Capitalization of property from a new lessee in the event of transfer of leasing rights to him

We analyze the mistakes often made when transferring rights under financial lease (leasing) agreements

Imagine that you are the owner of a company or individual entrepreneur and you urgently need to buy equipment, vehicles or special equipment, but there is not enough money to pay for the entire purchase at once. Which exit? Take advantage of leasing services.

This system works like this: on your instructions, a leasing company buys, say, a car for itself, and then leases it to you for five years. In this case, the owner of the car is the leasing company ( lessor ). And you become a lessee and make leasing payments during the entire term of the contract. At the end, you make the so-called redemption payment , and only after that the ownership of the car passes to you.

Leasing (from the English lease - to rent out) is a type of financial services, the essence of which is to finance the acquisition of fixed assets through the purchase by the lessor company of property from the supplier and transferring it for a long-term lease to the client-lessee (legal entity) with subsequent purchase.

Myths about leasing

It would seem that everything is simple, but this is only at first glance. In practice, entrepreneurs often have a distorted understanding of the essence of leasing relations. And this causes many problems, including bringing them to vicarious liability.

Since we are talking about rent (leasing is also called financial lease), many businessmen perceive leasing payments exclusively as rental payments. They reason like this: we temporarily use the property and pay for it, and thus the legal relationship ends.

This impression is strengthened by the fact that in the event of early termination of the leasing agreement, the property is returned to the lessor without payment of any compensation to the lessee. And it seems logical! Imagine that you rented an office for a year, used it for six months, and then were forced to urgently move out. It wouldn’t even occur to you to demand the landlord to return the money previously paid, would it?

But drawing an analogy between a leasing agreement and a rental agreement is fundamentally wrong, and we will further explain why.

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When the money runs out

Let’s complicate the task by adding a new input to leasing - bankruptcy.

The company operated for, say, three years, and then the business went downhill, the money ran out, and there was nothing to pay lease payments. Our lessee turns into Bankrupt, and two options are open to him.

First . Simply terminate the contract and return the car to the lessor (we emphasize once again - without counter-compensation).

The second way is to assign the rights under the leasing agreement to a third party. We will call this party the Buyer or New Lessee.

What happens in the second option? The bankrupt transfers the rights to the Buyer, as a rule, for a nominal fee - 1,000 rubles. The buyer picks up the banner that has fallen from the hands of the Bankrupt and pays the lessor the remaining lease payments and the redemption payment, after which he receives ownership of the car. Naturally, with this scheme, the Buyer will spend much less money than when purchasing similar used property on the market.

It seems that, from the point of view of the Bankrupt, there is no difference - in both cases, he loses the opportunity to use the property and does not receive any money. For him, termination of the contract is equal to the assignment of rights. So why not please some good person? Let him drive in my Mercedes!

As a result, the Bankrupt gets rid of leasing debts, the Lessor receives his money, and the Buyer gets his property. Is everyone happy? No matter how it is!

The idyll is disrupted by an evil man called the Bankruptcy Manager. He comes and begins to challenge transactions in order to return the Bankrupt's disposed property and replenish the bankruptcy estate.

This is where it turns out that the everyday logic of entrepreneurs is at odds with the logic of the law and that leasing payments hide more complex legal relationships than it seemed at first. During the bankruptcy process, the transaction for the assignment of rights under the leasing agreement can be challenged and the market value of these same rights . Request something? Let's explain now.

Market value of rights

When a lessee makes lease payments, he is not just paying for the temporary use of a car. He has counter-rights to reclaim the car from the lessor. In other words, the more the lessee pays, the closer the car is to becoming his property. And accordingly, the more paid, the higher the value of the rights of claim against the lessor. And when you assign rights to another person, you need to do this not for 1,000 rubles, but at market value .

How to calculate this cost? There are special formulas for this, but we will not burden you with unnecessary details, but will try to explain everything simply.

Imagine that you have leased a vehicle worth 10 million rubles. The term of the leasing agreement is 5 years. For three years you actively used the equipment and carefully paid 2 million rubles a year, and then - bang! - went bankrupt. And they decided to assign the rights. To do this, you need to determine their cost. This is quite easy to do.

Let’s assume that three years after the start of the leasing agreement, the real market value of the equipment, taking into account wear and tear, fell to 7 million rubles. This is on the one hand. On the other hand, you have already paid 6 million rubles. out of ten, and the debt to the lessor is now only 4 million. This difference between seven million and four, that is, 3 million rubles, is the very market value of the rights that the Bankrupt is supposed to pay.

And so that you don’t think that all this is some kind of theorizing, we will give a few examples.

What is a leasing transaction?

The concept of a leasing transaction is described in Article 665 of the Civil Code of the Russian Federation.
Under a financial lease agreement, a leasing company acquires ownership of property from the seller and transfers this object for use to the client for a specific period. The subject of leasing can be any non-consumable things: transport, equipment, premises, etc. The rights to the property remain with the owner, that is, with the leasing company. The client (lessee) only has the right to own and use the property, but cannot completely dispose of it, for example, sell the property.

The leasing agreement may also provide for the transfer of ownership to the client (lessee).

Case No. 1. You can’t get away with just one ruble

Valid in 2022, place of action: the Fourteenth Arbitration Court of Appeal in Vologda. The characters are the debtor LLC Remstroynovatsiya and the buyer IP Zinoviev. The essence of the case is a claim to invalidate the agreement on the assignment of rights concluded between the LLC and the individual entrepreneur, and the application of the consequences of invalidity in the form of collecting 2,300,000 rubles from Mr. Zinoviev.

Everything was as we said. In 2015, Remstroynovatsiya LLC entered into an agreement with VEB-Leasing JSC, under which it received a KamAZ vehicle with a loader crane. In the same year, the rights and obligations under this agreement were assigned to IP Zinoviev for... that's right!.. 1,000 rubles.

In April 2022, Remstroynovatsiya LLC went bankrupt and bankruptcy proceedings were opened against it. The bankruptcy trustee challenged the deal, and in September the court of first instance declared it invalid.

IP Zinoviev did not agree with this decision and filed an appeal. The main arguments of his complaint were that the bankruptcy trustee did not prove the fact that at the time of the transaction the entrepreneur could have known about the possible harm to the creditors of Remstroynovatsiya LLC.

Let's look at this in more detail. Often the Buyer’s awareness of the purpose of the transaction is proven as follows: if the transaction price is clearly not market, then a conscientious and prudent counterparty should have a suspicion that not everything is in order with the transaction. And then it’s better to avoid the deal. If the counterparty did not do this, then the court will consider that he understood everything about the transaction and simply decided to take advantage of the situation.

IP Zinoviev obviously believed that the rights assigned to him by Remstroynovatsiya were worth nothing and that therefore the price of 1,000 rubles could be considered quite adequate. It is not without reason that he emphasized in his complaint that at the time of the contested transaction, the redemption price was not paid by Remstroynovatsiya and that the LLC was not the owner of the vehicle, but a lessee under a leasing agreement.

“The comrade doesn’t understand,” the court said in response. Based on the results of the forensic examination, it was established that the market value of the assigned rights was - just a minute! — 2,300,000 rubles, that is, many times exceeded the cost specified in the agreement between the individual entrepreneur and the LLC.

Worse, Zinoviev, it seems, did not even pay this unfortunate thousand. “...The court was not presented with adequate evidence of the actual transfer of funds to the debtor under the agreement...” And here you have a transaction with unequal counter-fulfillment of obligations, which also falls within the three-year period preceding bankruptcy. The damage to creditors is obvious.

We have already talked about awareness (the price of rights 2,300 times lower than the market should have caused concern for the individual entrepreneur, but did not). And the intent to cause damage is proven by the fact that the transaction was made in the presence of signs of insolvency of the LLC. On the day of the transactions, the debtor had unfulfilled obligations to other creditors, including a debt to the Federal Tax Service for 32.16 million rubles. Checkmate! The appeal was left unsatisfied. Receive 2.3 million rubles from an individual entrepreneur.

Case No. 2. Let's take money

But here's another, more interesting thing. Validity period: 2013–2018. Venue: Arbitration Court of the Volga District (Kazan). The actors are the debtor MUP "Ulyanovskdorremservice" and the buyer of the MBU "Dorremstroy".

In essence, this case is similar to the first one - the external manager demanded that the debtor’s transactions regarding the assignment of rights under leasing agreements be declared invalid and that the consequences of the invalidity of these transactions be applied.

However, compared to the previous case, there were two “complications”. First. The question arose about what the New Lessee should do if the transfer of rights transaction is declared invalid : pay money or return the property in kind?

And second. Can the bankruptcy trustee recover damages from the New Lessee if the value of the property has increased significantly during the proceedings?

Let's go in order. In November 2013, a monitoring procedure was introduced in relation to the Ulyanovskdorremservice municipal unitary enterprise, and in 2014, an external management procedure was introduced for a period of six months.

In March 2015, the external manager of the municipal unitary enterprise challenged several transactions of the enterprise with the Dorremstroy municipal budgetary institution. It was about the assignment of rights under leasing agreements concluded in 2013.

In this case, the rights were ceded, of course, not for 1,000 rubles, but still at a price below the market price. The total price of leasing agreements under which MUP assigned rights in favor of MBU was 77,564,326 rubles. At the time of concluding agreements on the assignment of rights and obligations, MUP had already paid most of the lease payments - 70%. At the same time, the value of the assigned rights was estimated at 8,031,118 rubles. To determine whether this was a lot or a little, an examination was required.

According to the expert’s conclusion, the market value of the assigned rights and obligations (release) under the leasing agreements at the time of the transaction was equal to 19,966,667 rubles, which is almost two and a half times more than what was paid under the agreement. Based on this, the court of first instance came to the conclusion that the disputed agreements on the assignment of rights are subject to recognition as invalid, since they were concluded with unequal counter-fulfillment of obligations. In general, everything is approximately the same as in case No. 1.

However, there was one important nuance in the determination of the Arbitration Court of the Ulyanovsk Region. Applying the consequences of the invalidity of agreements on the assignment of rights, the court of first instance considered that the New Lessee (Dorremstroy) must return to Ulyanovskdorremservis the subject of the leasing agreements - road equipment - in kind.

The Court of Appeal recognized as legitimate the conclusions of the trial court regarding the recognition of the disputed transactions as invalid and the return of the equipment in kind. But the cassation did not agree with the last point.

As is known, the result of challenging transactions should be the restoration of the situation that existed before these transactions were made. And usually this is what the debtor-entrepreneur insists on, saying that it is impossible to return the property, since I was not its owner. And there is no point in returning to the bankrupt the obligation to pay for the leased property, because he already has no money!

But in judicial practice there has already been an unambiguous approach to solving such problems. And in our case, the cassation followed the proven path: it sensibly decided that it was impossible to return the equipment, since it was not sold under the disputed agreement. Thus, it is not the equipment that is subject to return, but the market value of the rights received by the buyer. And in order to establish the exact amount to be recovered from the buyer, the dispute was sent for a new trial to the court of first instance.

Carrying out financial settlements when replacing the lessee

One of the main issues that arise when replacing a lessee is the implementation of monetary settlements between the parties to a tripartite agreement. As a rule, in practice, funds are transferred as follows:

1. If at the time of conclusion of the agreement the old lessee had an outstanding debt, the advance payment made by him, but not offset at the time of execution of the documents, is used to close the existing debt.
2. If the amount of the advance payment that has not been offset at the time of conclusion of the agreement exceeds the amount of debts the lessee has, the overpaid funds are returned to the payer by the lessor or transferred to account for future payments of the new lessee (the latter compensates the old lessee for the expenses incurred by him).

According to the general rule defined in paragraph 1 of Art. 249 of the Tax Code of the Russian Federation, the original lessee is obliged to pay income tax on all funds received by him when re-issuing a leasing agreement from a new lessee (with the exception of VAT included in this amount). In the event that the amount of the advance payment paid by the taxpayer does not completely cover the funds received from the new user of the leased asset, the resulting negative difference is recognized as a loss and must be taken into account when calculating the size of the tax base for the tax on profits received (letter of the Federal Tax Service “On Loss ..." dated 11/11/2011 No. ED-4-3/ [email protected] ).

When calculating the amount of depreciation, taxpayers who are lessees, in accordance with clause 2 of Art. 259.3 of the Tax Code of the Russian Federation, they can apply a special coefficient, the size of which cannot exceed 3. According to the position of the Ministry of Finance of the Russian Federation, set out in letter dated 03/09/2006 No. 03-03-04/1/202, when rehiring property received under lease, the new lessee also may apply the specified coefficient when determining the depreciation value (provided that the property will be taken into account on the balance sheet of its recipient).

Case number 2. The exchange rate is not your fault

During the new consideration, the Arbitration Court of the Ulyanovsk Region decided to reverse the execution of the previous determination and return the equipment (in kind) to Dorremstroy. And he, in turn, had to pay the MUP the actual value of the rights under the leasing agreements.

As we remember, the examination initially valued these rights at approximately 20 million rubles. However, during the new consideration, at the request of the bankruptcy trustee, a second forensic examination was ordered to assess the market value of the assigned rights and obligations under leasing agreements, since when preparing the previous report, the expert overestimated the balance of leasing payments and did not take into account the deposit.

In January 2022, clarifications were received from the bankruptcy trustee on the amount to be recovered from Dorremstroy in favor of the municipal unitary enterprise. The bankruptcy trustee demanded 64,361,115 rubles from the MBU, of which 33,612,306 rubles were the updated market value of the assigned rights and 30,748,809 rubles were losses that, according to the CU, arose in connection with the increase in the value of property for 2013–2016.

The court agreed with 33 million of the market value of the rights, but rejected 30 million of losses, stating that the increase in the value of the property expressed in rubles was due to the appreciation of the euro. This, according to the court, did not mean that the debtor incurred losses. In addition, the change in exchange rates could not be blamed on the buyer, Dorremstroy.

The result of the drama: the equipment in kind returned to the New Lessee (“Dorremstroy”), and the market value of the rights in the amount of over 33 million rubles was recovered from him in favor of the Bankrupt (MUP “Ulyanovskdorremservice”).

List of documents required for registration of assignment

The package of documents required to transfer all rights and obligations related to the leased property includes:

1. A lease agreement for leased property is concluded as an additional agreement to a previously signed agreement between the lessor and the old lessee.
2. The act of acceptance and transfer of property.
3. Documents attached to the leased object being transferred (for example, a technical equipment passport when transferring a car).
4. Documents of the enterprise acting as a new lessee:
   copies of the charter, certificates of state registration and tax registration;
5. minutes of a meeting of participants of a legal entity, containing a decision on the need to conclude a leasing transaction, etc.
6. Financial documents of the enterprise acting as a new lessee:
   financial statements,
7. information about current accounts,
8. information about existing loans and leasing obligations, etc.

How should you do it?

Having talked about how rights under leasing agreements should not be assigned, we must now explain how to do it correctly. After all, each contested transaction significantly increases the chances of subsequent involvement with a subsidiary (we wrote about this in detail here).

So, in order for a transaction on the assignment of rights to stand up in court, it must be completed in one of two ways.

1. First method.

The parties enter into a preliminary purchase and sale agreement (PSA). Under this agreement, the debtor promises to sell the car to the buyer at its current market price, for example, for 2 million rubles. Of these, the buyer must pay 1.5 million rubles to the debtor, 0.5 million rubles to the lessor (the balance of debt under the leasing agreement). Why is the contract preliminary? Because the debtor does not yet own the car, and he formally cannot sell what does not belong to him.

So, according to the preliminary contractual agreement, the buyer pays 0.5 million rubles to the lessor. After this, the property becomes the property of the debtor, and he, at the second rate, concludes the main DCT - for the same 2 million rubles, of which 0.5 million has already been paid to the lessor. The result is a pure sale of the property.

2. Second method.

The debtor does not sell the property, but the rights under the leasing agreement. The mechanics are basically the same: the car costs 2 million rubles, 1.5 million of which the buyer must pay to the debtor, and 0.5 million to the lessor. The difference is that after paying one and a half million to the debtor, the buyer becomes the owner of rights, not property. And he will be able to exercise his right (to take ownership of the car) only after paying the remaining 0.5 million to the lessor.

Legal basis

In general, all key legal frameworks are enshrined in the Federal Law “On Financial Lease (Leasing)” dated October 29, 1998 N 164-FZ.
In addition to it, there is Order of the Ministry of Finance of the Russian Federation dated February 17, 1997 N 15 (as amended on January 23, 2001) “On the reflection in accounting of transactions under a leasing agreement,” which determines the rules for accounting for leasing. Important: the latest document will expire on January 1, 2022 and will likely be replaced by an updated Order. Both documents enshrine all provisions at the legislative level, but do not provide a general understanding. For example, each of them mainly describes financial leasing operations, but there is practically no information about operational leasing.

Case number 3. The right approach

Validity period: 2016–2017. Venue: Third Arbitration Court of Appeal (Krasnoyarsk). The characters are the debtor IP Petrov and the buyer IP Shurov.

In 2016, individual entrepreneur Petrov was declared bankrupt and a procedure for the sale of property was introduced against him for a period of six months.

In 2022, the financial manager filed an application to invalidate the purchase and sale agreements for a tank semi-trailer and a heavy Scania P400 truck tractor, concluded between IP Petrov and IP Shurov on the eve of bankruptcy, and the agreement on the assignment of rights (under a leasing agreement) between the same persons.

All courts rejected the financial manager's request. The deal remained in force.

How did Petrov and Shurov solve the problem? They simply sold the property and rights under the lease agreement at their fair market price.

For example, a semi-trailer tank initially cost about 1.7 million rubles, and Shurov, according to the preliminary contract, cost 1.5 million rubles, of which he was obliged to pay 1.34 million rubles to Petrov, and approximately 166 thousand rubles to the lessor.

The same scheme was with the tractor, only the numbers were different. The price of the leasing agreement for Scania was approximately 4 million rubles. And the price at which the car was sold to Shurov was 3.5 million rubles, of which 2.9 million rubles were owed to Petrov, the rest to the lessor.

Thus, an important trump card was immediately knocked out of the hands of creditors and the financial manager - the non-market nature of transactions. Equipment and rights were valued at their real value. This is important because the disputed transactions were completed during the year preceding Petrov's bankruptcy. To recognize such transactions as invalid, essentially, one circumstance is sufficient - the unequal reciprocal performance of obligations.

There was only one problem left: no one saw the money that the buyer Shurov allegedly paid to the debtor Petrov. There were no bank entries or entries in the debtor's cash book...

The financial manager did not fail to take advantage of this. He stated that in the case there is no evidence of the actual receipt of funds under the above agreements and that the debtor’s receipts (Petrov claimed that Shurov paid him in cash) cannot serve as such evidence. And it is generally not known whether Shurov’s financial situation allowed him to pay that kind of money.

However, the deal was apparently prepared by competent lawyers, and it was not difficult for Shurov to repel the claims. He presented the court with loan agreements, individual entrepreneur income statements and 2-NDFL certificates from his main place of work, which confirmed that he could have the amount necessary to pay for the equipment.

Result: the ruling of the court of first instance is left unchanged, complaints to higher authorities are not satisfied.