How to demolish a part of a non-residential building. The demolition of the building is the basis for the termination of the calculation of the tax on the property of the organization
L.A. Yelina, economist-accountant
S.A. Vereshchagin, independent expert on the methodology of accounting and taxation
We liquidate unnecessary real estate
We reflect in the accounting and tax accounting the demolition of the building, the further use of which is impractical
The texts of the mentioned Letters of the Ministry of Finance are available: section "Financial and personnel consultations" of the ConsultantPlus system (information bank "Financier")Liquidation of real estate is a complex and costly operation. As a rule, real estate is liquidated if it began to interfere with the organization. For example, it has become unprofitable: the cost of its maintenance significantly exceeds the amount of income received from its use. Or it happens that on the site of an old object it is supposed to build something newer (more powerful, economical, modern), the operation or sale of which should bring more income... With tax and accounting liquidation of real estate, accounted for as a fixed asset, we will understand. But let's make a reservation right away: this article does not deal with issues related to the forced demolition of real estate (as, for example, in cases of demolition of unauthorized buildings).
We draw up documents for liquidation
So, outdated real estate is needlessly occupying space and does not bring the proper income. Its demolition causes difficulties not so much from the accounting and accounting point of view, but from the organizational and coordination point of view. After all, the demolition of buildings is not the dismantling of a closet in an office.
STEP 1. We accept and draw up a decision on the liquidation of real estate
First of all, the organization must record on paper its decision to liquidate real estate.
According to the rules established for the liquidation of fixed assets, it is necessary to create a liquidation commission Yu. To do this, the head must sign an order for her appointment. The liquidation commission should include the chief accountant (accountant) and persons responsible for the safety of fixed assets.
It is also advisable to include representatives of the technical (or engineering) service in the commission.
The purpose of the commission is to assess whether the building needs to be demolished or not T p. 77 Methodical instructions on accounting of fixed assets, approved. By order of the Ministry of Finance of Russia dated October 13, 2003 No. 91n (hereinafter referred to as the Methodological Instructions). This decision itself, as well as its justification, the commission must reflect in the act for the write-off of the object of fixed assets in the form No. OS-4.
It often happens that the manager (who is also the sole owner) independently decides to demolish a building. In this case, it makes no sense to create a commission. But the act of writing off the object of fixed assets is still better for you to do. Insofar as form No. OS-4- unified. And in order not to argue with the inspectors on the question of why you filled out the unified form incorrectly (and even more so, did not fill it out at all), it is better to draw up an OS-4 act according to the instructions - “as it should”.
By the way, running ahead, let's say that the OS-4 act is also important for justifying the costs associated with the demolition of a building in tax accounting. After all, it (according to the still valid rules) is a mandatory document confirming the very fact of the demolition of the building.
From reputable sources
Chief Specialist-Expert of the Tax and Customs Tariff Policy Department of the Ministry of Finance of Russia
" By current legislation primary accounting documents are taken into account if they are drawn up according to the form contained in the albums of unified forms of primary accounting documentation, and documents, the form of which is not provided for in these albums, must contain required details provided by the Law "On Accounting" clause 2 of Art. 9 of the Federal Law of 21.11.96 No. 129-FZ "On Accounting".
For cases of liquidation of a fixed asset object, the albums of unified forms contain the form of the primary accounting document - form No. OS-4 "Act on writing off the object of fixed assets (except for vehicles)" approved Resolution of the State Statistics Committee of Russia dated January 21, 2003 No. 7. Consequently, when writing off a fixed asset (building), it is necessary to draw up an act in the form of OS-4, which must be signed by the members of the liquidation commission.
In my opinion, the document independently drawn up by the organization (completely replacing the act in the form No. OS-4) should not be taken into account as a primary document ”.
So, you will need act OS-4. But be prepared for difficulties with filling it out, since the form of this act does not take into account all the nuances of liquidation of real estate: it is designed to write off various fixed assets.
If the decision on liquidation is made by the commission, and the head approves it, then in order to fill out this act reliably, you will have to add additional details to it. Since in it it is necessary to reflect, in addition to the very decision on liquidation itself, also its results. After all, it is simply impossible to liquidate real estate in 5 minutes. In this case, you will need at least different lines for the dates of signing the first two sections of the act (drawn up before liquidation) and its third section. The third section is called "Information on the costs associated with writing off an item of fixed assets from accounting, and on the receipt material values from their write-off ”, and it should be drawn up by the accounting department based on the results of liquidation.
But you can go the other way. For example, you can draw up a separate order from the head approving the decision to demolish a building. And the OS-4 act will be compiled by the accounting department solely to reflect the results of the demolition in the accounting. But even in this case, the requirement for the signing of this act by the liquidation commission and approval by its head is not canceled.
The search for answers to the questions of how to correctly fill out the OS-4 act during the demolition of real estate is complicated by the fact that neither the Ministry of Finance, nor Rosstat, nor any other department can currently develop and approve the forms of primary accounting documents. They also do not have the authority to clarify their application. Yu Letter of the Ministry of Finance of Russia dated 14.10.2010 No. 03-04-05 / 8-622. Meanwhile, the strict linkage of the Accounting Law to these unified forms remains.
To clarify the difficult situation that has developed with the registration of liquidation of real estate in accounting (in particular, with the completion of the OS-4 act), we turned to the Ministry of Finance.
From reputable sources
Head of the Department of Accounting and Reporting Methodology, Department of State Regulation financial control, audit activity, accounting and reporting of the Ministry of Finance of Russia
“Unified forms of primary documents are already an obsolete phenomenon. State function on the approval of such forms and the establishment of requirements for their completion, it was recognized as redundant. There is no government agency in the competence of which it would be included. The bill on accounting, which is now being considered in the Duma, does not provide for any standard forms of documents, there are only requirements for details.
So the question is what additional documents(in addition to the OS-4 act) must be drawn up during the liquidation of real estate, it remains at the discretion of the organization. Of course, every independently developed document must contain the necessary details and it must really confirm a fait accompli of economic life. "
So, no matter what version of paperwork (including the OS-4 act) you choose, the main thing is that it is clear from them what happened and when. Since these dates may be needed, among other things, to reflect transactions in accounting (which we will discuss in detail later).
STEP 2. We coordinate the liquidation of real estate with supervisory authorities
To obtain permission to work on the liquidation of real estate, organizations, as a rule, have to contact the local administration with a whole package of documents.
So, for example, in Moscow, the owner of a building (if it is not an object of cultural heritage and is not located in historically developed and historically especially valuable territories) can demolish it on the basis and p. 2.1.4 of the Rules for the preparation and production of earthworks, arrangement and maintenance of construction sites in the city of Moscow, approved. Decree of the Moscow Government dated 07.12.2004 No. 857-PP:
- <или>a permit for demolition issued by the Main Directorate for the Protection of Monuments in Moscow;
- <или>orders of the prefect of the administrative district (head of the district council).
The approval of permits for the demolition of valuable buildings located in the historical part of the city is more complex.
In addition, during the demolition of a building, it is necessary to agree with Moscow officials on the process of disposal and recycling of construction waste. a nn. 12, 2.3.13 of the Rules ... approved. Decree of the Moscow Government dated 07.12.2004 No. 857-PP.
Also, before starting work in the Technical Inspectorate of the Association of Administrative and Technical Inspections in Moscow, an order for their production must be obtained. And to receive each piece of paper, you will need a whole package of documents.
And in order to stimulate the owners in the collection of these documents and interest them in obtaining approvals, an administrative penalty is provided for the unauthorized demolition of buildings in Moscow f Art. 7.4. Law of the City of Moscow dated November 21, 2007 No. 45 "Code of the City of Moscow on Administrative Offenses":
- for officials - from 1000 to 5000 rubles;
- for organizations - from 200,000 to 300,000 rubles.
Another example: Gorno-Altaysk. Permission for the demolition of a building in this city is issued by the Department of Architecture and Urban Planning a nn. 15.2., 15.3. Rules for land use and development in the city of Gorno-Altaysk, approved. By the decision of the Gorno-Altai City Council of Deputies dated September 15, 2005 No. 29-3... And of course, in order to obtain such a permit, a number of documents must also be submitted (according to the list established by the Land Use Rules).
In many cities, the preparation and issuance of permits for the demolition or dismantling of objects is assigned to a specific department of the local administration (for example, the department of architecture and urban planning, the department of architecture and municipal services, etc.).
Therefore, a clear list of the documents you need to approve the demolition of your building should be found out at the local administration.
STEP 3. We liquidate real estate and register the results
Upon completion of the demolition or dismantling of real estate, as we have already said, we fill out section 3 of the act in the form No. OS-4. In addition, it will not be superfluous to attach to this act a copy of the document of the technical inventory service (BTI certificates on the demolition and removal from the cadastral register )clause 9 of the Regulation on the organization of state technical accounting in the Russian Federation ... approved. Decree of the Government of the Russian Federation of 04.12.2000 No. 921.
You also need to put in inventory card according to the form No. OS-6 approved Resolution of the State Statistics Committee of Russia dated January 21, 2003 No. 7 a mark on the disposal of an item of fixed assets v p. 80 Methodical instructions.
The final step in documenting the demolition of the building will be the registration of the termination of ownership of the property, which must be registered b Art. 235 of the Civil Code of the Russian Federation... Indeed, only when an entry is made in the Unified State Register of Rights to Real Estate and Transactions with it about the termination of ownership of real estate, the organization will cease to be the owner of this real estate and nn. 1, 3 tbsp. 2 of the Federal Law of 21.07.97 No. 122-FZ "On state registration of rights to real estate and transactions with it"... But, as we will see further, from the point of view of accounting and tax accounting this document is not so important now.
In addition to the above documents, to reflect the liquidation of real estate in accounting and tax accounting, you will need contracts for the services of contractors, acts of work performed, payment documents and others.
We figure out when and how to write off the residual value of liquidated real estate
When reflecting the liquidation of real estate in the accounting, first of all, we need to figure out where and when we write off its residual value (of course, if the property has not been fully depreciated). There are several interesting points in both accounting and tax accounting that need to be considered in more detail.
Deciding how to write off the residual value of the property
SITUATION 1. We are demolishing the building and do not plan to build anything in the near future.
Recognition in tax accounting residual value in expenses depends on the depreciation method:
- <если> depreciation was calculated on a straight-line basis, then:
- you must terminate the accrual of depreciation using the straight-line method from the 1st day of the month following the month in which the fixed asset was removed from the depreciable property for any reason (or its cost was completely written off )clause 5 of Art. 259.1 of the Tax Code of the Russian Federation... This means that you cannot amortize a building that you do not use and do not plan to use in your activities (even if it has not yet been demolished);
- the residual value of liquidated real estate must be fully accounted for as part of non-operating expenses v clause 5 of Art. 259.1, sub. 8 p. 1 of Art. 265 of the Tax Code of the Russian Federation;... This must be done after the demolition of the building. I am Letters of the Ministry of Finance of Russia dated 07.02.2011 No. 03-03-06 / 2/27, dated 09.07.2009 No. 03-03-06 / 1/454, dated 21.10.2008 No. 03-03-06 / 1/592, dated 19.09 .2007 No. 03-03-06 / 1/675, dated 17.01.2006 No. 03-03-04 / 1/27 and the reflection of its results in the act according to the form No. OS-4. The Ministry of Finance confirmed the correctness of this approach.
From reputable sources
“Depreciable property is property that is owned by the taxpayer and is used by him to generate income a clause 1 of Art. 256 of the Tax Code of the Russian Federation. And the accrual of depreciation stops from the 1st day of the month following the month when the cost of the depreciable property was fully written off or when this object was removed from the depreciable property of the taxpayer for any reason m clause 5 of Art. 259.1 of the Tax Code of the Russian Federation. Thus, depreciation ceases to be charged from the 1st day of the month following the month when the item of fixed assets ceased to be used in the activities of the organization. In this case, the direct demolition of the building can be done later.
Consider in the composition tax expenses the residual value of the demolished building is possible only on the basis of a fully completed act in the form of OS-4, since (as we have already figured out) it is he who is mandatory primary document required for registration of this operation and subn. 8 p. 1 of Art. 265 Tax Code” .
Ministry of Finance of Russia
Just in case, remember that:
- it is not necessary to restore the depreciation premium (if applicable) upon demolition of real estate. Insofar as amortization bonus restored only in case of sale (and not liquidation) of the fixed asset before the expiration of 5 years from the date of acquisition clause 9 of Art. 258 of the Tax Code of the Russian Federation; Letters of the Ministry of Finance of Russia dated 20.03.2009 No. 03-03-06 / 1/169, dated 16.03.2009 No. 03-03-05 / 37; Letter of the Federal Tax Service of Russia dated March 27, 2009 No. ShS-22-3 / [email protected] ;
- it is also not necessary to gradually recognize in tax accounting a loss from the write-off of a demolished building (fixed asset). After all, a loss that needs to be included in other expenses in equal shares during the remaining service life may appear only in the case of sales and subn. 1 p. 1, p. 3, art. 268 Tax Code;
- <если> depreciation was calculated using a non-linear method, then liquidated real estate should simply be excluded from the depreciation groups s clause 13 of Art. 259.2, sub. 8 p. 1 of Art. 265 Tax Code. However, the total value of the fixed assets of this group will not change, and it turns out that you will continue to write off the value of the property through depreciation. Yu Letter of the Ministry of Finance of Russia dated 20.12.2010 No. 03-03-06 / 2/217.
SITUATION 2. We are demolishing the building for a new construction site.
Let's see if there will be any differences in case you plan to demolish the building in order to build something new in its place. How, in this case, to take into account the costs of the liquidation of real estate (including the cost of demolition or dismantling works), as well as the residual value:
- <или>as independent expenses - that is, the same as in the case of liquidation of real estate without subsequent construction;
- <или>as part of capital expenditures for the construction of a new building - after all, the ruins are demolished precisely in order to erect a new object in their place.
The Ministry of Finance has already answered this question: take into account the costs of dismantling and liquidation as part of capital investments there are no grounds for new construction neither in accounting nor in tax accounting e Letter of the Ministry of Finance of Russia dated 11.09.2009 No. 03-05-05-01 / 55; p. 31 PBU 6/01 "Accounting for fixed assets", approved. Order of the Ministry of Finance of Russia dated March 30, 2001 No. 26n; subn. 8 p. 1 of Art. 265, sub. 3 p. 7 art. 272 of the Tax Code of the Russian Federation. But this answer is about demolition for planned (indefinite future) construction.
But will there be any peculiarities when the demolition of a building is a separate stage of work during new construction? Indeed, in this case, the cost of demolition of the building, as a rule, is reflected in the estimate of construction work. The specialists of the financial department think so.
From reputable sources
“When demolition costs are included in the new construction budget, two different situations are possible. It all depends on where the building that was demolished came from.
Situation 1. The organization bought or leased a land plot with a dilapidated building in order to build a new facility. This dilapidated building is not needed, it was acquired as a burden, and not as a boon. In this case, all costs of its demolition are included in the cost of the new property. If the organization bought a land plot, then the cost land plot.
Situation 2. The demolished building was previously the main asset of the organization itself. Both the residual value and the demolition cost must then be charged to recurring costs.
The logic is as follows: you need to look at what income is associated with certain costs. In the first case, the costs of the organization are made for the sake of future income. And in the second situation, the income from the use of the building has already been received in the past ”.
Ministry of Finance of Russia
Since we are considering the case when an organization liquidates a building that was recorded on its balance sheet as a fixed asset, the costs of its demolition and residual value must be accounted for as independent costs, regardless of whether something will be built in its place or not. ...
Deciding when to write off real estate from the balance sheet as a fixed asset
The residual value of the demolished property can be fully accounted for in other expenses (on account 91-2 "Other expenses" )clause 4, clause 11 PBU 10/99 "Organization expenses", approved. By order of the Ministry of Finance of Russia dated 06.05.99 No. 33n... With this, everything is clear (and, as we already found out, it does not matter at all whether you plan to build something on the site of your old building or not).
The question is when can and should it be done? And it is especially important because the property tax depends on the book value of fixed assets. O clause 1 of Art. 374 of the Tax Code of the Russian Federation... If you write off the property earlier than necessary, the inspectors will charge additional property tax and interest. Until recently (or rather, before the amendments were made to the accounting rules in force from 01.01.2011, which we told you about in 2011, No. 7), the Ministry of Finance insisted that real estate cannot be written off the balance sheet until the organization registered the loss of ownership of this property b Letter of the Ministry of Finance of Russia dated January 28, 2010 No. 03-05-05-01 / 02... And the regulatory authorities demanded the payment of property tax up to this point.
But real estate accounting does not depend in any way on state registration transfer (termination) of ownership of it. The Ministry of Finance already agrees with this. n Letter of the Ministry of Finance of Russia dated March 22, 2011 No. 07-02-10 / 20(for more details see p. 5, 2011, no. 8).
So how do you determine when to write off real estate from the balance sheet as a fixed asset? For clarification, we turned to the specialists of the financial department.
From reputable sources
" This complex issue because the practice is at odds with the requirements of regulatory documents. PBU 6/01 requires the write-off of fixed assets when it ceases to bring economic benefits to the organization. And it turns out that it is not always possible to confirm this by the date of the act of write-off according to the form No. OS-4. After all, if the decision to liquidate a building is made while employees are still working in it (it is in use), then this is not a write-off. It is necessary to write off a fixed asset when it has ceased to be used and it became clear that its use is no longer expected. This could be an order from the supervisor to stop using the building and begin preparations for demolition. Or some other document, from which it follows meaningfully that from this date the operation of the facility has been discontinued and further it is supposed to be demolished. It doesn't even matter when it is actually demolished. For example, there is no money for demolition yet. The main thing is that the building does not bring economic benefits and we cannot use it ”.
Ministry of Finance of Russia
This means that real estate can and should be written off from accounting as an asset at the moment when it became clear that it cannot bring you economic benefits - that is, you no longer use it and do not plan to use it in the future. And this moment certainly does not depend on the state registration of the termination of ownership of this property.
If the decision to demolish a building was made by your organization at the same time as the decision to stop using it (and the organization really stopped using the building), then it is not difficult to determine the date when the building was decommissioned. This will be the date the demolition decision is made. If you do not plan to demolish the building immediately, then in accounting it is advisable to reflect its conditional assessment on the off-balance sheet account. And write off the building from off-balance sheet it will be possible after its demolition.
Pay attention to the difference between tax and accounting
And one moment. Due to the fact that some time usually elapses between the day the decision on demolition is made and the day of the actual demolition of the building, there may be differences in the time between tax accounting and accounting, when the under-depreciated cost of the building is recognized as an expense (even if in tax accounting depreciation was charged on a straight-line basis). After all, it turns out that:
- it is necessary to stop the accrual of depreciation both in accounting and in tax accounting at the same time - starting from the 1st day of the month following the month of making a decision that the building is no longer in use and will not be used;
- on the date of the decision to terminate the use of the building, its cost must be written off in accounting, but in tax accounting it is necessary to wait for the real demolition of the building (complete filling of the OS-4 act).
If making a decision that a building can no longer be of use, and its real demolition falls within one block, then there is no difficulty. But if this process is extended over a longer period of time, you will have to reflect the time differences according to PBU 18/02.
We figure out whether it is necessary to recover VAT from the residual value
SITUATION 1. The real estate was accepted for registration and put into operation until 01.01.2001.
Attention
VAT on real estate, accepted for deduction before 2001, does not need to be restored.
Since we are considering liquidation of real estate, it is highly likely that it comes about some obsolete (morally or physically) buildings. And it is possible that you purchased them a long time ago. If this happened before 2001, then you have no obligation to recover VAT at all. According to the rules of the Tax Code, only the tax that was accepted for deduction according to the rules of the same Tax Code (Chapter 21 of the Tax Code of the Russian Federation )clause 3 of Art. 170 of the Tax Code of the Russian Federation. Therefore, if you accepted input VAT for deduction under the ND Law WITH Art. 7 of the Law of the Russian Federation of 06.12.91 No. 1992-1 "On Value Added Tax", then you do not need to restore anything O Resolution of the FAS PO dated 28.10.2008 No. A65-610 / 2007-CA2-22.
SITUATION 2. The real estate was taken into account and put into operation in 2001 and later.
If not to restore previously deductible VAT for liquidated real estate acquired after 2001, this may lead to legal proceedings with the tax authorities. True, the probability of winning the dispute is almost one hundred percent.
We must say right away that in this situation, the regulatory authorities advocate for organizations to restore VAT upon liquidation of fixed assets under-depreciated in accounting - after all, you will no longer use such fixed assets in activities subject to taxation. WITH Letter of the Ministry of Finance of Russia dated January 29, 2009 No. 03-07-11 / 22... The amount of the restored tax must be determined as part of the input VAT previously accepted for deduction, proportional to the residual (book) value excluding revaluation To subn. 1 p. 3 art. 170 of the Tax Code of the Russian Federation... After you recover the VAT amount, it can be included in other expenses when calculating income tax b Letter of the Ministry of Finance of Russia dated 07.12.2007 No. 03-07-11 / 617... In accounting, this VAT can also be recognized as an expense (take into account on subaccount 91-2 "Other expenses" )clause 4, clause 11 PBU 10/99.
However, while in Tax Code there is no obligation to restore VAT when writing off (liquidating) under-depreciated fixed assets v clause 3 of Art. 170 of the Tax Code of the Russian Federation. So arbitration courts support organizations that do not recover input tax G Resolutions of the Federal Antimonopoly Service of the Moscow Region dated April 27, 2010 No. KA-A40 / 2005-10, dated January 13, 2009 No. KA-A40 / 12259-08; FAS TsO dated 10.03.2010 No. А35-8336 / 08-С8; FAS PO dated 23.09.2010 No. A12-1810 / 2010, dated 11.10.2007 No. A55-733 / 2007; FAS SKO dated 02.08.2010 No. А32-47184 / 2009-19 / 807; FAS VSO dated February 19, 2007 No. A33-8478 / 06-F02-375 / 07.
We take into account the costs associated with the liquidation of real estate, and VAT on them
In addition to the residual value, there will usually be other costs. For example, the costs of dismantling, garbage collection, and other performers' services. Not to mention the cost of negotiating the liquidation itself. All these expenses are boldly taken into account both in accounting and in calculating income tax. b clause 4, clause 11 PBU 10/99; subn. 8 p. 1 of Art. 265 of the Tax Code of the Russian Federation; Letter of the Ministry of Finance of Russia dated 21.10.2008 No. 03-03-06 / 1/592.
But with VAT, everything is a little more complicated. If your contractors or other performers of work are payers of this tax, then you need to deal with one difficult question: is it possible to deduct input VAT from "liquidation" services? There are traditionally two positions on this issue (of course, we consider the situation when the demolished real estate was previously used in VAT-taxable activities).
POSITION 1. Ministry of Finance: VAT on the work and services of the contractor for the liquidation of fixed assets cannot be deducted I am , dated 22.10.2010 No. 03-07-11 / 420.
The Finance Department believes that since the liquidation of fixed assets does not apply to transactions subject to VAT, it cannot be accepted as a deduction for input VAT on liquidation (dismantling) works. I am clause 2 of Art. 171 of the Tax Code of the Russian Federation.
POSITION 2. Forensic perspective: input VAT on liquidation works and services can be deducted.
By the way, the Presidium of the Supreme Arbitration Court of Russia has already come to this conclusion. F Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of 20.04.2010 No. 17969/09... He believes that the use of an item of fixed assets in the activities of an organization is complex and includes installation, operation, and, if a production need arises, the liquidation of fixed assets. It follows from this that organizations have the right to deduct VAT paid to the contractor in the liquidation of an object of fixed assets.
Conclusion
As can be seen from the letters of the Ministry of Finance, the opinions of the arbitration courts have not yet influenced the position of the controlling bodies and Letters of the Ministry of Finance of Russia dated 02.11.2010 No. 03-03-06 / 1/682, dated 22.10.2010 No. 03-07-11 / 420.
So if you accept VAT on dismantling and liquidation works for deduction, get ready for a conflict with the inspectors.
So, it is safer to follow the Ministry of Finance's position and not deduct VAT on liquidation and dismantling works.
But here there is another snag: what to do with non-deductible VAT? The question can be formulated more clearly as follows: whether input VAT paid to the contractor and not deductible can be included in the cost of liquidation works T clause 2 of Art. 170 of the Tax Code of the Russian Federation?
Since we did not deduct input VAT, it would be logical to include it in the cost of the work itself, and then take it all together as other expenses in accounting. e clause 4, clause 11 PBU 10/99 And How non-operating expenses in tax accounting m subn. 8 p. 1 of Art. 265 Tax Code.
VAT on liquidation and dismantling works it is safer not to deduct, but to include in expenses. So there will be no disputes with the tax authorities.
Let's not beat around the bush: the tax authorities are against accounting for the failed VAT deduction in expenses. The arguments are as follows: input VAT is taken into account in the cost of goods (works, services) if they are purchased for transactions that are not subject to taxation Yu subn. 1 p. 2 art. 170 of the Tax Code of the Russian Federation, but liquidation of fixed assets does not apply to such operations. I am Art. 149 of the Tax Code of the Russian Federation... Indeed, in this case, there is no object of taxation with personal income at all. WITH clause 1 of Art. 39, paragraph 1 of Art. 146 of the Tax Code of the Russian Federation... This means that VAT on the cost of dismantling and liquidation works cannot be taken into account when taxing profits. All these arguments are cited by the auditors in the courts.
However, the arbitration courts, considering disputes about where to put the VAT that is not deductible, do not share the position of the tax authorities. They do not see any fundamental differences between the concepts of "no object of taxation" and "transactions that are not subject to taxation." Therefore, since the taxpayer did not accept VAT on dismantling work for deduction, then, in the opinion of the courts, VAT should be included in the cost of the work itself and taken into account when calculating profit tax as a non-operating expense d Resolutions of the Federal Antimonopoly Service of the Moscow Region dated May 14, 2009 No. KA-A40 / 3703-09-2; The Ninth Arbitration Court of Appeal dated 04.06.2009 No. 09AP-8136/2009-AK, dated 02.06.2009 No. 09AP-8085/2009-AK; FAS SZO dated 03.09.2007 No. A05-789 / 2007; FAS PO dated September 26, 2006 No. A57-31622 / 2005-22; FAS VVO dated 26.12.2007 No. A31-2632 / 2007-23... There must be at least some kind of justice.
By the way, our magazine has already published the point of view of specialists of the Ministry of Finance of Russia on this issue, who are allowed to write off VAT on the work of contractors that is not deductible (you can read the explanation of E.N. Vikhlyaeva in, 2009, No. 18, p. 58) ...
And do not be confused by the fact that some courts allow VAT to be deducted, while others allow this VAT to be taken into account in expenses. The conclusion from all these decisions can be made as follows: the courts of taxpayers support, no matter how they dispose of the input VAT on liquidation works (both in the case if they accepted it for deduction, and in the case when the input VAT is taken into account in the cost of work and written off to costs).
We calculate the income from the liquidation of real estate
Disassembling a building can produce many different materials. And some of them you can either use yourself or sell. In this case, whatever you find useful should be capitalized. To do this, it is necessary to draw up an act on the posting of material assets received during the dismantling and dismantling of buildings and structures, in the form of number M-35 approved Resolution of the State Statistics Committee of Russia dated 10.30.97 No. 71a.
For capitalized values, you need to determine their market value. You must take it into account on the date of property write-off:
- in accounting - as other income v p. 9 PBU 5/01 "Accounting for inventories", approved. Order of the Ministry of Finance of Russia dated 09.06.2001 No. 44n; , sub. 2 p. 1 art. 268 of the Tax Code of the Russian Federation; Letter of the Ministry of Finance of Russia dated September 30, 2010 No. 03-03-06 / 1/621.
Example. Reflection in the accounting of the liquidation of the real estate object
/ condition / On the balance sheet of the organization is a building (acquired before 2001) with an initial value of 5,000,000 rubles. (both in accounting and tax accounting). To simplify the example, suppose that the amount of accrued depreciation in accounting and tax accounting is the same - 3,500,000 rubles.
The organization stopped using the building and decided to demolish it. Both of these decisions were taken simultaneously (in April 2011) and are reflected in sections 1 and 2 of the act for the write-off of an item of fixed assets in the form No. OS-4.
For the demolition, the organization attracted a contractor, the cost of its work is 450,000 rubles. plus VAT RUB 81,000 (only 531,000 rubles). The building was demolished in May 2011.
The cost of the materials remaining after dismantling, suitable for further use, is set at 90,000 rubles. The demolition results are reflected in section 3 of the act according to the form No. OS-4 in May 2011.
/ solution / Since the building was acquired before 2001, there is no need to recover VAT on demolition of this building.
The organization decided not to deduct VAT on dismantling works performed by a third party, and included them in the cost of these works.
The following entries will be made in accounting.
Contents of operation Dt CT Amount, rub. Decommissioned initial cost liquidated building 01 "Fixed assets" 5 000 000 Depreciation for the abandoned building written off 02 "Depreciation of fixed assets" 01, subaccount "Disposal of fixed assets" 3 500 000 The residual value of the building was written off 91-2 "Other expenses" 01, subaccount "Disposal of fixed assets" 1 500 000 The cost of the building in a conditional assessment is reflected off the balance sheet 1 000 In accounting with next month depreciation will no longer be charged As of the date of completion of the liquidation of the building and the signing of the act of completed work on the demolition of the building (as of the date of execution of section 3 of the act in the form No. OS-4 - in May 2011) Reflected the cost of payment for the work of the contractor, including VAT, which it was decided not to deduct for deduction 91-2 "Other expenses" 60 "Settlements with suppliers and contractors" 531 000 10 "Materials" 91-1 "Other income" 90 000 The cost of the building was written off off-balance sheet 013 "Buildings to be demolished" 1 000 Tax accounting of liquidation operations.
the name of the operation Income / expense classification Amount, rub. Document As of the date of the decision that the building will no longer be used by the organization (as of the date of approval by the head of sections 1 and 2 of the act in the form No. OS-4 - in April 2011) The building has been excluded from the composition of the depreciable property, depreciation will be discontinued from the next month (from May 2011) As of the date of approval by the head of the demolition results (as of the date of registration of documents on the demolition of the building and section 3 of the act in the form No. OS-4 - in May 2011) Expenses included in the form of the residual value of the building
(RUB 5,000,000 - RUB 3,500,000)Non-sales expenses d subn. 8 p. 1 of Art. 265 Tax Code 1 500 000 Fully completed act in the form No. OS-4, documents on the demolition of the building Costs for demolition work included
(450,000 rubles + 81,000 rubles)Non-sales expenses d subn. 8 p. 1 of Art. 265 Tax Code 531 000 Contract for contract work, act of completed contract work Recorded materials suitable for further use Non-operating income d clause 13 of Art. 250, sub. 8 p. 4 art. 271 of the Tax Code of the Russian Federation 90 000 The act of posting material assets in the form No. M-35 As you can see, there are a lot of nuances in the demolition of real estate. All of them should be given attention by both management and accounting. And it is better to do it BEFORE DEMOLISHMENT.
Act on the Demolition of a Residential House Sample ’title =’ Act on the Demolition of a Residential House Sample ’/> In this regard, it should be noted that by the resolution of the Gossroy of Russia dated November 5, 1. At the same time, the cessation of existence of a thing upon its death or destruction must be truly irreversible. For example, if buildings were partially destroyed as a result of a fire, landslide, flood or other natural disaster, then in this case, the properties of the property will change, and not its destruction or destruction. The further fate of the property will depend on the owner of the damaged property, who can decide to restore the property. real estate, its demolition, and termination of ownership of it. The Act On Demolition Of A Residential Building Sample ’title =’ Act On Demolition Of A Residential Building Sample ’/> It must be borne in mind that the demolition of objects capital construction is associated with the dismantling of building structures, their removal and subsequent disposal, carrying out earthworks, land improvement, in addition, dismantling work must comply with the safety requirements for such work in relation to life and health individuals, property of third parties located near the dismantled object, which can be damaged in the course of such work, environmental safety. In this regard, the demolition of the object is carried out, as a rule, with the involvement of specialized organizations with the conclusion of appropriate agreements with engineering services on disconnecting the demolished buildings from utilities, contracts for demolition, relocation, processing and disposal of demolition waste and the signing of acts of work performed under the agreements, confirming their execution. In addition, the Regulation on the composition of sections project documentation and the requirements for their content, approved by the Government Russian Federation from 1. These documents are included in the annex to the survey act. The Act On Demolition Of A Residential Building Sample ’title =’ Act On Demolition Of A Residential Building Sample ’/> According to clause 9 of the Requirements, information on the name and details of the documents included in the appendix to the survey act is entered in the line List of documents used in the preparation of the Survey Act. The specified list of documents is open, however, such documents must include information that allows you to identify the property. In this way, cadastral engineer when preparing the inspection report, he uses documents confirming the termination of the existence of the real estate object, which can include, for example, a copy of the order of the authority local government on the demolition of the building, a copy of a closed order for the production of demolition work, copies of acceptance certificates for work performed under contracts for the demolition, movement, processing and disposal of demolition waste, etc. In accordance with part 6 of Article 2. of the Cadastre Law with applications for the state cadastral registration of buildings, the owners of such real estate objects, as well as the owners land plots where such real estate objects were located. In accordance with part 2 of Article 1. of the Cadastre Law, the removal from the state cadastral registration of a real estate object is carried out, unless otherwise provided by the Cadastre Law, on the basis of an application for the removal from the state cadastral registration of the real estate object and the documents required in accordance with the Cadastre Law for such registration ... In accordance with clauses 4, 6 of part 1 of Article 2. of the Cadastre Law, a document confirming the termination of the existence of a real estate object is necessary for the removal from the state cadastral registration of an inspection report with a copy of a document that establishes or certifies the applicant's right to the corresponding real estate object in the absence of information about the applicant's registered right to such a property in the state real estate cadastre. At the same time, the legislation of the Russian Federation does not establish the procedure for removing from the state cadastral registration of objects that do not meet the requirements established by Article 1. Civil Code Russian Federation, t. Tverskaya Yamskaya, d. Moscow, Ovchinnikovskaya emb., D. Moscow, st. Krasnaya Presnya, building 3, bldg. In this case, the order of demolition and dismantling of capital facilities. Requirements, the survey report is being prepared for. Inspection certificate is a document required for the removal of the object. What is the procedure for decorating a new house at the site of the demolition of the old one, what is the size. Some other documents Act of inspection of housing and communal services or Act of demolition of the BTI is not. You and your neighbor, samples and examples can be viewed on the Internet. On the site there is an old house on the red line, the house is residential. Samples, standard forms of contracts for the purchase and sale of a residential building. Sale and purchase agreement for a residential building for demolition. From the moment when the Buyer and the Seller sign the deed of acceptance and transfer of the residential building, the obligation. Technical accounting, technical plans and inspection reports. Suddenly and sharply a question arose about the inspection report, namely to what. This means that when you deregister an apartment building, you need. It is important to note that the survey report for submission to. Act of inspection of living quarters, Act of commission survey of built-in living quarters, Act of survey of housing sample, Appendix. A selection of the most important documents on the issue of Permits for the demolition of the building normative legal acts of the form of articles of expert advice and. Pathfinder Core Rulebook In Russian.
Sooner or later everything, including buildings different types and appointments become unusable (residential buildings, bridges, pipes, industrial structures, etc.). In cases where the structure poses a potential danger to buildings located nearby, as well as to the health and life of others, it is necessary to liquidate the facilities.
Emergency or planned? How objects are liquidated
The liquidation of objects, depending on the state of the building and the plans of their owners, can be emergency or planned. And each of these cases has its own nuances.
If the liquidation of the facility is carried out in an emergency / urgent manner (after a fire, accident, serious damage), then a prerequisite is the presence of the Ministry of Emergency Situations (in case unforeseen situation). After all, engineers who carry out the demolition / liquidation of an object often do not have the opportunity to fully assess the state of the object in a short time.
Planned liquidation of objects carried out in cases of need to free the territory for construction work, for the removal of structures that have reached full physical or obsolescence etc. Before starting work, it is necessary to warn the owners of nearby houses / structures about the demolition (after all, there can almost always be a particularly vigilant city dweller who will report the demolition of a building, and the work can be interrupted by the competent authorities "pending clarification").
When carrying out demolition at production sites, a complete stop of production is required, and with complete liquidation production facilities- legally formalized closure of the enterprise. The demolition of residential buildings also has its own characteristics: you need to check the registered tenants with the lists from the housing office, and also inform the residents about the upcoming work.
Important! Before starting work on the demolition of objects, it is necessary to settle possible legal issues.
Disposal of objects related to capital construction is carried out by different specialized specialists.
Indeed, in addition to work on the demolition of a structure, it is very often necessary to correctly disconnect all engineering networks, technological communications, strengthen neighboring buildings, prepare a site, etc.
Liquidation of facilities can only be started after approval by the technical commission of the Project for the organization of work related to the dismantling or liquidation of the structure. The demolition / liquidation process is carried out using mechanized means or manually (in urban areas or densely populated areas), and at facilities located at a certain distance from settlements, allowed to use a series of sequential directional explosions.
All work related to liquidation of the object, accompanied by a large amount of dust (it is necessary to provide workers of the SLZ) and construction waste, which must be removed and / or disposed of (buried).
If, after the liquidation of the object, it is not planned to conduct new construction work, the site must be reclaimed, landscape work and landscaping must be carried out.
Important! Before the start of the liquidation / demolition of objects for various purposes, it is necessary to obtain documentary evidence that the structure does not belong to cultural and architectural monuments.
Ministry of Economic Development of Russia
Documents drawn up during the dismantling of a building
New service — Construction calculators online
Question:
On the territory of the base there is a warehouse, a garage, which are unsuitable for further operation.
What are the acts for decorating a building for dismantling?
Answer:
In accordance with article 263 of the Civil Code, the owner of a land plot can erect buildings and structures on it, carry out their restructuring or demolition, permit construction on his site to other persons (with the exception of special cases defined by law).
The legislation does not contain standard forms of decisions and acts on the demolition of a building that are binding.
There is a unified form "Act on the assessment of buildings, structures, structures and plantings subject to demolition (transfer)" (form KS-10) approved by the resolution of the State Statistics Committee of Russia, which provides a link to the document that is the basis for the demolition of the building. Depending on the specific situation this can be a decision at the level of the Russian Federation, local government or the owner of the building to be demolished.
In general practice, if there is no approved regulatory document mandatory for use of the standard form of the document, then the document is drawn up in any form.
Demolition of buildings and dismantling of structures in accordance with the list of types of work on engineering surveys, for the preparation of project documentation, for construction, reconstruction, overhaul of capital construction projects that affect the safety of capital construction facilities, refer to the types of construction, reconstruction, overhaul.
In accordance with RD-11-02-2006 "Requirements for the composition and procedure for maintaining executive documentation during construction, reconstruction, overhaul of capital construction facilities and the requirements for certificates of inspection of works, structures, sections of engineering and technical support networks", approved by order Federal Service on environmental, technological and nuclear supervision of December 26, 2006 N 1128 acts of inspection of work that affect the safety of the capital construction facility and in accordance with the technology of construction, reconstruction, overhaul control over the implementation of which cannot be carried out after other work has been completed (hereinafter referred to as hidden work), are drawn up by certificates of inspection of hidden work.
Thus, work on the demolition (dismantling) of a building can be formalized by an act according to the model given in Appendix No. 3 RD-11-02-2006.
New service — Construction calculators online
The manager's decision to demolish the building should be documented in a separate document.
Post navigation
Before producing construction works for the demolition of a building in the city must be obtained. The owner of a land plot can erect buildings and structures on it, carry out their restructuring or demolition. The building owner's decision on voluntary demolition is a sample. The owner's decision to demolish the building sample help to find gdz. Demolition Act is a sample application for any purpose. Forms, samples, templates for the main activity. Samples court documents The order of the owner of the demolished buildings and structures on their demolition, a certified copy. The legislator classifies residential premises as a residential building, a part of a residential building, an apartment, and a part of an apartment. ZhK RF must be notified of the decision taken regarding the demolition. Regarding the removal of the building from the state cadastral registration on the basis of the owner's decision to demolish the property. As you can see, the procedure itself for the execution of court decisions on the demolition of unauthorized Questions1 is it enough to simply make a decision on the demolition of a building. Orlova bet on fifty gold m
... Order of the owner of the demolished buildings and structures. The first option will require the building to be entered into the register of hazardous housing, the corresponding act is signed. The owner of the land plot, the subject of other property rights to. If the house is not owned, then the owner needs a decision on demolition, for example, a decision of the authorities. the owner of the premises of the representative. The owner of a land plot can erect buildings and structures on it, carry out their restructuring or demolition, permit construction on his own. Owners living quarters in accordance with h. For the content of information posted by users of the site in the comments section. On the use of capital repair funds for demolition purposes. Protocol for obtaining samples for comparative study sample. The interdepartmental commission makes the final decision on the possibility of operating a residential building. April they blocked work bailiffs who tried to comply with the demolition order. For example, on the recognition of a residential building, a residential building.
... The owner's decision to demolish the sample building is open for discussion. Decision to demolish, order to demolish, standard order to dismantle a building. The demolition of ownerless real estate objects is unknown owner is allowed after. If the house is not owned, then the owner needs a decision on demolition, for example, a decision. Does the owner of the land have the right to consent to the demolition of the ownerless building? And the decision of the owner of a building, structure, object of construction in progress to demolish the property in the event of a voluntary demolition of the object is anyone. The decision of the owner to demolish the dismantling of the object concerns
”Frameborder =” 0 ″ allowfullscreen>
An approximate set of documents for processing a solution general meeting owners.
Print This Post
13 views
This entry was posted on Tuesday, May 8th, 2018 at 12:33 am and is filed under 1.
You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.
Demolition of a building is one of the types of construction activities.
Execution of documents for the demolition of the building
In our country, all issues related to construction are regulated by legislative acts- Civil and Urban planning codes and Federal Law. At the local and regional level, they are guided by regulations.
Demolition Permits: Where To Get
Such permission can be obtained from the relevant department of the local administration. They may have different names - the department of architecture and municipal services or the department of architecture and urban planning or something similar, but the area of responsibility is the same.
List of required documents
The owner of a private house should contact such a department with an application addressed to the head of the local administration and provide:
title documents for the site and the demolished object;
the commission's protocol on the dilapidated state of the house;
demolition organization project.
The local government department will issue a permit if there are no complaints about the project.
If you decide to demolish a house located on your site, first check with your local government whether you need to get a permit and a project for it. By law, a building with an area of 20 to 60 square meters, and the height does not exceed 5 meters, the written consent of the local government is sufficient. Demolishing a larger building will require a project from a design office.
Urban residents with a statement about the demolition of a house should contact the Office of State Architectural Control.
The list of documents that will need to be submitted to the Office is as follows:
documents for the ownership of a plot of land and a house (mandatory with an indication of the boundaries of the building);
state certificate for land;
demolition project.
Demolition of a house without the permission of the relevant authority can lead to dire consequences. In the process of work, you can harm power grids and communications, besides, you run the risk of not getting permission to build a new house on your own plot. Construction without a properly issued permit may result in the construction being considered unauthorized.
In order for the demolition procedure to proceed legally, the contractor must provide permits. After the demolition of the building, the fact of liquidation of the object should be registered and the ownership right should be canceled, that is, the old house should be removed from the cadastral register.
Paperwork for demolition - what is it?
To build and arrange new house, the old one must be demolished. Dismantling cost wooden house... The demolition procedure will depend on whether the ownership of the old house is registered and whether it is accounted for in the BTI. Several options are possible.
First, the ownership of the old house can be registered. In this case, the house is automatically registered in the BTI authorities. Therefore, in order to draw up the demolition procedure, you should first of all carry out the actual demolition, and then contact the BTI authorities to draw up a house survey report.
The cost of dismantling a brick house.
On the basis of the inspection certificate in the BTI, the record of the existence of the house will be canceled. After that, you must apply to the Office of the Federal Registration Service with an application for making a record on the termination of the existence of the house. The application should be accompanied by a technical passport (which will contain information that the object has been discontinued) and a document confirming the fact of the creation of the house (the act of putting the house into operation, which should be in the department of architecture and urban planning of the district).
Secondly, it is possible that the house is registered in the BTI, but the ownership of it is not registered. In this case, the actual demolition of the house is carried out, after which the BTI draws up an inspection report, and the house is removed from the register.
Post navigation
No more action for legal registration demolition is not necessary.
Thirdly, it is possible that the ownership of the house is not registered and the house is not included in the BTI. In this case, it is enough to simply demolish it.
For the construction of a new residential building, its design documentation should be drawn up. To compile this documentation, I recommend contacting an architectural organization.
After receiving the documentation, it must be handed over to the Department of Architecture and Urban Planning of the district in order to obtain a building permit. After obtaining permission, you can start building the house.
Upon completion of construction, you should contact the BTI authorities to draw up a technical passport, as well as the architecture department with a statement about putting the house into operation.
After inspecting the house, the commission draws up an act of putting the house into operation. The next step is to register the ownership of the house. To do this, the Office of the Federal Registration Service is provided with an act of putting the house into operation and the technical passport of the house.
Foundation dismantling cost
Publications, 14:27 10.02.2016
© RAPSI
FAQ: how to demolish real estate in Moscow without a trial
Arkady Smolin, RAPSI own correspondent
On the night of February 9, the demolition of trade pavilions, recognized by the city authorities as unauthorized construction, began in Moscow. To make it easier to understand the reasons, the degree of compliance with the law and the legal consequences of this decision, we have prepared answers to the most significant questions in this story.
Who got demolished?
104 objects in different districts of Moscow fell under the emergency demolition on February 8. Most of these structures are located in the Central (25 facilities) and Northern districts (28). Most of the shopping pavilions from the list were built in the nineties of the last century. Among the "victims" are both small stalls and shopping centers with several floors. 97 out of 104 objects have already been demolished, or are being demolished at the present time.
Is the demolition decision legal? Business version
According to the chairman of the branch office commercial real estate"Delovaya Rossiya" Eduard Gulyan, at least 27 objects from the list were taken out for demolition court decisions about the absence of self-construction.
In 2015, the Moscow mayor's office was defeated in almost all legal proceedings related to the demolition of real estate objects. In particular, the authorities lost the appeal in claims against the Albatross company (5 court decisions in favor of the Albatross owners for 2014-2015), the owner of the Passage Albatros shopping center near the Shchelkovskaya metro station, as well as claims against the owners of the pavilions near metro stations "Arbatskaya" and "Ulitsa 1905 Goda".
The property owners were even supported by Supreme Court RF. He refused to reconsider the decision on Moscow's claim against the owner of the pavilion in 254 sq. m on the street. People's Militia - LLC "TDKM". As a result, the building was also not recognized as an unauthorized building.
Is the demolition decision legal? Moscow City Hall version
Finding no support in the courts, the Moscow authorities achieved amendments to the Civil Code of the Russian Federation. In September 2015, clause 4 of Article 222 of the Civil Code of the Russian Federation came into force, according to which local authorities of an urban district have the right to independently decide on the demolition of an unauthorized building. Previously, only a court could do this. Now it is enough to admit that the land plot on which the building was erected was originally provided for other purposes. Or it must be located in an area with special conditions for the use of the territory.
On December 8, 2015, the Moscow government adopted a resolution “On measures to ensure the demolition of unauthorized buildings in certain areas of the city of Moscow”. It provides for the demolition of objects recognized by the metropolitan authorities as unauthorized construction, due to improper paperwork, being on land common use or in areas with utilities.
Demolition reasons
According to Timur Zeldich, First Deputy Head of the State Inspection for Control over the Use of Real Estate in Moscow, the demolished trade pavilions pose a threat to the health of citizens in case of accidents or emergencies. “These objects are on engineering communications, which means that they are potentially dangerous both in themselves and from the point of view of the operation of engineering networks. "
According to the leadership of the Moscow Metro, "objects located in the technical area of the metro ... create loads on the load-bearing structures of the metro, complicate the implementation of anti-terrorist measures."
However, a number of court decisions cite the results of an examination, which proved that the disputed objects do not threaten the life and health of citizens.
Why demolish at night?
On February 8, the deadline for the voluntary dismantling of squatter structures expired. Demolition work could start from midnight on 9 February. It was around this time that they began. Many people have a question: why hurry so much?
Some trade pavilions were demolished along with furniture, appliances, goods and even people inside. According to the testimony of witnesses, as well as the video filming, the procedure for the liquidation of the building, which was recognized as an unauthorized building, was not followed at all. According to the law, for this, firstly, a restriction of access to the premises must be introduced, then the inventory and evacuation of the property to the safekeeping warehouse must be made, after which, in fact, dismantling is possible.
Timur Zeldich in an interview with the media explained such a rush by the fact that “every hour of the existence of such an object threatens the life and health of not only those who work in it, but also all the people nearby, and, realizing this, the prefectures should strive to get rid of them city ".
The claim looks dubious given that most of the demolished buildings were built more than 20 years ago, so another couple of weeks or even months required to comply with all legal procedures would hardly become a significant risk to the life and health of citizens. Much more damage, it seems, was caused by the night noise of construction equipment, the work of which at this time is also prohibited by law.
The version of fears that the demolition task will become more complicated due to the threat of rallies looks more likely. The owners, who had a court order on the recognition of the building as legal, had every reason to defend their properly formalized property in almost any non-violent way.
What does property rights have to do with it?
© Vkontakte
Delovaya Rossiya checked 50 addresses from the list of demolished retail space and found out that ownership rights were registered for all objects. They are protected by article 35 of the Constitution. Paragraph 3 of the Basic Law states: “No one can be deprived of his property except by a court decision. Compulsory alienation of property for state needs can be carried out only on condition of prior and equivalent compensation. "
Let us remind you again: not a single valid court decision in favor of the demolition of these objects exists.
Moreover, even new edition The Civil Code of the Russian Federation, to which the Moscow authorities refer, although it narrows the possibilities of legalizing unauthorized buildings, does not cancel the decisions made earlier. Thus, the ownership of the buildings is retained.
Lawyers believe that the norms of the Civil Code of the Russian Federation do not endow local authorities the right to recognize capital construction objects as unauthorized construction without a court decision, since this comes into conflict with the Constitution of the Russian Federation.
Taking into account all these dubious interpretations of the laws, one should expect in the near future a mass appeal of owners to the Constitutional Court of the Russian Federation. Until now, all the courts have been on their side, so there are very few objective reasons to doubt which decision can be made under the law in this case.
Amount of compensation
If the Constitutional Court of the Russian Federation decides in favor of the owners of the destroyed real estate, the question of compensation for losses incurred by businessmen will be especially acute. Obviously, these costs will have to fall on the Moscow budget (it is extremely unlikely that specific officials will be held responsible). Thus, the damage caused is likely to be paid directly by taxpayers.
If the authorities achieve an assessment of the damage from the destroyed real estate at its cadastral value, then entrepreneurs will not be able to compensate for their losses in any way, since it may be 10-20 times less than the market value. For example, according to the latest data that can be found in open sources, the cadastral value of the building of the Pyramid shopping center on Tverskaya is 58.2 million rubles, with a market valuation - about 1.5 billion rubles. The cadastral value of 25 objects in the Central Administrative District is slightly more than 250 million rubles (with a market value of more than 5 billion rubles).
Thus, the total cadastral value of all demolished "samostroev" is about 1 billion rubles. Although lawyers estimate the market size of claims for lost property at 22 billion rubles or more.
According to the law, even without the decision of the constitutional judges, the authorities must pay compensation to the owners, which is exactly equivalent to the market value of the object, if the building has cadastral value and a certificate of ownership was obtained for it.
Since the mayor's office is talking about concern for the safety of residents (that is, it actually withdraws land plots for state needs), then one could refer to Article 281 of the Civil Code of the Russian Federation. According to its second paragraph: “When determining the redemption price, it includes market price the land plot and the real estate located on it, as well as all losses caused to the owner by the seizure of the land plot, including losses that he incurs in connection with the early termination of his obligations to third parties, including lost profits. "
It is possible that it will be possible to do without courts, since the resolution of the Moscow mayor's office speaks of payments of compensation for the demolition, but their amount has not yet been determined. However, this is unlikely: it is now known from the comments of media officials that there is no method of reimbursing such expenses, which casts doubt on their voluntary payment in the foreseeable future.
A clear example of the readiness of the capital's mayor's office to compensate for the losses of entrepreneurs is a similar story of the liquidation of landing stages on the Moscow River. As far as we know, for a year and a half the owners of the landing stages have not received any compensation at all.
Responsibility of officials
Perhaps it would be more correct to blame the responsibility for these losses on the officials who issued numerous permits that allowed the construction of this "squatter".
Since the construction of capital buildings in the center of Moscow, for obvious reasons, would have been impossible without certificates from the Moscow Committee for Architecture and Construction, the Prefecture, the District Administration, Mosenergo, Mosvodokanal, OATI, IGASN, APU, etc., then probably at least a hundred (according to the number of "squatter") criminal and administrative cases for corruption, negligence or abuse of office (the maximum penalty is imprisonment for a period of four years).
It is also important to note that abroad, in similar cases, it is customary to first publicly cancel the decision of officials, bringing them to justice. And after the court approves the demolition, buy out the property at the market price from the owner.
The Moscow authorities are still silent about the punishment of those guilty of the emergence of "unauthorized construction", as well as measures to prevent similar situations in the future (in particular, during the promised release of places for new construction to the injured entrepreneurs). The only answer to the question of how the property documents were obtained was given by the head of the State Inspectorate for Real Estate Sergey Shogurov. He stated that this would be the subject of a separate trial.
Consequences
In addition to the need to compensate the city's entrepreneurs and investors (including foreign ones) for the cost of the demolished real estate, the Moscow authorities should prepare for a wave of claims demanding compensation for shop windows, furniture, goods, as well as moral damage.
However, the main damage - the loss of public and business confidence in the force of the law and guarantees of the execution of the court's decision - is unlikely to be covered in the foreseeable future. As entrepreneurs admit, small businesses are tired of the ever-changing rules of the game. It is more and more difficult to perceive the law precisely as stable rules of the game, and the court as a real arbiter and real power.
And there is no certainty that small business will now risk creating a new urban environment, filling the first and second floors of houses, even if this civilized development strategy is supported by the authorities. In the context of prompt changes in laws during vacations, as well as making fateful decisions in the pre-New Year bustle, when court decisions are ignored, and the Constitution is interpreted as a horoscope, it is difficult to imagine who else could act as a guarantor for small and medium-sized entrepreneurs.
Regarding your question, you can refer to the Letter of the Department of Real Estate:
Letter No. D23i-1663 dated April 16, 2015 to
issues of removal from the state cadastral registration of the building on
based on the owner's decision to destroy property (demolition,
dismantling), preparation of an inspection report confirming the termination of
the existence of the property
Document type:
Letter
Document Date:
May 29, 2015
print version
Share link
The Department of Real Estate of the Ministry of Economic Development of Russia has considered the appeal within its competence.
In accordance with the Regulation on the Ministry economic development
Of the Russian Federation, approved by the resolution of the Government
Of the Russian Federation dated June 5, 2008 No. 437, Ministry of Economic Development of Russia
is not empowered to clarify the legislation of the Russian
Federation, as well as the practice of its application.
At the same time, we believe it possible to note the following on the issues raised in the appeal.
Demolition and dismantling of buildings are considered by urban planning legislation as a type of construction activity.
At the same time, the procedure for the demolition and dismantling of capital
construction is regulated by the legislation of the constituent entities of the Russian
Federation. In this regard, it should be noted that by the resolution of Gossroy
Russia of November 5, 1997 No. 18-65 approved the Approximate Regulation on
body of architecture and urban planning of the executive power of the subject
Of the Russian Federation, according to which the body of architecture and
urban planning of the executive power of the constituent entity of the Russian Federation
prepares initial and permits for demolition
(dismantling) buildings, structures and green spaces (paragraph 3).
Article 235 of the Civil Code of the Russian Federation (hereinafter - the Civil Code of the Russian Federation)
determined the grounds for the termination of property rights, subjects
which can be represented by individuals and organizations, regardless of
forms of ownership ( legal entities), as well as the Russian Federation,
constituent entities of the Russian Federation and municipalities, represented by them
authorized bodies.
Taking into account the above, as well as the provisions of Article 209 of the Civil Code of the Russian Federation, the law
property can be terminated based on the owner's decision
(owners, in the case of common property) on the destruction of property,
what in relation to capital construction objects is demolition,
dismantling such an object.
It should be noted that under death or destruction in accordance with
civil law means an irreversible physical
the termination of the existence of a thing in its original form, which makes
it is impossible to satisfy the initial needs of the owner. Wherein
the termination of the existence of a thing upon its death or destruction should be
really irreversible.
For example, if a fire, landslide, flood or other
the natural disaster, the buildings were partially destroyed, then in this case
there will be a change in the properties of the property, and not its destruction
or death. The further fate of the property will depend on
the owner of the damaged property, who can decide on
restoration of an immovable property, its demolition, and termination
ownership of it.
It should be borne in mind that the demolition of capital construction
is associated with the dismantling of building structures, their
removal and subsequent disposal, earthworks,
improvement of the land plot, in addition, work on
dismantling must comply with the safety requirements
such work in relation to the life and health of individuals, property
third parties located near the dismantled object, which may
be damaged in the course of such work, environmental
security.
In this regard, the demolition of the object is carried out, as a rule, with the involvement of
specialized organizations with the conclusion of relevant agreements
(agreements with engineering services on disconnecting demolished buildings from
utilities, contracts for demolition, relocation, processing and
burial of demolition waste) and the signing of acts of work performed on
contracts confirming their performance.
In addition, the Regulation on the composition of sections of project documentation and
requirements for their content, approved by the Government
Of the Russian Federation dated February 16, 2008 No. 87 (hereinafter - the Regulation) demolition
(dismantling) of an object or part of a capital construction object
is considered as a separate stage of construction (paragraphs 1, 8,
10 of the Regulations), in respect of which the "Project of the organization
works on demolition or dismantling of capital construction objects ",
the composition and requirements for which are provided for in clause 24 of the Regulations.
Comprehensive analysis of the legislation of the constituent entities of the Russian Federation
allows us to conclude that the basis for demolition (dismantling)
capital construction object is the order of the local authority
self-government on the demolition of such an object, which, including
the procedure and terms for the demolition of such an object are determined.
List of documents required for approval by the local authority
self-government decisions on the demolition (dismantling) of the capital object
construction is determined in accordance with the legislation of the subject
Of the Russian Federation, in particular, such documents include: decision
the owner on the demolition (dismantling) of the capital construction object,
project of organizing work on the demolition or dismantling of such an object, copies
work contracts for the implementation of demolition (dismantling) works, as well as
waste disposal.
Taking into account the above, unauthorized demolition of capital construction objects is not allowed.
According to part 1 of article 42 Federal law dated July 24, 2007 No.
221-FZ "On the State Real Estate Cadastre" (hereinafter - the Law on
cadastre), the survey report is a document in which
cadastral engineer as a result of an inspection of the location of the building,
structures, premises or construction in progress, taking into account
available cadastral information about such a property is confirmed
termination of the existence of a building, structure or unfinished object
construction in connection with the death or destruction of such an object
real estate or the termination of the existence of the premises in connection with the death
or destruction of a building or structure in which it was located,
destruction or destruction of a part of a building or structure, within which
such a room was located.
It should be noted that the actual demolition (dismantling) of the object
real estate precedes the cadastral work in order to
confirmation of the termination of the existence of such immovable property.
In accordance with paragraph 3 of the Requirements for the preparation of the survey report,
approved by order of the Ministry of Economic Development of Russia dated December 13, 2010 No.
627 (hereinafter - Requirements), the survey report is prepared on the basis of
information obtained as a result of inspection of the location of the object
real estate, taking into account the information of the state cadastre of real estate, and
also other documents confirming the termination of the object's existence
real estate. These documents are included in the annex to the act
survey.
According to clause 9 of the Requirements in the line "List of documents,
used in the preparation of the Inspection Report ", information about
the name and details of the documents included in the annex to
survey act. The specified list of documents is open,
however, such documents must include information to enable
identify the property.
Thus, the cadastral engineer, when preparing the survey report
uses documents confirming the termination of the object's existence
real estate, which can be attributed, for example, a copy of the order
local government for the demolition of the building, a copy of a closed warrant for
demolition works, copies of acceptance certificates for completed works
demolition, relocation, processing and disposal contracts
demolition waste, etc.
In accordance with part 6 of article 20 of the Cadastre Law with statements about
removal from the state cadastral registration of buildings has the right to apply
owners of such real estate objects, as well as owners of land
plots on which such real estate objects were located.
According to part 2 of Article 16 of the Cadastre Law, removal from
state cadastral registration of the property is carried out,
unless otherwise provided by the Cadastre Law, on the basis of an application for
removal from the state cadastral registration of the real estate object and
necessary in accordance with the Cadastre Law for the implementation of such
accounting documents. In accordance with clauses 4, 6 of part 1 of article 22
Of the Cadastre Law necessary for removal from the state cadastral
accounting by a document confirming the termination of the existence of the object
real estate is an act of inspection with the attachment of a copy of the document,
establishing or certifying the applicant's right to the relevant
real estate object (in the absence of information about the registered right
an applicant for such a property in the state cadastre
real estate).
At the same time, the legislation of the Russian Federation does not establish the procedure
removal from the state cadastral registration of objects that do not meet
the requirements established by Article 130 of the Civil Code of the Russian
Federation, i.e. not real estate objects, but accounted for in
as such.
It should also be noted that Article 8.18 of the Law of the City of Moscow dated
November 21, 2007 No. 45 "Code of the City of Moscow on Administrative
offenses "for the unauthorized demolition of buildings,
located on the territory of the city of Moscow,
administrative responsibility.