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If an organization for determining market value The object of fixed assets intended for sale attracts an independent appraiser, how long can you refer to this conclusion and is it possible to take into account the costs of assessment in taxation, if the estimated object is not sold? Experts of legal consulting service guaranteed Pavel Erin and Elena Melnikova.
To determine the market value of the established funds planned for the implementation of fixed assets, the organization attracts an independent appraiser, but it is not always possible to implement the estimated fundamental. What is the validity of the appraiser's report, for which time you can refer to it when determining the market value? Is it possible to take into account the income tax costs incurred by the cost of assessing the fixed assessment not implemented during the tax period?
Article 12 of the Federal Law of 29.07.1998 N 135-FZ "On appraisal activities in Russian Federation"(Next - Law N 135-FZ) It is envisaged that the total value of the market or other value of the assessment object specified in the report compiled on the grounds and in the manner provided by this federal law is recognized as reliable and recommended for the purpose of making a transaction with the object of assessment If in the manner prescribed by the legislation of the Russian Federation, or in court is not established otherwise.
The evaluator's report indicates the date, as of which the value of the estimation object is determined (part of the fourth of Art. 11 of the Law N 135-FZ, P.P. 5, 8 of the Federal Standard of Evaluation " General concepts Estimates, approaches and requirements for assessment (FSO N 1), approved by the Order of the Ministry of Economic Development of the Russian Federation of July 20, 2007 N 256, hereinafter - FSO N 1).
Evaluation legislation does not establish the validity of the evaluation report as such. At the same time, paragraph 26 of FSO N 1 provides that the total value of the market or other value of the assessment object, with the exception of the cadastral specified in the evaluation report, can be recognized as recommended for the purpose of making a transaction with the objects of the assessment, if from the date of evaluation report Until the date of the transaction with the object of assessment or the date of submission of the Public Offer passed no more than six months. Note that judicial practice does not consider the expiration of the specified six-month term as an unequivocal evidence of the nestness of information about the market value of the object contained in the evaluation report (the decision of the FAS of the Volga-Vyatka district from 07.11.2011 N F01-4554 / 11). In the event of a dispute about the reliability of the magnitude of the market value of the assessment object established in the report, including in connection with the other report on the assessment of the same object, the dispute may be considered in court (Article 13 of the Law N 135-FZ, the decision of the arbitration Court of Sverdlovsk region of 01.06.2012 No. A60-12493 / 2011).
It should be noted that the list of cases when the independent assessment of the object is mandatory, limited by law (Art. 8 of Law No. 135-FZ). By general rule The objects of fixed assets belonging to the right of ownership of a commercial organization, in connection with their alienation, are not subject to obligatory assessment. For tax purposes, the application in the transaction price recognized by the market may have a value when making transactions between interdependent persons (pp 1, 3 of article 105.3 of the Tax Code of the Russian Federation), however, in this case, tax legislation does not oblige the taxpayer to confirm the price of the transaction of the appraiser .
General criteria for accounting costs for income taxation are provided for by paragraph 1 of Art. 252 Tax Code. In accordance with this norm, in order to tax return, the taxpayer has the right to reduce the received income on the amount of costs (with the exception of the costs specified in Art. 270 of the Tax Code of the Russian Federation). At the same time, expenses are recognized as expressed in cash, the cost-effective and documented costs that are made to carry out activities aimed at obtaining income.
Expenditures, depending on their nature, as well as the conditions for the implementation and directions of the taxpayer, are divided into the costs associated with production and implementation, and non-deactive costs (paragraph 2 of Art. 252 of the Tax Code of the Russian Federation).
Subparagraph 40 p. 1 Art. 264 of the Tax Code of the Russian Federation refers to other expenses related to the production and (or) implementation to which the income received by the taxpayer can be reduced, payments for the registration of rights to immovable property and land, transactions with specified objects, payments for providing information on registered rights, Payment of services for authorized bodies and specialized assessment organizations for assessing property, making documents of cadastral and technical accounting (inventory) of real estate.
In addition, PP. 15 p. 1 Art. The 264 Tax Code of the Russian Federation makes it possible to take into account the costs of consulting and other similar services.
Note that tax legislation does not specify the types of transactions or objects that are the subject of transactions in which the costs of an independent assessment of facilities may be taken into account in income tax. The norms of the Tax Code of the Russian Federation do not exclude the possibility of reducing taxable income on the costs associated with the assessment of the property object, and in cases where such an assessment in accordance with the law is not mandatory.
The existing explanations of the specialists of the Ministry of Finance of Russia and the tax authorities indicate that they occupy a position according to which the costs associated with expert assessment Property is taken into account when forming a tax base for income tax as other expenses, subject to their compliance with the provisions of paragraph 1 of Art. 252 Tax Code of the Russian Federation (letters of the Ministry of Finance of Russia from 07.10.2010 No. 03-03-06 / 2/173, from 06.10.2009 No. 03-03-06 / 1/649, control of the Federal Tax Service for Moscow dated 20.12.2004 No. 26- 12/83208).
Consequently, the ability to take into account for the purposes of taxation of profit, the costs of assessing the facilities of fixed assets in the case under consideration depends, in particular, whether they can be recognized as economically justified and manufactured to carry out activities aimed at obtaining income. It should be borne in mind that these criteria are essentially estimated and are determined depending on many circumstances that are important in a specific situation.
It should be noted that the Constitutional Court of the Russian Federation in the definitions of 04.06.2007 N 320-O-P and dated 04.06.2007 N 320-O-P and dated 04.06.2007 N 320-O-P indicated that the validity of the costs accounted for when calculating the tax base should be assessed with regard to circumstances indicating the intentions of the taxpayer to obtain an economic effect as a result of 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 the conduct of financial and economic activities, and therefore the validity of expenses that reduce the obtained income for tax purposes cannot be estimated from the point of view of their feasibility, rationality, efficiency or result.
Judicial practice emphasizes that in the meaning of Art. 252 Tax Code of the Russian Federation The economic validity of the costs incurred by the taxpayer is determined by the taxpayer's actually received income in a particular tax period, but the focus of such costs to receive income, as well as the specifics of the taxpayer's activities (Resolution of the Central District of 16.02.2009 No. A54-1345 / 2008-C8) .
In a letter from 06.07.2007 No. 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 underway to the taxpayer as a subject of entrepreneurial activity. At the same time, according to the Ministry of Finance of Russia, the criterion for economic justification of expenses should be considered in relationship with the position of the fourth paragraph of paragraph 1 of Art. 252 of the Tax Code of the Russian Federation, in accordance with the expenses, any costs are recognized, provided that they are made to carry out activities aimed at receiving income. It is the presence of communication of the costs with business activities The taxpayer is the main factor for recognizing the costs produced by economically justified expenses.
That is, if the organization can prove the objective orientation of income expenditures, it has the right to take into account such expenses for income tax.
In our opinion, in this case, the taxpayer of expenses for assessing the facilities of fixed assets is unfair. In accordance with Art. 6 Law N 135-FZ legal entities They have the right to assess the assessment of any objects belonging to them on the grounds and conditions provided for by this federal law. The market price of the object is established for the purposes of its sale, in other words, to determine the objective criteria for the formation of the contract price, which, in our opinion, makes it possible to attribute the assessment of activities aimed at obtaining income. However, this should take into account the real intention of the organization to make a deal with the object. In this regard, as we believe, conducting preparatory activities to the transaction, including attracting an independent appraiser, it is advisable to confirm the organization to be appropriate with the rationale for their connection with the planned economic effect.
Of course, the emergence of disagreements with the tax authority on the legality of the accounting of such expenses in this situation is not excluded. It should be noted that in law enforcement practices there are examples of the court support by the position of the taxpayer, including in cases where the inconsistency of expenses for estimating facilities, the tax authority justified the fact that such objects were subsequently not implemented (see Resolutions of the Moscow District Facre of 17.03.2009 N -A40 / 1737-09, FAS of the Volga District of 01.08.2007 N A12-20527 / 06, Decision of the Arbitration Court of the Khanty-Mansiysk AO of 11.03.2008 N A75-18 / 2008).
With the texts of the documents mentioned in the response of experts, can be found in the reference legal system.
The term of such certificates is different. It all depends on the nature and purpose of the assessment. Usually the term is not less than 6 months, but in each particular case it may be greater or less.
Market
Market value determine the companies so the owner can sell real estate, Rent or deposit in the authorized capital. To do this, you need to know the market value of housing. Usually it greatly exceeds the cadastral value.
Thanks to such information, the owner can adequately appreciate the cost of the apartment. Exposing her for sale it is important to know the right price.otherwise the buyer will have to wait for years. Or, if you undertake the price, lose some of the possible profits.
Market assessment is often carried out by private companies. The ultimate digit affects:
- Planning.
- Number of rooms.
- Metrah.
- Infrastructure.
- Availability of communications.
- Repair state.
Therefore, the ultimate digit can be almost twice as much cadastral value.
Attention! The certificate of market value is valid for six months. The fact is that the real estate wound changes very quickly. Therefore, it is impossible to predict adequate cost more than half a year.
Housing prices are constantly changing. In the conditions of an unstable economy, to predict the cost of more than 6 months is impossible.
Inventory
This type of evaluation is made by BTI staff. This price is much lower than the marketbecause when analyzing is taken into account:
- Metrah.
- Availability of communications.
- Year of construction at home.
Neither repair nor infrastructure is interested in 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 about real estate evaluation, then the deadline for issuing references is up to 10 working days. If you need to visit the apartment and spend the assessment procedure itself - the time segment can be large. It all depends on the workload of specialists.
Duration of the certificate itself is unlimited. Important is the date of issue. That is, if the certificate is taken to establish the size of the inheritance, the reference must be issued immediately after the death of the owner. Then the data in it will be relevant.
If the certificate is needed for banking workers or for privatization, it must be obtained in the current year.
It does not have a clear term of action.
Cadastral
Important! Cadastral assessment is necessary to determine the rent for land, redemption amount. Conducted by government agencies.
Prior to the commissioning of a single registry EGRN, the amount of real estate taxes were determined on the basis of the balance sheet (inventory) value. For an apartment in 30 square meters. m. Pay citizens need no more than 500 rubles.
With the introduction of EGRN government employees plan to introduce the calculation of the amount of tax Based on cadastral value. It is higher than the balance sheet. Accordingly, the tax amount will increase. But there are advantages. With the introduction of such a registry, the calculation will be made in the shortest possible time. And to privatize or change the owner is possible within 10 days.
So far, such innovations in force have entered into force, the calculation is made in the book price. The cadastral valuation period may be specified different. But the legislation defines the maximum period - 5 years.
The validity period of the market value of housing for mortgage
When making a mortgage loan, you will have to submit a bank to a certificate of market value of the apartment. It is necessary that the bank can calculate the amount of the loan. And if the terms of the contract fails are not fulfilled, the apartment will be implemented with bidding, establishing the cost, based on this amount.
The legislation establishes a total period of a certificate equal to 6 months. After this period, the price of an apartment is not recommended, therefore the bank is likely to not accept such a certificate.
Often the assessment is carried out immediately before registration of the contract, Therefore, it is not important. The assessment is carried out by a borrower for own funds. To ensure the security of the transaction and to ensure that the bank will receive a certificate, it is recommended to assess the companies that cooperate with the Bank.
How much time is the procedure for analyzing apartments?
As the procedure for clarifying the market price is carried out by private companies, Specific period of time is difficult to call. Specialist needs to explore the situation in the real estate market, infrastructure, condition of the house and the apartment itself.
It depends on all this, how much time will take the procedure. Typically, the process does not take more than two days. But in different cases the time can be increased. To know exactly the temporary framework, you need to contact the selected company.
Reference! The evaluation period depends on the type of procedure, complexity, the company that will perform work and from the specialist itself.
A certificate of the market price becomes invalid after 6 months, inventory - does not have a certain period of action, cadastral - 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 draft law on the evaluation of the valuation report on the assessment of the assessment object.
Answer: The Department of Innovative Development and Corporate Governance of the Ministry of Economic Development of Russia considered an appeal on the application of the provisions of the Federal Standard Standard of the Federal Assessment "General notion concepts, approaches to assessment and evaluation requirements (FSO N 1)", approved by the Order of the Ministry of Economic Development of Russia from 20.07.2007 N 256 (hereinafter - FSO N 1), and reports the following.
According to clause 26, the value of the assessment object specified in the evaluation report may be recognized as recommended for the purpose of making a transaction with the objects of the assessment, if the date of the evaluation report is drawn up to the date of the transaction with the object of assessment or the date of submission of the Public Offer. 6 months.
Thus, in accordance with the legislation of the Russian Federation on appraisal activities, the evaluation report should be relevant either at the date of the transaction with the assessment object, or at the date of submission of the Public Offer.
Additionally, we report that according to paragraph 6 of the section. II and sec. III FSO N 1 The appraiser determines the final cost by calculating the value of the assessment object when using approaches to the assessment and a substantiated approval appraiser (generalization) of the results obtained as part of the application of various assessment approaches.
In preparing an assessment report, the appraiser studies the quantitative and qualitative characteristics of the assessment object, collects information substantial to determine the value of the object of assessment of those approaches and methods, which, on the basis of its judgment, should be applied during the assessment, including: information on political, economic, Social and environmental and other factors affecting the value of the assessment object, and information on demand and proposal on the market, to which the assessment object relates, including information on the factors affecting the demand and supply, quantitative and qualitative characteristics of these factors.
The information provided in the assessment report should allow the user to make the right conclusions on the characteristics that studied the appraiser during the assessment and determining the total value of the value of the assessment object, and to accept substantive decisions based on these conclusions.
It should be noted that both after the date of the assessment and after the reporting date, events may occur that have a significant impact on the final value of the market value of the assessment object, and an increase in the use of the evaluation report leads to an increase in the risks of adopting unreasonable decisions, in particular, from the state .
Taking into account the statutory activities provided for by the legislation of the Russian Federation, the validity period of the evaluation report seems to be economically justified.
Deputy Director of the Department of Innovation Development and Corporate Governance
D.V. Skripichnikov
When it is planned to sell the element of fixed assets or business in general, the owners of the company use the services of independent professionals to determine the price of the facility of the future transaction under the conditions of the current conjuncture. Consultations of specialists and analytics are expensive services, so the customer's company is interested in at least two questions: the validity of the market value assessment and the ability to include spent spending on the calculation of income tax.
The legislative responsibility of organizations planning the sale of fixed assets, to conduct an independent assessment of their value, is not established. However, most firms prefer to incur additional waste, but to have an official document that will fulfill the role of protection against claims of the state and counterparties.
When the company has a conclusion about market value, she has something to answer questions of tax authorities. The latter check the transactions performed and if they discover that the cost of the fixed assessment was lower than the average market by 20% or more, can attract a firm to justice.
Similarly, business assessment can be used for the sale of an enterprise as a whole. However, there are other reasons for its holding: the need to obtain information on the competitiveness of the commercial structure, ways to reduce fiscal load, on the possibilities of reorganization, etc.
How much is a market value assessment report?
According to the provisions of 135-ФЗ, the final size of the market or other price specified in the report of independent appraisers is recognized as reliable and recommended for use during purchase and sale, if the parties acted in strict accordance with Russian legislation. The challenge of the designated cost is possible in court.
The report compiled by independent appraisers contains a mandatory props - date, as of which the information provided is relevant. The "shelf life" of this document as such is not limited to regulatory acts. Only separate data prescribed in it can be outraged.
According to the provisions of the FSO1, market priceThe report written in the report is relevant for half a year from the date of the document or publish the offer to sell the facility of fixed assets or business. The legislation notes that the exception to this is recognized as cadastral value: It does not have the statute of limitations.
The current legal practice shows that the courts do not always interpret the expiration of the semi-annual period as an indicator of irrelevance and inencleness of data. To prove its rightness in the event of a dispute of the parties, the owner of the main means must be initiated by the judicial procedure for consideration of the case.
In which cases, spending on the assessment can be included in the cost of taxation
The current legislation states that the company or IP has the right to include expenses for the calculation of waste tax, not named in Art. 270 NK RF, if they comply with the following criteria:
- actual payment;
- economic justification;
- the presence of confirming primary documents.
The costs associated with the involvement of independent appraisers, as a general rule, refer to the category of other expenses related to production or sale. They reduce the fiscal base when calculating income tax.
The legislation does not limit the rights of companies and IP to order an independent assessment, even if it is not required, but voluntarily. Regardless of the characteristics of the object, the cost of which is determined by the transaction itself, the costs will reduce the tax base.
The deadline for the market value assessment report does not have a determining value when the costs of specialist services in the calculation of taxes are incorporated. If the conclusions are no longer relevant, the mainstream is not sold, but organizations will manage to prove that its spending were aimed at receiving income (even if it did not happen), it will be able to reduce the fiscal base for costs confirmed by primary documents.
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Evaluation of real estate objects it is carried out with the fact that any real estate is a specific product. The assessment of the value of real estate should be made as well as correctly and weighed. As a result, the customer will receive a qualified report on the market value of real estate on the basis of real estate assessment.
- Operations related to buying or selling;
- Rental;
- Redemption;
- Section of real estate;
- Pledge;
- Obtaining a loan for mortgage;
- Other types of lending;
- Entry into the inheritance;
- Determination of damage caused in case of various accidents and disasters;
- Involving it in various business projects;
- When conducting legal proceedings;
- When insuring;
This is determining the potential market value of all real estate objects. The very concept of "real estate" is strictly determined by the provisions of the Civil Code of Russia. Real Estate belongs to the Earth and all objects located on it: (subsoil, reservoirs, forests, already erected buildings and in the process of building construction).
Real estate assessment is not an arbitrary, but an ordered process that consists of several main stages. Initially, the appraiser establishes directly the subject of the assessment, studies its qualitative characteristics, documentation and assigns the date of the evaluation process. After familiarizing the client with 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 estimated facility, and also - in order to clarify and compare the cost - similar real estate objects. After checking the data obtained and their confirmation, the step of evaluating a particular object comes directly. At the final stage, an appraiser expert is a report on the value of the object on the basis of the obtained conclusions and results.
What documents do you need to provide an appraiser to assess real estate?
In the process of evaluating the expert, some mandatory documents will be needed, which reflect the main physical and legal parameters of the real estate object. The number and type of documentation depends on the type of object being evaluated. The main list can be attributed to:
- Certificate of ownership;
- Hiring agreement;
- Rental;
- All data on encumbrances;
- Book value;
- Utility payments;
- Technical certificate;
- Explication;
- Help from BTI;
- Floor plan;
- Resolution of redevelopment (if such occurred);
In assessing, three main approaches are used: costly, profitable and comparative. The final rating result is not an arithmetic average, but the result of the logical reasoning and a thoughtful approach of professional to the assessment process, as a result of which the real market value of the estimated object is derived. Thus, various factors can affect the results of the calculation in each approach. So, for example, within cost approach The cost of the object will influence the degree of wear of the structural elements of the real estate object of both physical and functional. The result of an income approach has a great influence of the object's ability to generate income, and therefore its location. IN comparative approach The impact on the final value of the cost may have / absence of certain encumbrances or improvements absent from objects-analogs.
How much is the real estate assessment and from which this cost depends? What are the timing of real estate assessment?
Do not forget that real estate assessment is a time-consuming and complex process that will require expert not only professional, but also legal knowledge. Therefore, the cost and timing of the assessment is least dependent on the value of the estimated object. Highlights that are taken into account when paying the remover, these are labor costs of a specialist, the cost of which is measured in man-hours and has a fixed rate. It is based on this rate and the final price of the service provided is determined: ranging from 3000 rubles and ending with several tens or even hundreds of thousands of rubles.
How much is the real estate evaluation report?
The term of its action is 6 months. Such a limitation is due, first of all, with a constant change in the market value of real estate objects, which is entirely depends on not only from economic, financial and production factors, but also from state policy.
Despite the fact that the cost of the appraiser services is relatively high, experts do not recommend evaluating their real estate independently. Of course, you can use the recommendental articles found on the Internet or ads' newspapers, however, the result obtained is unlikely to be objective. In addition, quite often, when carrying out a transaction, an appraisal document is required, which has legal force and provided only by a qualified specialist.
What does it look like and what includes a real estate evaluation report?
The evaluation report is a standard document that must fully comply with the requirements of the Law Regulatory Evaluation activities (135-FZ) and federal evaluation standards (FSO). It contains all information and information obtained in the evaluation process confirming the correctness of the results reflected in the report. Also in the report necessarily indicates the date of the assessment. The reporting certificates for the membership of the appraisers who have evaluated the real estate facility, in self-regulating appraisers, their insurance policies, as well as documents on obtaining education in the field of evaluation are applied.
