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If the organization to determine market value of an item of fixed assets held for sale attracts an independent appraiser, then how long can one refer to the opinion given by him and can the cost of an appraisal be taken into account when taxing profits, if the appraised item has not been sold? The experts of the Legal Consulting Service GARANT Pavel Erin and Elena Melnikova explain.
To determine the market value of the fixed assets planned for sale, the organization engages an independent appraiser, but it is not always possible to realize the estimated fixed asset. What is the validity period of the appraiser's report, for how long can you refer to it when determining the market value? Is it possible to take into account in the income tax expense the costs incurred for the valuation of a fixed asset that was not sold during the tax period?
Article 12 of the Federal Law of July 29, 1998 N 135-FZ "On appraisal activities in Russian Federation"(hereinafter referred to as Law N 135-FZ), it is provided that the total value of the market or other value of the object of appraisal indicated in the report drawn up on the grounds and in the manner prescribed by this federal law, is recognized as reliable and recommended for the purpose of making a transaction with the subject of assessment, unless otherwise established in the manner prescribed by the legislation of the Russian Federation or in court.
The appraiser's report indicates the date as of which the value of the appraisal object is determined (part four of article 11 of Law N 135-FZ, clauses 5, 8 of the Federal appraisal standard " General concepts assessments, approaches and requirements for the assessment (FSO N 1) ", approved by order of the Ministry of Economic Development of the Russian Federation of 20.07.2007 N 256, hereinafter - FSO N 1).
Valuation legislation does not establish the validity period of the valuation report as such. At the same time, clause 26 of the FSO N 1 provides that the total value of the market or other value of the appraisal object, with the exception of the cadastral value specified in the appraisal report, can be recognized as recommended for the purpose of concluding a transaction with appraisal objects, if from the date of the appraisal report no more than six months have passed before the date of the transaction with the subject of valuation or the date of submission of the public offer. Note that the court practice does not in all cases consider the expiration of this six-month period as unequivocal evidence of the unreliability of the information on the market value of the object contained in the appraisal report (Resolution of the FAS of the Volgo-Vyatka District of 11/07/2011 N F01-4554 / 11). If a dispute arises about the reliability of the value of the market value of the object of appraisal established in the report, including in connection with the existing other report on the appraisal of the same object, the dispute can be considered in court (Article 13 of Law N 135-FZ, decision of the Arbitration court of the Sverdlovsk region dated 01.06.2012 N A60-12493 / 2011).
It should be noted that the list of cases when an independent assessment of an object is mandatory is limited by law (Article 8 of Law No. 135-FZ). By general rule objects of fixed assets owned by a commercial organization, due to their alienation, are not subject to mandatory assessment. For tax purposes, the use of a price recognized as a market price in a transaction may be important when making transactions between related parties (clauses 1, 3, Article 105.3 of the Tax Code of the Russian Federation), however, even in this case, tax legislation does not oblige the taxpayer to confirm the transaction price with an appraiser's report ...
General criteria for accounting for expenses when taxing profits are provided for in paragraph 1 of Art. 252 of the Tax Code of the Russian Federation. In accordance with this rule, for the purpose of taxation of profits, the taxpayer has the right to reduce the income received by the amount of expenses incurred (except for the expenses specified in Article 270 of the Tax Code of the Russian Federation). At the same time, expenses are recognized as economically justified and documented expenses expressed in monetary form, which are made to carry out activities aimed at generating income.
Expenses, depending on their nature, as well as the conditions of implementation and areas of activity of the taxpayer, are divided into expenses related to production and sale, and non-operating expenses (clause 2 of article 252 of the Tax Code of the Russian Federation).
Subparagraph 40 of clause 1 of Art. 264 of the Tax Code of the Russian Federation refers to other expenses related to production and (or) sales, which may reduce income received by a taxpayer, payments for registration of rights to real estate and land, transactions with specified objects, payments for providing information on registered rights, payment for services of authorized bodies and specialized organizations for property valuation, preparation of documents for cadastral and technical registration (inventory) of real estate objects.
In addition, pp. 15 p. 1 of Art. 264 of the Tax Code of the Russian Federation allows you to take into account the costs of consulting and other similar services when taxing profits.
It should be noted that tax legislation does not specify the types of transactions or property items that are the subject of transactions, in the course of which the costs of an independent appraisal of objects can be taken into account when taxing profits. The norms of the Tax Code of the Russian Federation do not exclude the possibility of reducing taxable profit for expenses related to the assessment of a property object, and in cases where such an assessment is not mandatory in accordance with the law.
The available explanations of the specialists of the Ministry of Finance of Russia and tax authorities indicate that they take a position according to which the costs associated with expert judgment property, are taken into account in the formation of the tax base for income tax as other expenses, subject to their compliance with the provisions of paragraph 1 of Art. 252 of the Tax Code of the Russian Federation (letters of the Ministry of Finance of Russia dated 07.10.2010 N 03-03-06 / 2/173, dated 06.10.2009 N 03-03-06 / 1/649, Office of the Federal Tax Service in Moscow dated 20.12.2004 N 26- 12/83208).
Consequently, the possibility to take into account for the purposes of profit taxation the costs of appraising fixed assets in this case depends, in particular, on whether they can be recognized as economically justified and produced for the implementation of activities aimed at generating income. It should be borne in mind that these criteria are essentially evaluative and are determined depending on many circumstances that are important in a particular situation.
Note that regarding the economic feasibility of costs, the Constitutional Court of the Russian Federation, in its rulings dated 04.06.2007 N 366-O-P and dated 04.06.2007 N 320-O-P, indicated that the feasibility of the costs taken into account when calculating the tax base should be assessed taking into account the circumstances indicating the intentions of the taxpayer to obtain an economic effect as a result of a real entrepreneurial or other economic activity... Tax legislation does not use the concept of economic feasibility and does not regulate the procedure and conditions for conducting financial and economic activities, and therefore the feasibility of expenses that reduce the income received for tax purposes cannot be assessed in terms of their feasibility, rationality, efficiency or the result obtained.
Judicial practice emphasizes that within the meaning of Art. 252 of the Tax Code of the Russian Federation, the economic feasibility of the costs incurred by the taxpayer is determined not by the actually received income of the taxpayer in a specific tax period, but by the direction of such costs to receive income, as well as the specifics of the taxpayer's activities (resolution of the Federal Antimonopoly Service of the Central District of February 16, 2009 N A54-1345 / 2008-C8) ...
In a letter dated 06.07.2007 N 01-02-03 / 03-311, the Ministry of Finance of Russia also confirmed that the issue of assessing the effectiveness and feasibility of costs is under the jurisdiction of the taxpayer as a business entity. At the same time, according to the Ministry of Finance of Russia, the criterion of economic justification of expenses should be considered in conjunction with the provision of the fourth paragraph of clause 1 of Art. 252 of the Tax Code of the Russian Federation, according to which any costs are recognized as expenses, provided that they are made to carry out activities aimed at generating income. It is the presence of a connection between the expenses incurred and entrepreneurial activity the taxpayer is the main factor for recognizing the costs incurred as economically justified costs.
That is, if an organization can prove the objective orientation of expenses for generating income, it has the right to take such expenses into account when taxing profits.
In our opinion, in this case, the accounting by the taxpayer of the costs of appraising fixed assets is not unfounded. In accordance with Art. 6 of Law N 135-FZ legal entities have the right to have an appraiser evaluate any appraisal objects belonging to them on the grounds and conditions provided for by this federal law. The market price of an object is established for the purpose of its sale, in other words, to determine objective criteria for the formation of the contractual price, which, in our opinion, allows us to classify the assessment as an activity aimed at generating income. However, this should take into account the real intention of the organization to make a transaction with the object. In this regard, we believe that it is advisable for the organization to document preparation of the preparatory measures for the transaction, including the involvement of an independent appraiser, justifying their connection with the planned economic effect.
Of course, the emergence of disagreements with the tax authority on the legality of accounting for such expenses in this situation is not excluded. Note that in law enforcement practice there are examples of court support for the position of the taxpayer, including in cases where the tax authority justified the illegality of accounting for the cost of evaluating objects by the fact that such objects were not subsequently sold (see Resolutions of the Federal Antimonopoly Service of the Moscow District of March 17, 2009 No. -A40 / 1737-09, FAS of the Volga District of 01.08.2007 N A12-20527 / 06, decision of the Arbitration Court of the Khanty-Mansi Autonomous Okrug dated 11.03.2008 N A75-18 / 2008).
The texts of the documents mentioned in the experts' response can be found in the legal reference system
The validity period of such certificates is different. It all depends on the nature and purpose of the assessment. Usually the period is not less than 6 months, but in each specific case it can be more or less.
Market
Market value define companies so that the owner can sell the property, pledge, lease or contribute to the authorized capital. To do this, you need to know the market value of housing. It usually greatly exceeds the cadastral value.
Thanks to this information, the owner can adequately assess the value of the apartment. Putting it up for sale it is important to know the correct price otherwise the buyer will have to wait for years. Or, if you underestimate the price, you lose some of the possible profit.
Market valuations are often carried out by private companies. The final figure is influenced by:
- Layout.
- Number of rooms.
- Footage.
- Infrastructure.
- Availability of communications.
- Repair status.
Therefore, the final figure can be almost twice the cadastral value.
Attention! The market value certificate is valid for six months. The fact is that the real estate market is changing very quickly. Therefore, it is impossible to predict the adequate cost for more than six months.
Housing prices are constantly changing. In an unstable economy, it is impossible to predict the cost for more than 6 months.
Inventory
This type of assessment is carried out by BTI employees. This price is much lower than the market price., because the analysis takes into account:
- Footage.
- Availability of communications.
- The year the house was built.
Neither repairs nor infrastructure are of interest to employees. That is why the price is much lower.
It is issued on a special form. The service is paid (about 600 rubles). If the BTI has information on real estate appraisal, then the term for issuing a certificate is up to 10 working days. If you need to visit the apartment and carry out the assessment procedure itself, the time period can be long. It all depends on the workload of the specialists.
The validity of the certificate itself is unlimited... The date of issue is important. That is, if the certificate is taken to establish the size of the inheritance, then the certificate must be issued immediately after the death of the owner. Then the data in it will be relevant.
If a certificate is needed for bank employees or for privatization, then it must be received in the current year.
It does not have a clear expiration date.
Cadastral
Important! A cadastral valuation is needed to determine the rent for the land, the redemption amount. Conducted by government agencies.
Before the unified register of the USRN was put into operation, the amount of taxes for real estate was determined based on the book (inventory) value. For an apartment of 30 sq. m. citizens need to pay no more than 500 rubles.
With the introduction of the USRN civil servants plan to introduce tax calculation based on the cadastral value. It is higher than the balance sheet. Accordingly, the amount of tax will increase. But there are also pluses. With the introduction of such a register, the calculation will be made in the shortest possible time. And you can privatize or change the owner within 10 days.
Until such innovations come into force, the calculation is made at the book price. The term of the cadastral valuation can be specified differently. But in the legislation the maximum period is determined - 5 years.
Validity of the assessment of the market value of housing for a mortgage
When registering mortgage loan you will have to provide the bank with a certificate of the market value of the apartment. It is necessary so that the bank can calculate the loan amount. And if the terms of the contract are not met, the apartment will be sold at auction, setting the cost based on this amount.
The legislation establishes the general period of validity of the certificate equal to 6 months. After this period, the price for the apartment is not recommended, so the bank, most likely, will not accept such a certificate.
Often the assessment is carried out immediately before the execution of the contract, therefore, its term is unimportant. The assessment is carried out by the borrower at his own expense. To ensure the security of the transaction and to ensure that the bank accepts the certificate, it is recommended to conduct an assessment in the companies that cooperate with the bank.
How long does it take to analyze apartment prices?
Because the procedure for determining the market price is carried out by private companies, it is difficult to name a specific period of time. A specialist needs to study the situation on the real estate market, infrastructure, condition of the house and the apartment itself.
It all depends on how long the procedure will take. Usually the process does not take more than two days.... But in different cases time can be increased. To know the exact time frame, you need to contact the selected company.
Reference! The term of the assessment depends on the type of procedure, complexity, the company that will perform the work and on the specialist himself.
The market price certificate becomes invalid after 6 months, the inventory certificate does not have a specific validity period, and the cadastral certificate becomes invalid after 5 years. For mortgages, as well as for other purposes, the certificate will be valid for six months.
Question: On the economic justification of the validity period of the report on the appraisal of the appraisal object provided for by the legislation of the Russian Federation on appraisal activities.
Answer: The Department of Innovative Development and Corporate Governance of the Ministry of Economic Development of the Russian Federation considered an appeal on the application of the provisions of clause 26 of the Federal Assessment Standard "General concepts of assessment, approaches to assessment and requirements for assessing (FSO N 1)", approved by Order of the Ministry of Economic Development of Russia dated 20.07.2007 N 256 (hereinafter - FSO N 1), and reports the following.
According to clause 26, the total value of the appraisal item specified in the appraisal report may be recognized as recommended for the purpose of concluding a transaction with appraisal items if no more than 6 months.
Thus, in accordance with the legislation of the Russian Federation on appraisal activities, the appraisal report must be up-to-date either on the date of the transaction with the subject of appraisal, or on the date of submission of the public offer.
Additionally, we inform you that in accordance with clause 6, section. II and sect. III FSO N 1 the appraiser determines the total cost by calculating the value of the appraisal object when using approaches to appraisal and justified by the appraiser to agree (generalize) the results obtained within the framework of applying various approaches to appraisal.
When preparing the appraisal report, the appraiser studies the quantitative and qualitative characteristics of the appraisal object, collects information that is essential for determining the value of the appraisal object by the approaches and methods that, based on his judgment, should be applied in the appraisal, including: information on political, economic, social and environmental and other factors affecting the value of the appraised property, and information on supply and demand in the market to which the appraised subject belongs, including information on factors affecting supply and demand, quantitative and qualitative characteristics of these factors.
The information provided in the appraisal report should enable the user of the appraisal report to draw correct conclusions about the characteristics investigated by the appraiser when conducting the appraisal and determining the final value of the appraisal object, and make informed decisions based on these conclusions.
It should be noted that both after the date of assessment and after the date of drawing up the report, events may occur that have a significant impact on the final value of the market value of the subject of assessment, and an increase in the period of use of the assessment report leads to an increase in the risks of making unreasonable decisions, in particular, from the state. ...
Taking into account the foregoing, the validity period of the valuation report provided for by the legislation of the Russian Federation on appraisal activities seems to be economically justified.
Deputy Director of the Department for Innovative Development and Corporate Governance
D. V. SKRIPICHNIKOV
When it is planned to sell an element of fixed assets or the business as a whole, the owners of the company use the services of independent professional firms to determine the price of the object of the future transaction in the current market environment. Professional consultations and an analyst are expensive services, so the client company is interested in at least two questions: the validity period of the market value assessment and the ability to include the expenses incurred in the calculation of income tax.
The legal obligation of organizations planning to sell fixed assets to conduct an independent assessment of their value has not been established. However, most firms prefer to incur additional costs, but have an official document that will fulfill the role of protection against claims of the state and counterparties.
When a company has a conclusion on the market value, it has something to answer the questions of the tax authorities. The latter check the transactions being made and if they find that the value of the fixed asset was 20% or more below the market average, they can bring the company to justice.
Likewise, a business valuation can be used to sell an enterprise as a whole. However, there are other reasons for its implementation: the need to obtain information about the competitiveness of a commercial structure, ways to reduce the fiscal burden, about the possibilities of reorganization, etc.
How long is the Market Valuation Report valid?
According to the provisions of 135-FZ, the total size of the market or other price indicated in the report independent appraisers, is recognized as reliable and recommended for use in the sale and purchase if the parties acted in strict accordance with Russian law. Contestation of the indicated value is possible in court.
The report, drawn up by independent appraisers, contains a mandatory requisite - the date as of which the information provided is relevant. The “shelf life” of this document as such is not limited by regulation. Only some of the data written in it may become outdated.
According to the provisions of clause 1 of the FSO1, the market price prescribed in the report is relevant for six months from the date of drawing up a document or publishing an offer for the sale of an object of fixed assets or business. The legislation notes that an exception to this rule is recognized cadastral value: it has no statute of limitations.
The existing legal practice shows that the courts do not always interpret the expiration of a six-month period as an indicator of irrelevance and unreliability of data. In order to prove his case in the event of a dispute between the parties, the owner of the fixed asset needs to initiate a judicial procedure for considering the case.
In what cases can the costs of the assessment be included in the composition of expenses for taxation?
The current legislation states that a company or individual entrepreneur has the right to include in the composition of expenses for calculating income tax expenses that are not named in Art. 270 of the Tax Code of the Russian Federation, if they meet the following criteria:
- actual payment;
- economic justification;
- availability of supporting primary documents.
Costs associated with the involvement of independent appraisers are generally classified as other costs associated with production or sale. They reduce the fiscal base when calculating income taxes.
The legislation does not restrict the rights of companies and individual entrepreneurs to order an independent assessment, even if it is not mandatory, but voluntary. Regardless of the characteristics of the object, the value of which is determined, and the transaction itself, the costs will reduce the tax base.
The period of validity of the report on the assessment of market value is not decisive when including the costs of specialist services in the calculation of taxes. If the conclusions are no longer relevant, the fixed asset has not been sold, but the organization will be able to prove that its expenses were aimed at generating income (albeit in fact this did not happen), it will be able to reduce the fiscal base for costs confirmed by primary documents.
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Real estate appraisal is carried out taking into account the fact that any real estate is a certain commodity. The appraisal of the value of real estate should be carried out as competently and carefully as possible. As a result, the customer will receive qualified report on the market value of real estate based on real estate appraisal.
- Transactions related to the purchase or sale;
- Rental;
- Ransom;
- Real estate section;
- Pledge;
- Obtaining a mortgage loan;
- Other types of lending;
- Inheritance;
- Determination of the damage caused in the event of various accidents and disasters;
- Involving her in various business projects;
- When conducting legal proceedings;
- With insurance;
This is the determination of the potential market value of all real estate properties. The very concept of "real estate" is strictly defined by the provisions of the Civil Code of Russia. Real estate includes land and all objects located on it: (subsoil, reservoirs, forests, already erected buildings and structures under construction).
Real estate appraisal is not an arbitrary, but an orderly process that consists of several main stages. Initially, the appraiser establishes the subject of appraisal directly, examines its qualitative characteristics, documentation and sets the date for the appraisal process. After acquainting the client with the preliminary results, an assessment plan is created and an agreement is concluded. At the third stage, the appraiser collects all the necessary information about the appraised property, as well as - in order to clarify and compare the cost - similar real estate objects. After checking the received data and confirming them, the stage of assessing a particular object begins. At the final stage, the expert appraiser draws up a report on the value of the object based on the findings and results.
What documents do you need to provide to an appraiser for real estate appraisal?
During the assessment process, the assessor will need some obligatory documents, which reflect the main physical and legal parameters of the property subject to assessment. The number and type of documentation depends on the type of the assessed object. The main list includes:
- Certificate of ownership;
- Employment agreement;
- Rent;
- All data on encumbrances;
- Book value;
- Utility bills;
- Technical certificate;
- Explication;
- Certificate from the BTI;
- Floor plan;
- Redevelopment permission (if any);
The assessment uses three main approaches: cost, income and comparative. The final result of the appraisal is not an arithmetic mean, but the result of logical reasoning and a thoughtful approach of a professional to the appraisal process, as a result of which the real market value of the appraised object is derived. Thus, the calculation results in each of the approaches can be influenced by various factors. So, for example, within costly approach the value of the object will be influenced by the degree of deterioration of the structural elements of the real estate object, both physical and functional. The result of the income approach is greatly influenced by the ability of the object to generate income, and, consequently, its location. V comparative approach The final value of the cost may be influenced by the presence / absence of certain encumbrances or improvements that are absent in analogue objects.
How much does a real estate appraisal cost and what does this cost depend on? What are the terms of real estate appraisal?
Do not forget that real estate appraisal is a laborious and complex process that will require from an expert not only professional, but also legal knowledge. Therefore, the cost and timing of the assessment is least of all dependent on the value of the appraised object. The main points that are taken into account when paying an appraiser are the labor costs of a specialist, the cost of which is measured in man-hours and has a fixed rate. It is on the basis of this rate that the final price of the provided service is determined: starting from 3000 rubles and ending with several tens or even hundreds of thousands of rubles.
How long is the real estate appraisal report valid?
Its validity period is 6 months. This term limitation is primarily due to the constant change in the market value of real estate, which entirely depends not only on economic, financial and production factors, but also on government policy.
Despite the fact that the cost of appraisal services is relatively high, experts do not recommend evaluating your property on your own. Of course, you can use the recommendation articles found on the Internet or newspaper ads, however, the result is unlikely to be objective. In addition, quite often a transaction requires an appraisal document that is legally binding and provided only by a qualified specialist.
What does a real estate appraisal report look like and what does it include?
The assessment report is a standard document that must fully comply with the requirements of the law governing appraisal activity (135-FZ) and Federal Valuation Standards (FSO)... It contains all the information and information obtained during the assessment process, confirming the correctness of the results reflected in the report. Also, the report must indicate the date of the assessment. Attached to the report are certificates of membership of the appraisers who have carried out the appraisal of the property in the Self-Regulatory Organizations of Appraisers, their insurance policies, as well as documents confirming their education in the field of appraisal.
