What is the validity period for assessing the market value of real estate for a mortgage and how long does such an analysis take? Ministry of Economic Development of the Russian Federation Letter Instructions for filling out.

If an organization engages an independent appraiser to determine the market value of a fixed asset intended for sale, how long can one refer to the conclusion given by him and can the costs of the appraisal be taken into account when taxing profits if the appraised object is never sold? Pavel Erin and Elena Melnikova, experts from the GARANT Legal Consulting Service, explain.

To determine the market value of fixed assets planned for sale, the organization engages an independent appraiser, but it is not always possible to sell the assessed fixed asset. What is the validity period of the appraiser's report, during what time can it be referred to when determining the market value? Is it possible to take into account in income tax expenses the costs incurred to evaluate a fixed asset that was not sold during the tax period?

Article 12 of the Federal Law of July 29, 1998 N 135-FZ “On Valuation Activities in the Russian Federation” (hereinafter referred to as Law N 135-FZ) provides that the total value of the market or other value of the valuation object, indicated in the report compiled on the grounds and in in the manner prescribed by this federal law, is recognized as reliable and recommended for the purposes of concluding a transaction with the object of assessment, unless otherwise established in the manner established by the legislation of the Russian Federation or in court.

The appraiser's report indicates the date as of which the value of the valuation object is determined (part four of Article 11 of Law N 135-FZ, clauses 5, 8 of the Federal Valuation Standard "General concepts of valuation, approaches and requirements for valuation (FSO N 1)", approved by order of the Ministry of Economic Development of the Russian Federation dated July 20, 2007 N 256, hereinafter referred to as FSO N 1).

The legislation on valuation activities does not establish the validity period of the valuation report as such. At the same time, clause 26 of FSO No. 1 provides that the final value of the market or other value of the valuation object, with the exception of the cadastral value, indicated in the valuation report, may be recognized as recommended for the purposes of making a transaction with the valuation objects, if from the date of preparation of the valuation report no more than six months have passed before the date of the transaction with the subject of assessment or the date of submission of the public offer. Let us note that judicial practice does not in all cases consider the expiration of the specified six-month period as unambiguous evidence of the unreliability of information about the market value of an object contained in the assessment report (Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated November 7, 2011 N F01-4554/11). If a dispute arises about the reliability of the market value of an appraised object established in the report, including in connection with another existing report on the appraisal of the same object, the dispute may be considered in court (Article 13 of Law No. 135-FZ, decision of the Arbitration Court Court of the Sverdlovsk Region dated 06/01/2012 N A60-12493/2011).

It should be noted that the list of cases when an independent assessment of an object is mandatory is limited by law (Article 8 of Law No. 135-FZ). As a general rule, fixed assets owned by a commercial organization are not subject to mandatory valuation in connection with their alienation. For tax purposes, the use of a price recognized as a market price in a transaction may be important when making transactions between interdependent persons (clauses 1, 3 of Article 105.3 of the Tax Code of the Russian Federation), however, even in this case, tax legislation does not oblige the taxpayer to confirm the transaction price with an appraiser’s report .

General criteria for accounting for expenses when taxing profits are provided for in paragraph 1 of Art. 252 of the Tax Code of the Russian Federation. In accordance with this norm, for profit tax purposes, the taxpayer has the right to reduce the income received by the amount of expenses incurred (except for the expenses specified in Article 270 of the Tax Code of the Russian Federation). In this case, expenses are recognized as economically justified and documented expenses expressed in monetary form, which are incurred to carry out activities aimed at generating income.

Expenses, depending on their nature, as well as the conditions for implementation and areas of activity of the taxpayer, are divided into expenses associated with production and sales, and non-operating expenses (clause 2 of Article 252 of the Tax Code of the Russian Federation).

Subclause 40, clause 1, art. 264 of the Tax Code of the Russian Federation classifies as other expenses associated with production and (or) sales, by which income received by the taxpayer may be reduced, payments for registration of rights to real estate and land, transactions with these objects, payments for providing information about registered rights, payment for services of authorized bodies and specialized organizations for property assessment, production of cadastral and technical registration (inventory) documents of real estate.

In addition, paragraphs. 15 clause 1 art. 264 of the Tax Code of the Russian Federation allows you to take into account expenses for consulting and other similar services when taxing profits.

Let us note that tax legislation does not specify the types of transactions or property objects that are the subject of transactions in which the costs of an independent assessment of objects can be taken into account when taxing profits. The norms of the Tax Code of the Russian Federation do not exclude the possibility of reducing taxable profit for expenses associated with the assessment of a property, and in cases where such an assessment is not mandatory in accordance with the law.

Available explanations from specialists from the Russian Ministry of Finance and tax authorities indicate that they take the position that expenses associated with an expert assessment of property are taken into account when forming the tax base for income tax as other expenses, provided they comply with the provisions of paragraph 1 of Art. 252 of the Tax Code of the Russian Federation (letters of the Ministry of Finance of Russia dated October 7, 2010 N 03-03-06/2/173, dated October 6, 2009 N 03-03-06/1/649, Federal Tax Service Department for Moscow dated December 20, 2004 N 26- 12/83208).

Consequently, the ability to take into account for profit tax purposes the costs of assessing fixed assets in the case under consideration depends, in particular, on whether they can be recognized as economically justified and incurred to carry out activities aimed at generating income. It must be borne in mind that these criteria are essentially evaluative and are determined depending on many circumstances that are relevant in a particular situation.

Let us note that regarding the economic justification of expenses, the Constitutional Court of the Russian Federation in its rulings dated 06/04/2007 N 366-O-P and dated 06/04/2007 N 320-O-P indicated that the validity of expenses taken into account when calculating the tax base should be assessed taking into account the circumstances , indicating the taxpayer’s intentions to obtain an economic effect as a result of real business or other economic activity. Tax legislation does not use the concept of economic feasibility and does not regulate the procedure and conditions for conducting financial and economic activities, and therefore the validity of expenses that reduce income received for tax purposes cannot be assessed from the point of view of their feasibility, rationality, efficiency or the result obtained.

Judicial practice emphasizes that, within the meaning of Art. 252 of the Tax Code of the Russian Federation, the economic justification of the costs incurred by the taxpayer is determined not by the actual income received by the taxpayer in a specific tax period, but by the focus of such expenses on generating income, as well as the specifics of the taxpayer’s activities (Resolution of the Federal Antimonopoly Service of the Central District dated February 16, 2009 N A54-1345/2008-C8) .

In letter dated 07/06/2007 N 01-02-03/03-311, the Russian Ministry of Finance also confirmed that the issue of assessing the effectiveness and feasibility of costs is the responsibility of the taxpayer as a business entity. At the same time, according to the Russian Ministry of Finance, the criterion of economic justification for expenses should be considered in conjunction with the provisions of the fourth paragraph of clause 1 of Art. 252 of the Tax Code of the Russian Federation, according to which any expenses are recognized as expenses, provided that they are incurred to carry out activities aimed at generating income. It is the presence of a connection between the expenses incurred and the taxpayer’s business activity that is the main factor for recognizing the expenses incurred as economically justified expenses.

That is, if an organization can prove the objective purpose of expenses to generate income, it has the right to take such expenses into account when taxing profits.

In our opinion, in the case under consideration, the taxpayer’s taking into account the costs of assessing fixed assets is not unreasonable. In accordance with Art. 6 of Law N 135-FZ, legal entities have the right to have an appraiser evaluate any valuation objects belonging to them on the grounds and conditions provided for by this federal law. The market price of an object is established for the purpose of its sale, in other words, to determine objective criteria for the formation of a contract price, which, in our opinion, allows us to classify the assessment as an activity aimed at generating income. However, this must take into account the real intention of the organization to complete a transaction with the object. In this regard, we believe that it is advisable for the organization to document the preparatory activities for the transaction, including the involvement of an independent appraiser, with justification for their connection with the planned economic effect.

Of course, disagreements with the tax authority regarding the legality of accounting for such expenses in this situation are not excluded. Let us note that in law enforcement practice there are examples of courts supporting the taxpayer’s position, including in cases where the tax authority justified the illegality of accounting for expenses for the assessment of objects by the fact that such objects were not subsequently sold (see resolutions of the Federal Antimonopoly Service of the Moscow District dated March 17, 2009 N KA -A40/1737-09, FAS Volga District dated 01.08.2007 N A12-20527/06, decision of the Arbitration Court of the Khanty-Mansiysk Autonomous Okrug dated 11.03.2008 N A75-18/2008).

The texts of the documents mentioned in the experts’ response can be found in the legal reference system

When it is planned to sell an element of fixed assets or a business as a whole, the company's owners use the services of independent professional firms to determine the price of the object of the future transaction in the current market conditions. Consultations with specialists and analytics are expensive services, so the customer company is interested in at least two issues: the validity period of the market value assessment and the ability to include incurred expenses in the calculation of income tax.

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There is no legal obligation for organizations planning to sell fixed assets to conduct an independent assessment of their value. However, most companies prefer to incur additional expenses, but have an official document that will act as protection against claims from the state and counterparties.

When a company has a conclusion about the market value, it has something to answer the questions of the tax authorities. The latter check the transactions and if they find that the cost of the fixed asset is 20% or more lower than the market average, they can hold the company accountable.

Likewise, business valuation can be used to sell the business as a whole. However, there are other reasons for its implementation: the need to obtain information about the competitiveness of a commercial structure, ways to reduce the fiscal burden, possibilities for reorganization, etc.

How long is a market value report valid?

According to the provisions of 135-FZ, the final amount of the market or other price indicated in the report of independent appraisers is recognized as reliable and recommended for use in the sale and purchase if the parties acted in strict accordance with Russian legislation. Challenging the indicated value is possible in court.

The report prepared by independent appraisers contains a mandatory detail - the date as of which the information provided is current. The “expiration date” of this document as such is not limited by regulations. Only some of the data written in it may become outdated.

According to the provisions of clause 1 of FSO1, the market price stated in the report is valid for six months from the date of drawing up the document or publication of the offer for the sale of a fixed asset or business. The legislation notes that the cadastral value is recognized as an exception to this rule: it does not have a statute of limitations.

Established legal practice shows that courts do not always interpret the expiration of a six-month period as an indicator of irrelevance and unreliability of data. To prove his case in the event of a dispute between the parties, the owner of the fixed asset needs to initiate a judicial procedure for considering the case.

In what cases can valuation expenses be included as tax expenses?

Current legislation states that a company or individual entrepreneur has the right to include expenses not listed in Art. 270 of the Tax Code of the Russian Federation, if they meet the following criteria:

• actual payment;
• economic justification;
• availability of supporting primary documents.

Costs associated with the involvement of independent appraisers, as a general rule, are classified as other costs associated with production or sales. They reduce the fiscal base when calculating income taxes.

The legislation does not limit the rights of companies and individual entrepreneurs to order an independent assessment, even if it is carried out not mandatory, but on a voluntary basis. Regardless of the characteristics of the object whose value is determined and the transaction itself, expenses will reduce the tax base.

The validity period of the market value assessment report is not decisive when including the costs of specialist services in tax calculations. If the conclusions are no longer relevant, the fixed asset has not been sold, but the organization will be able to prove that its expenses were aimed at generating income (even if in fact this did not happen), it will be able to reduce the fiscal base by expenses confirmed by primary documents.

The validity period of the assessment report provided for by the legislation of the Russian Federation on appraisal activities seems to be economically justified.

About this is the Letter of the Ministry of Economic Development of the Russian Federation dated June 27, 2011 N D06-3135.

According to clause 26 of the Federal Valuation Standard “General concepts of valuation, approaches to valuation and requirements for conducting valuation (FSO No. 1)”, approved by Order of the Ministry of Economic Development of Russia dated July 20, 2007 N 256 (hereinafter referred to as FSO No. 1), the final value of the valuation object specified in the assessment report may be considered recommended for the purposes of making a transaction with the objects of assessment, if no more than 6 months have passed from the date of drawing up the assessment report to the date of the transaction with the object of assessment or the date of submission of the public offer.

Thus, in accordance with the legislation of the Russian Federation on appraisal activities, the appraisal report must be relevant either as of the date of the transaction with the subject of appraisal, or as of the date of submission of the public offer.

Additionally, specialists from the Ministry of Economic Development report that, according to clause 6 of section.

II and sec. III FSO N 1, the appraiser determines the final value by calculating the value of the valuation object using valuation approaches and justified by the appraiser agreement (generalization) of the results obtained through the use of various valuation approaches.

When preparing an appraisal report, the appraiser studies the quantitative and qualitative characteristics of the appraisal object, collects information essential for determining the value of the appraisal object using the approaches and methods that, based on his judgment, should be applied when conducting the appraisal, including: information on political, economic, social, environmental and other factors influencing the value of the valuation object, and information on supply and demand in the market to which the valuation object belongs, including information on factors influencing supply and demand, quantitative and qualitative characteristics of these factors.

The information presented in the assessment report should allow the user of the assessment report to draw correct conclusions about the characteristics examined by the appraiser when conducting the assessment and determining the final value of the property being assessed, and to make informed decisions based on these conclusions.

It should be noted that both after the date of assessment and after the date of preparation of the report, events may occur that have a significant impact on the final value of the market value of the subject of assessment, and an increase in the period of use of the assessment report leads to an increase in the risks of making unfounded decisions, in particular, by the state .

Validity period of the assessment report.

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Validity of the assessment report is April 16, 2013.

As Maxim Lyashok, General Director of the Expert Appraisal Company Sistema, notes, in the process of using the results of the appraiser’s work, which are the property valuation report and the conclusion on the value of the property itself - as an integral part of such a report, with customers or other interested parties (notaries, lawyers , lawyers, registrars, auditors, accountants, etc.) the following question often arises: What is the validity period of the assessment report? Or in other words: is the report that the customer has available valid, taking into account the date indicated in the existing report?

In order to understand this issue, let us specify some concepts.

Date of assessment. In accordance with clause 3 of the National Standard No. 1 “General principles for the valuation of property and property rights”, approved by the resolution of the Cabinet of Ministers of Ukraine dated September 10, 2003. No. 1440, the valuation date is the date (day, month and year) on which the property is assessed and its value is determined. All calculations when determining the value of property are carried out taking into account market conditions on this particular date (prices, exchange rates, inflation rates, legal requirements, etc.). This date is necessarily indicated in the appraisal agreement as its obligatory condition (along with, for example, such obligatory terms of the agreement as the type of value being determined and the purpose of the appraisal) and does not even always coincide with the date of the agreement, as the appraisal customer often believes. The assessment date should always be determined by the customer, because It is up to him to decide when he uses the results of the assessment. And by the way, in some cases (for example, for the purpose of collecting damages), the assessment date may even be “retrospective”, i.e. determined for some period of time back to the date of conclusion of the contract.

Date the report was completed. This is the date to which the conclusion on the value of the property dates itself, i.e. the date on which all assessment procedures were completed by the appraiser. All events in the market that occurred after this date and that could lead to a change in the value of the property should serve as a reason for a revaluation, if the results of such an evaluation have not yet been used by the customer for the purpose specified by the appraiser in the conclusion, in accordance with the terms of the evaluation agreement.

As we now see, these two dates are the date of assessment and the date of completion of the report are not identical concepts, as the customer of the assessment sometimes mistakenly believes. On the contrary, for example, in cases of assessing large and complex objects (integral property complexes), taking into account the timing of the assessment, the difference between the date of assessment (even if in most cases it coincides with the date of conclusion of the contract) and the date of completion of the report can sometimes amount to several weeks to several months.

It should now be noted that, as established in paragraph 57 of the above-mentioned National Standard No. 1 “General principles for the valuation of property and property rights”, the validity period of the report (and, accordingly, the conclusion on the value of the property as its integral part) is indicated by the appraiser only if necessary or in cases established by law specifically for certain situations.

Such situations include, for example:

- privatization or sale of state or municipal property through competitive means (the report is valid for 6 months from the date of assessment);

— rent of state or municipal property (the report is valid for 6 months from the date of assessment);

— enforcement proceedings (the report is valid for 6 months from the date of signing the assessment);

— expert monetary valuation of the land (the report is valid for 12 months from the date of valuation);

- “estimated value” of a property, determined for tax purposes (the report is valid for 6 months from the date of assessment).

As you can see, in contrast to the category “date of assessment”, the category “date of assessment” is used by law, but is not clearly regulated and, in most cases, is interpreted precisely as “date of assessment”.

In addition, we note that even in cases where the validity period of the report is not specified by the appraiser, such a period can be normatively determined by the relevant authorities (for example, local governments) that use this report, taking into account current legislation.

Thus, we can draw the following conclusion that the validity period of the report, except in cases determined by law or relevant authorities, is not a mandatory category and can be indicated in the report only in those situations where the appraiser considers it necessary - for example, when a property is assessed in conditions of a constantly changing market (taking into account the current price dynamics in a certain market, any other constantly changing market parameters affecting the value of the object, etc.).

At the same time, we would also like to note that in cases where an interested person, using the appraiser’s report to make any decisions, himself determines that, taking into account the period of time that has elapsed since the date of assessment, it is necessary to revaluate the object, then under certain conditions it is possible not to “ a new" assessment, but to carry out the so-called updating of the "old" assessment report.

The procedure for updating the assessment report is regulated by clauses 58-59 of National Standard No. 1 “General principles for the assessment of property and property rights”.

Expert assessment company "Sistema"

eacs.com.ua

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Question: On the economic justification of the validity period of the report on the assessment of the object of assessment provided for by the legislation of the Russian Federation on appraisal activities.

Answer: The Department of Innovative Development and Corporate Governance of the Ministry of Economic Development of Russia considered the application of the provisions of clause 26 of the Federal Valuation Standard “General concepts of valuation, approaches to valuation and requirements for conducting valuation (FSO No. 1)”, approved by Order of the Ministry of Economic Development of Russia dated July 20, 2007 N 256 (hereinafter referred to as FSO No. 1), and reports the following.

According to clause 26, the final value of the valuation object indicated in the valuation report may be considered recommended for the purposes of concluding a transaction with the valuation objects, if no more than 6 months.

Thus, in accordance with the legislation of the Russian Federation on appraisal activities, the appraisal report must be relevant either as of the date of the transaction with the subject of appraisal, or as of the date of submission of the public offer.

Additionally, we inform you that in accordance with clause 6 of section. II and sec. III FSO N 1, the appraiser determines the final value by calculating the value of the valuation object using valuation approaches and justified by the appraiser agreement (generalization) of the results obtained through the use of various valuation approaches.

When preparing an appraisal report, the appraiser studies the quantitative and qualitative characteristics of the appraisal object, collects information essential for determining the value of the appraisal object using the approaches and methods that, based on his judgment, should be applied when conducting the appraisal, including: information on political, economic, social, environmental and other factors influencing the value of the valuation object, and information on supply and demand in the market to which the valuation object belongs, including information on factors influencing supply and demand, quantitative and qualitative characteristics of these factors.

The information presented in the assessment report should allow the user of the assessment report to draw correct conclusions about the characteristics examined by the appraiser when conducting the assessment and determining the final value of the property being assessed, and to make informed decisions based on these conclusions.

It should be noted that both after the date of assessment and after the date of preparation of the report, events may occur that have a significant impact on the final value of the market value of the subject of assessment, and an increase in the period of use of the assessment report leads to an increase in the risks of making unfounded decisions, in particular, by the state .

Taking into account the above, the validity period of the assessment report provided for by the legislation of the Russian Federation on appraisal activities seems economically justified.

Deputy Director of the Department of Innovative Development and Corporate Governance
D.V. SKRIPICHNIKOV