within the framework of business activities carried out within the permitted limits.

In addition, the source for payment of leasing payments, in our opinion, should be funds received from the institution’s business activities (non-budgetary income), since the costs of paying leasing payments are borne not by the federal budget as a source of funding for statutory activities, but by the institution itself.

In the event of concluding a leasing agreement (if this occurs), an institution that does not have the right to engage in entrepreneurial activities, it is necessary, in our opinion, to take into account the following:

- are the costs of paying leasing payments included in the estimate of expenses and income of the institution (since there is liability for misuse of budget funds provided for in Article 15.14 of the Code of the Russian Federation on Administrative Offences, Chapter 28 of the Budget Code of the Russian Federation, and if there is a crime of the Criminal Code of the Russian Federation) ;

- compliance of the transaction with Article 71.72 of the Budget Code of the Russian Federation, since all purchases of goods, works and services worth more than 2000 minimum wages are carried out exclusively on the basis of state or municipal contracts.

State or municipal contract - an agreement concluded by a state authority or local government body, a budgetary institution, an authorized body or organization on behalf of the Russian Federation, a constituent entity of the Russian Federation or a municipal entity with individuals and legal entities (on a competitive basis) in order to provide state or municipal needs provided for in the expenditures of the relevant budget and which includes a mandatory condition for the payment of a penalty.

End of the example.

As already noted, participants in leasing relations can be both legal entities and individual entrepreneurs. However, in most cases, leasing activities in the Russian Federation are carried out leasing companies and firms.

Leasing companies (firms) are commercial organizations (residents and non-residents of the Russian Federation) performing the functions of lessors in accordance with Russian legislation and their constituent documents. A leasing company - a non-resident of the Russian Federation is understood as a foreign legal entity carrying out leasing activities on the territory of the Russian Federation.

At the same time, the founders of leasing companies (firms) can also be legal entities and individuals (residents or non-residents of the Russian Federation).

To carry out their activities, leasing companies have the right to attract investment funds from legal entities and (or) individuals who are both residents and non-residents of the Russian Federation (clause 4 of Article 5 No. 164-FZ).

In a leasing transaction, the relationship between leasing subjects is built according to the following scheme:

1) a potential lessee interested in obtaining specific types of property (real estate, equipment, machinery), independently, based on the information, experience, recommendations, and results of previously reached agreements, selects the supplier who has this property. Due to the insufficiency of its own funds and limited access to credit resources for the acquisition of property or the absence of the need for a mandatory purchase of property, the lessee turns to its potential lessor, who has the necessary funds, with a request to participate in the transaction.

2) the participation of the lessor is expressed in the following:

Checking the compliance of the price agreed upon by the lessee with the current market level;

Purchasing the property needed by the lessee from a supplier or manufacturer on the basis of a purchase and sale agreement for the ownership of a leasing company;

Transfer of purchased property to the lessee for temporary use on the terms specified in the leasing agreement.

You can find out more about the features of leasing operations in the book of JSC “BKR-Intercom-Audit” “Leasing operations”.

Leasing is represented by a special financial lease, on the basis of which the lessee can take ownership of any expensive object after a certain period of time transfers the rent to the owner of the property. The lessor is the second participant in this transaction, who is represented by the owner of the leased object. He buys ownership of any item, most often represented by a car, real estate or expensive equipment. He transfers this property to the second party to the agreement on the basis of a leasing agreement. At the same time, the contract specifies the conditions on the basis of which cooperation is carried out.

Leasing concept

Leasing is also called financial lease. Its features include:

• such a transaction involves the lessor, the seller of the property and the lessee;
• parties to the agreement can be individuals or companies;
• such a transaction consists in the fact that certain property is transferred by the owner to another party for temporary use for a certain fee;
• the choice of the seller of the property can be carried out by both parties to the leasing agreement;
• at the end of the leasing period, the lessee can buy back the used item;
• any organization can act as both a seller and a lessee;
• A special feature of a financial lease is that a completely new property is transferred for use, and often it is chosen by the direct lessee, after which it is acquired by the lessor.

All these factors must be taken into account by all parties to the agreement.

Transaction participants

In such a transaction there are three participants, which include the lessor, the lessee and the seller of the property. Therefore, at least two contracts are drawn up. These agreements are interrelated.

The lessor is a participant in the transaction who receives profit from the transfer of purchased property for use to another party. In this case, the lessee can purchase the property if necessary. But he may decide to return the item.

Who can be a lessor?

If any company or person wants to become a leasing participant, then they must understand what leasing, the lessor and the lessee are. Each participant has both rights and responsibilities. Additionally, after signing a formal agreement, they have a certain responsibility to each other.

The lessor may be:

• private individuals officially registered as individual entrepreneurs;
• leasing companies, and these may even include banks, but for this, the charter must contain information that allows them to engage in this type of activity.

Leasing can be offered to both different companies and individuals. The conditions for any client may differ significantly, since before signing the contract, the financial condition and other characteristics of the person or company are carefully studied.

What actions are performed by the lessor?

A lessor is a company that offers specific services to clients. They consist in the fact that the property needed by the client, which was previously purchased from a suitable seller, is transferred for use. The lessor, represented by the company, is obliged to perform several significant actions on the basis of this contract. These include:

• a certain agreement is reached with a specific client;
• a search is carried out for a seller offering property that meets the client’s requirements;
• the company purchases the item;
• the property is transferred for use to the client, for which a leasing agreement is drawn up, and the lessor remains the owner of the item, but receives a certain amount monthly for the transfer of the item;
• at the end of the agreement, the leased asset may be returned to the company or become the property of the lessee.

In order for a company to have the right to engage in such activities, its constituent documentation must contain the relevant information.

Nuances of leasing property

The leased property remains in the use of the lessee throughout the entire term of the contract. The leased asset remains the property of the lessor, so it is he who is the owner of this property. The rules for leasing various objects include:

• if the recipient of the property, for various reasons, stops contributing funds in the form of payment under the agreement, then he may lose the right to use this item;
• if the lessee is declared bankrupt, then it is the lessor who has the primary right to receive payments under the leasing agreement;
• if the property is destroyed in any way, the recipient is obliged to reimburse the owner for all costs of purchasing the item.

A leasing agreement has legal force only if certain mandatory conditions are present. Therefore, the parties must take a responsible approach to the formation of this document. If it contains errors or clauses that violate legal requirements, it will be impossible to defend your rights in court.

What responsibilities does the lessor have?

The responsibilities of the lessor are clearly stated directly in the formal contract. They must be strictly observed by the participant in the transaction. These include:

• purchase from the seller of property that meets the requirements and desires of the lessee;
• transfer of the purchased item to the second party to the agreement;
• providing the seller of the property with information that the item will be leased, and the notification must be made exclusively in writing;
• reimbursement of the lessee's costs associated with improvement, maintenance or repair work in relation to the received property, if this is specified in the official contract;
• at the end of the agreement, the property is taken back if the lessee, for various reasons, does not want to buy it back;
• the company is obliged to fulfill all obligations specified in the leasing agreement.

If the lessor violates these obligations, this may lead to early termination of the contract or the company being held liable. Leasing may be offered to individuals or companies, but the responsibilities remain the same.

Company remuneration

The lessor is a participant in the transaction who receives a certain profit from its conclusion. Cash payments received from the lessee consist of two parts:

• direct remuneration for the transfer of property;
• compensation for costs incurred by the company in the process of purchasing the subject of the contract.

To determine the fee, it is important to make the necessary calculations in advance. The lessor's risks are associated with the fact that if the recipient of the property refuses to transfer funds for various reasons, the company will not be able to receive the required amount of profit. Although she has the right to recover compensation from the violator of the agreement, it will still be less than the profit that could have been received from the transaction.

What rights does the company have?

The rights of the lessor are presented in the following forms:

• independent selection of the leased asset, if this is provided for in the current leasing agreement;
• filing claims against the lessee if he violates the terms of the contract or mishandles the received property, which leads to its damage or destruction;
• early termination of the contract with simultaneous receipt of compensation if the second party to the transaction violates the terms of cooperation;
• extension of the contract term, if necessary for the lessee;
• resumption of cooperation on new terms, which should be mutually beneficial.

If the agreement is drawn up correctly, it can be used in court to assert the rights of each participant. Therefore, if the lessee, for various reasons, refuses to transfer funds, he will be forced by a court decision to pay large compensation.

What costs does the lessor face?

When providing leasing to individuals or companies, the lessor is forced to bear certain costs. These include:

• acquisition of property that is the subject of a leasing agreement;
• costs associated with providing various guarantees to the lessee;
• payment of property tax;
• if an item is purchased in another country, then you have to additionally spend money on proper customs clearance and payment of customs duties and taxes;
• costs of delivery and installation, as well as adjustment of equipment, if such actions are provided for in the agreement;
• protection of property during its transportation or storage in a warehouse;
• costs associated with maintaining and repairing the item.

Additionally, costs may arise when registering an object transferred to the lessee. Therefore, all these costs must be covered by the income received from the leasing agreement. This leads to the fact that, after a preliminary agreement, the lessor must make some mandatory calculations to determine the optimal monthly payment amount.

Lessor's liability

The lessor is represented as a link between the user and the seller of the property. He has the required amount of funds necessary to purchase this item. Next, the property is transferred to the client, who can use it for its intended purpose, but does not become its owner.

The responsibility of the company that provides leasing services is as follows:

• if the company violates the interests or rights of the lessee, as well as the terms of the agreement, the agreement may be terminated early, and the lessor will not be able to count on receiving compensation;
• if the property is provided for use to the second party to the transaction in violation of the deadlines, the lessee may demand the accrual of a penalty;
• If an item is transferred that does not meet the client's requirements, this may result in a significant reduction in monthly payments.

Therefore, it is in the interests of the direct leasing company to strictly follow the terms of the contract.

Conclusion

The lessor is represented by a company that is engaged in leasing any property to other companies or individuals. He can be represented by a citizen who has officially registered as an individual entrepreneur. He has numerous rights and responsibilities.

If the lessor violates the clauses of the formal agreement, then he will have to bear responsibility for his actions. It is represented by early termination of the contract, lack of compensation and other negative consequences.