Leasing of public premises. Instructions "MN": How to rent premises near the city
Rental state property institutions
In the Russian Federation, as you know, private, state, municipal and other forms of ownership are recognized. In accordance with civil law, state property in the Russian Federation is property owned by the Russian Federation (federal property) and property owned by the constituent entities of the Russian Federation.
We will talk about the leasing of state property by institutions in this article.
Note that legal entities are created in the form of commercial and non-commercial organizations, and if commercial organizations pursue profit as the main goal of their activities, then non-profit organizations do not have profit as a goal of their activities and the profit is not distributed among the participants.
A non-profit organization created by the owner to carry out managerial, socio-cultural or other functions of a non-profit nature is recognized as an institution. An institution, in accordance with Article 120 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), can be created by a citizen or a legal entity, a so-called private institution, or by the Russian Federation, a constituent entity of the Russian Federation, a municipal formation, respectively, such institutions are state and municipal.
We remind readers that on January 1, 2011, the Federal Law of May 8, 2010 No. 83-FZ "On Amendments to Certain Legislative Acts of the Russian Federation in Connection with the Improvement of the Legal Status of State (Municipal) Institutions" (hereinafter - Law No. 83-FZ).
In accordance with article 6 of the named Law, now all state and municipal institutions are divided into three types: autonomous, budgetary, state-owned.
The legal status of autonomous institutions is determined by the Federal Law of November 3, 2006 No. 174-FZ "On Autonomous Institutions" (hereinafter - Law No. 174-FZ).
The peculiarities of the legal status of budgetary institutions are established by Article 9.2, which supplemented the Federal Law of January 12, 1996 No. 7-FZ "On Non-Profit Organizations" (hereinafter - Law No. 7-FZ).
Features of the legal status of state institutions are established by Article 161 of the Budget Code of the Russian Federation (hereinafter - the BC RF).
The procedure for concluding a lease agreement.
The legal relationship of the parties when leasing property is regulated by Chapter 34 "Rent" of the Civil Code of the Russian Federation. In accordance with article 606 of the Civil Code of the Russian Federation, under a lease (property lease) agreement, the lessor (landlord) undertakes to provide the lessee (lessee) with property for a fee for temporary possession and use or for temporary use. The right to lease property belongs to its owner. In addition, landlords can also be persons entitled by law or the owner to lease the property.
A lease agreement for state property can be concluded bilaterally, that is, between the owner of state property (lessor) and the lessee or between the asset holder (a specific institution or enterprise) of the property providing operational management and the lessee, but in this case the asset holder is the lessor.
A lease agreement can be concluded in a tripartite manner, that is, between the lessor - the owner of state property, the asset holder (a specific institution or enterprise) and the lessee.
Note!
To conclude a lease agreement providing for the transfer of ownership and (or) use rights in relation to state property assigned to a state (municipal) budgetary and treasury institution on the basis of operational management, the institution can only subject to a tender or auction. This requirement is established by paragraph 3 of Article 17.1 of the Federal Law of July 26, 2006 No. 135-FZ "On Protection of Competition" (hereinafter - the Law "On Protection of Competition").
The rules for holding tenders or auctions for the right to conclude lease agreements, agreements on gratuitous use, agreements on trust management of property, other agreements providing for the transfer of ownership and (or) use rights in relation to state or municipal property, approved by Order of the Federal Antimonopoly Service dated February 10, 2010 No. 67 "On the procedure for holding tenders or auctions for the right to conclude lease agreements, agreements on gratuitous use, agreements on trust management of property, other agreements providing for the transfer of ownership and (or) use rights in relation to state or municipal property, and a list of types of property in respect of which the conclusion of these contracts can be carried out by holding tenders in the form of an auction. "
Note that state (municipal) budgetary and treasury institutions, which have been granted the right to own and (or) use a room, building, structure or structure, can transfer such rights in relation to a part or parts of a room, building, structure or structure to third parties with the consent of the owner. without tenders or auctions. In this case, the total area of \u200b\u200bthe transferred part or parts of a room, building, structure or structure cannot exceed ten percent of the area of \u200b\u200ba room, building, structure or structure, the rights to which are granted to the institution, and be more than twenty square meters, which follows from paragraph 4 of Article 17.1 Law "On Protection of Competition".
How do agencies account for the rent for leased public property for tax purposes?
The taxation procedure for income received from the lease of state property will differ depending on whether the lease agreement is concluded by the institution - bilateral or trilateral.
Let's consider both options.
Bilateral agreement.
Budgetary and state institutions that receive income from entrepreneurial and other income-generating activities are taxpayers of corporate income tax and determine the tax base for this tax in the manner prescribed by Chapter 25 "Corporate income tax" of the Tax Code of the Russian Federation (hereinafter - the Tax Code of the Russian Federation ).
As a reminder, since January 1, 2011, Article 321.1 of the Tax Code of the Russian Federation, which regulates the specifics of tax accounting by budgetary institutions, has ceased to be effective.
Consequently, now budgetary institutions are obliged to calculate and pay income tax in accordance with the generally established procedure in accordance with Chapter 25 of the Tax Code of the Russian Federation.
The tax base for corporate income tax is determined in accordance with Article 274 of the Tax Code of the Russian Federation. For the purposes of taxation of profit, the tax base is the monetary expression of the profit subject to taxation. Profit for Russian organizations, in accordance with Article 247 of the Tax Code of the Russian Federation, is recognized as income received, reduced by the amount of expenses incurred, determined in accordance with Chapter 25 of the Tax Code of the Russian Federation.
Funds received from the lease of property, on the basis of clause 4 of Article 250 of the Tax Code of the Russian Federation, are included in non-operating income, and, therefore, are subject to accounting by budgetary and state institutions when determining the tax base for corporate income tax. This is stated in the Letter of the Ministry of Finance of the Russian Federation dated January 11, 2010 No. 03-03-06 / 4/1, as well as in the Resolution of the Federal Antimonopoly Service of the North Caucasus District of March 10, 2010 in case No. A32-447 / 2008-13 / 10 -56 / 182-2009-29 / 272.
The date of receipt of income from renting out property is determined for the last day of the reporting period (subparagraph 3 of paragraph 4 of article 271 of the Tax Code of the Russian Federation)
The object of taxation as value added tax (hereinafter - VAT) is the sale of goods (works, services) on the territory of the Russian Federation, which is established by subparagraph 1 of paragraph 1 of Article 146 of the Tax Code of the Russian Federation.
The place of implementation of works (services) on the basis of subparagraph 1 of paragraph 1 of Article 148 of the Tax Code of the Russian Federation is the territory of the Russian Federation if the works (services) are directly related to real estate located in the territory of the Russian Federation. These services include, in particular, rental services.
Thus, the provision of state property for rent is subject to VAT taxation.
Tripartite agreement.
In a tripartite agreement, the lessor, as noted above, is the owner of state property. Consequently, the rent goes to the budget, bypassing the accounts of the institution or enterprise - the balance holder of state property leased, on the basis of which this institution cannot be a payer of income tax in relation to income received from leasing state property.
As we have already said, the provision of property for rent is subject to VAT. On the basis of clause 3 of Article 161 of the Tax Code of the Russian Federation, when federal property, property of the constituent entities of the Russian Federation and municipal property are leased out on the territory of the Russian Federation by state authorities, local authorities and state institutions, the tax base is determined as the amount of rent, including tax.
In this case, the tax base is determined by the tax agent separately for each leased property.
Recall that tax agents are persons who, according to the Tax Code of the Russian Federation, are entrusted with the duties of calculating, withholding from the taxpayer and transferring taxes to the budget system of the Russian Federation, which follows from paragraph 1 of Article 24 of the Tax Code of the Russian Federation.
In this case, the lessees of the specified property are recognized as tax agents, therefore they are obliged to calculate, withhold from the income paid to the lessor, and pay to the budget the corresponding amount of VAT, which can subsequently be deducted (paragraph 3 of Article 171 of the Tax Code of the Russian Federation).
It should be noted that before January 1, 2011, a tenant was recognized as a tax agent for VAT only if the landlord of real estate (buildings, structures, etc.) was a state or local government body (paragraph 3 of Article 161 of the Tax Code of the Russian Federation).
From January 1, 2011, the lessee is recognized as a tax agent for VAT if the lessor is both a state or local government body and a state institution (clause 3 of Article 161 of the Tax Code of the Russian Federation).
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Any business is aimed at making a profit, and the first rule of making a profit is to minimize the costs of the organization. Rent and maintenance of non-residential premises is often one of the main expenses of an enterprise, and for small and medium-sized businesses in the city of Moscow, the amount of rent is sometimes a matter of survival. Renting non-residential premises from the city is the best way to reduce costs in such cases.
The assistance of specialists from the law firm "Mosty" in concluding a lease agreement from the city is in great demand among small and medium-sized enterprises. Our specialists help to understand all the terms of the auction and, at the request of the client, provide legal support for the entire process. The result of this joint activity is the successful signing of a lease agreement with you from the Moscow Property Department.
What are the advantages of renting from the city
It so happened that rent from the city for entrepreneurs is both attractive and inaccessible. The lack of specialized lawyers on the staff who are able to understand all the intricacies, deliberate bureaucratization of processes, difficulties in gaining access to electronic trading - all these are artificial barriers that hide the main advantage of such a lease - low rental rates and the price of an object. The difference between commercial and urban rental prices for premises sometimes differs by 4-5 times.
Prices
Apart from the low cost, renting premises near the city of Moscow has a number of other advantages:
- the possibility of redemption of premises after 2 years ( special condition, must be specified in the contract);
- stable rental rate for the entire term of the contract (10 years), the prospect of long-term use of the premises;
- long-term contract with the state;
- guaranteed advantage in the subsequent extension of the contract.
The only disadvantage of renting premises from the city is the impossibility of subletting them. However, this inconvenience is offset by the possibility of assigning lease rights to real estate in accordance with the Civil Code on favorable terms.
Who can rent premises from the Moscow Property Department
Both legal entities and individuals can enter into lease agreements with the city. Organizations of any organizational and legal form participate in the auction on an equal basis with individual entrepreneurs and citizens. The difference lies in the package of documents that must be collected and submitted for participation in the auction for the selected premises. Naturally, the list for individuals is much smaller than for LLCs.
Mosty specialists have vast experience in preparing tender documentation. Due to the specifics of our activities, we monitor all changes in federal and city legislation in this area. Our assistance in preparing documents for participation in the auction allows us to reduce the time by more than half and eliminates errors that can lead to refusal. In addition, we will show you how best to submit documents and, if necessary, we will reissue the contract from an individual to a legal entity.
How to rent non-residential premises profitably
In order to conclude a lease agreement for a Moscow city premise from the City Property Department at a profit, you must successfully go through several stages.
- On the official website of the auction, select the premises that match the purpose of your business.
- Obtain permission to inspect it and study all tender documentation in relation to it (auction rules and lease terms).
- Issue an EDS, and with its help obtain accreditation on the electronic trading platform.
- Apply for the auction and take part in the auction for the selected premises.
- At the end of the auction, sign all the necessary protocols, a lease agreement and an acceptance certificate for the premises.
- Register a lease agreement with the state authorities of Rosreestr.
- Perform other necessary actions after the conclusion of the contract (for example, calculate and pay VAT if necessary).
After successfully completing all these stages, you will receive a lease agreement for state or municipal property for a period of 10 years on very favorable terms. In addition, if necessary, you can buy out premises from the city of Moscow without an auction and raising rates, which is an undoubted advantage.
Nuances of participation in auctions for the lease of state property
To participate in the auction, you need to make a deposit to a special account. If you are not the winner of the auction, the deposit will be returned within 10 days. In case of your victory and subsequent refusal to conclude a lease agreement, the deposit remains with the organizer of the auction. That is why it is important to review the lease agreement with the city before deciding whether to participate.
When submitting an auction application, pay attention to the category of persons with whom a lease agreement may subsequently be concluded, and to information on the purpose of the non-residential premises. These two conditions significantly affect the number of bidders. From the practice of employees of the law firm "Mosty", the most in demand premises are "free appointment" on the first floors of residential buildings in the city.
In the absence of economic benefits from doing business, the tenant has the right to terminate the lease agreement with the Moscow Property Department. The standard condition for termination is the landlord's notice at least 3 months before the expected end of the contract. It is better to find out about the presence of penalties for early termination even before concluding a lease.
IMPORTANT! If only one participant is competing for the lease of premises at the auction, the lease agreement is concluded with him on the originally stated conditions.
Our advantages
No prepayment
Compliance with the law
A team of licensed professionals
Individual approach
Affordable prices
Why do I need the help of a lawyer
If you decide to participate in an auction for renting premises near the city, you need to enlist the support of professional lawyers specializing in renting non-residential premises from the Moscow Property Department. Law Firm "Mosty" offers comprehensive support for participation in the auction and the subsequent conclusion of a lease agreement. To minimize costs, you can use certain services of the company, for example, to study the terms of a future contract or prepare the necessary documentation.
Cooperating with our company, you can significantly save time on preparation, collection of documents and obtaining an EDS. In addition, we will translate the future lease agreement from the legal language into Russian, which will allow you to assess all the risks in its execution in advance, as well as to understand how the proposed conditions suit your business.
Our specialists will issue the state registration of a long-term lease agreement in the shortest possible time and will make sure that all the conditions specified in the agreement on the part of the property department are met strictly and on time. From Mosty's practice, filing a complaint about inaction by property department employees is sometimes the only effective way to expedite the process of concluding a lucrative lease after winning an auction.
The need to lease non-residential premises arises mainly from individual entrepreneurs and other legal entities who need these real estate objects to carry out their activities. If renting privatized non-residential premises does not cause significant difficulties, then renting real estate from the state or municipal authorities of the city has a number of nuances that you need to know about in advance.
In accordance with the laws on the protection of competition, which are currently in force in the Russian Federation, municipal authorities have the right to lease out state-owned real estate objects for temporary use. Russian legislation also defines a number of exceptional cases when it is possible not to conduct auctions:
The essence of bargaining
The rental of municipal non-residential premises is subject to a strict registration procedure. The city administration can put up for auction even the real estate that is currently in use. This happens if the contract expires or it is subject to early termination.
The municipal body is obliged to inform in advance about the holding of open tenders on the official state website. If a person wishing to rent non-residential real estate could not timely submit an application for participation in the auction due to a violated notification procedure, he has the right to file a claim in court. After considering the claim, the bargaining may be invalidated together with the transactions concluded as a result of it. At the same time, it is prohibited to conclude a lease agreement earlier than ten days from the date of publication of information on the results of the auction. Violation of this rule is also the basis for filing a claim in court.
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Main obligations of the parties
All rights and obligations of the parties in the lease of municipal non-residential premises are indicated in the agreement concluded between them. The main points of such obligations are the following:
| City administration (lessor) | Tenant |
|---|---|
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Payment and restrictions
The amount of payment for renting non-residential premises from the state must be indicated in the agreement of the transaction. The term of payment or other conditions is also indicated there if the tenant makes payment for six months in advance. The city administration has the right to demand the monthly submission of copies of receipts for payment no later than the specified period. Additional contracts are concluded with other organizations regarding payment for utilities and communication systems. Payment is made to their bank account. In case of non-payment in due time, the municipality has the right to independently write off the required amount of funds from the tenant's account.
In case of late payment for the lease, the contract may incur a penalty in the amount agreed by the parties. The amount of interest cannot be changed more often than once a year. In case of malicious violation of the terms of payment, the tenant must pay a fine, the amount of which is established by a special state commission.
Reasons for early termination
The reasons for the early termination of the transaction are negotiated by the parties and indicated by separate clauses of the agreement. The general grounds for terminating the lease of a property are:
Renewal of lease
The need to extend the lease term for non-residential premises also arises quite often, so it is worth knowing how this can be done. The tenant has the right to extend the term of use of the property without re-bidding if he has properly fulfilled all obligations before. There are two mandatory rules for contract renewal:
- The rent will be changed in accordance with the revaluation of real estate in the region;
- The period for which the transaction will be extended must be at least three years, unless the lessee submits a corresponding application to reduce this period.
Thus, the parties can renegotiate and renew the property use contract as many times as necessary. There are no legal restrictions. The municipality has the right to refuse to extend the term in the event that it has its own views on the premises or the tenant has dishonestly fulfilled the terms of the contract and has a debt to public institutions.
Notices and Disputes
If it is necessary to make any changes to the terms of use of the premises that are rented from the municipal authorities, then this must be reported in writing. In the event of a change in bank details and legal addresses, you need to notify about this immediately. When submitting a written notice, do not forget about the terms and dates. The date of departure will be the postage stamp.
The transaction must be registered with government agencies. Also, the tenant will have to pay a fee. If any controversial issues arise, when the parties cannot independently resolve the conflict and agree, its decision is transferred to the court. Rent changes will take effect no earlier than ten days after notice.
