Objects and subjects of leasing. Definition and essence of leasing. Other types of leasing

In today's economic conditions, untimely modernization of production can quickly lead an enterprise to bankruptcy. To prevent this from happening, you should skillfully use the available financial instruments. As a rule, bank loans are used for such purposes, however, there is a more effective way to purchase new equipment or machinery - this is leasing.

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concept

Before we move on to considering the issue of a leasing object, let's look at what the concept of "leasing" means and what regulatory documents regulate such relations in Russia. So, at present, the source of civil law regulation of leasing are two main documents - the Civil Code of the Russian Federation and Federal Law No. 164-FZ “On Leasing” (hereinafter referred to as the Law).

In accordance with the Civil Code of the Russian Federation, leasing is a transaction, as a result of which the lessor (lessee) undertakes to purchase from a certain seller (supplier) the property chosen by the lessee (lessee) and transfer the acquired property to him for commercial use, on terms of payment for his services.

The law supplements this definition of the term "leasing" by introducing an additional qualifying feature - the right to buy out property by the property user (tenant).

In simple terms, in essence, leasing is a long-term lease of property with the possibility of its subsequent redemption, providing for a number of tax preferences for the tenant.

Kinds

Clause 3 of Article 7 of the Law separates three types of leasing:

Type of leasing	Peculiarities	Essence of the deal
Financial	Provides for the purchase of property by the tenant at the end of the contract. The term of the contract is comparable to the useful life of the property. As a rule, at the end of the contract, the value of the property approaches zero, and can become the property of the tenant without additional payment.	Obtaining targeted funding
Operational (operational)	At the end of the contract, the property is usually returned to the tenant. Unlike financial leasing, it has a significantly shorter useful life of the property. Usually, the object of leasing is property that is the property of the person transferring the property to leasing (ie, the seller in this transaction may be absent in principle). In comparison with financial leasing, obtaining property in operational leasing is more expensive.	Variety of rent
returnable	The property is redeemed from the client and transferred to him on lease, i.e. the seller of the property and the lessee are one person	A special form of lending secured by fixed assets of the enterprise with the possibility of obtaining tax preferences from the use of leasing

The most popular types of leasing today is financial leasing, which provides for the purchase of vehicles, equipment and special equipment, which is largely facilitated by various state support programs.

Leasing objects

The property that is transferred for management and operation to the tenant is called the object (subject) of leasing. In accordance with the Civil Code of the Russian Federation and the Law, any property that is not completely destroyed and can be used for its intended purpose can be the object of a leasing transaction.

Thus, the following property can be leased:

buildings, structures, incl. property complexes and even enterprises;
equipment, machinery, vehicles, etc.;
any other movable or immovable property, the leasing of which is permitted by the legislation of the Russian Federation.

Within the framework of the current legislation, the objects of leasing cannot be:

plots of land and objects of nature;
property, the transfer of leasing of which is prohibited at the legislative level, or for which a special procedure for handling is established;
property that loses its original consumer properties during operation (raw materials, materials, etc.);
intangible assets (software, inventions, etc.).

Video: Accounting for leasing transactions

Legal relations

An important aspect of legal relations under a leasing agreement is the transfer of the procedure and conditions for the transfer of ownership of the leasing object, the procedure and conditions for its redemption by lessees, registration with state bodies, as well as the balance sheet of such property.

So, let's look at these conditions in detail:

Terms of the lease agreement	Description	What is regulated
Ownership	The object of leasing is the property of the person transferring the property to leasing. The transfer of ownership of the property may occur at the end of the contract or earlier, by decision of the parties.	Art. 11, 19 Law
State registration of acquired property	It is possible to register property, both for the tenant and for the person transferring the property on lease, however, in most cases, the property is still registered for the tenant The lessor can transfer the right of registration to the name of the person transferring the property on lease to the lessee, which is reflected in the property documents by entering data on the owner and user. Upon termination of the contract / seizure of property, data on the user by state bodies are canceled.	Art. 20 Law
Accounting for property and depreciation accrued on it	It is carried out by the person on whose balance sheet the object of leasing is listed. The party on whose balance sheet the leased property is recorded must be specified in the lease agreement.	Order of the Ministry of Finance of the Russian Federation No. 15 dated February 17, 1997
Seizure of property	If the terms of the contract are not fulfilled, the lessor has the right to seize the property. In this case, the costs of transportation and dismantling of the property are borne by the lessee. The property cannot be foreclosed on the obligations of the tenant, including those cases where the property is registered in his name	Articles 13.23 of the Law
Property insurance	Insurance of property against loss, shortage or damage from the moment of acquisition and until the end of the lease agreement is carried out by the tenant, unless otherwise specified in the agreement. An exception is the obligatory insurance of civil liability of the tenant, provided for by law (for example, the purchase of OSAGO, if the object of leasing is a car)	Article 21 of the Law
Maintenance and preservation of property	It is the responsibility of the tenant and is made at his expense, unless otherwise specified in the lease agreement. Improvements made to the property may be the property of the tenant if they are separable from the property and unless otherwise specified in the lease agreement. The issue of compensation to the tenant for improvements made, if they are inseparable from the property, is regulated by the contract, the written consent of the person transferring the property on lease to such changes and the current legislation of the Russian Federation. Loss (destruction) of property through the fault of the tenant is not a basis for termination of obligations under the lease agreement	Articles 12.26 of the Law

balance sheet

As we said above, the Law allows you to take into account property, both on the balance sheet of the lessee and on the balance sheet of the person of the lessor, which raises the question of which method is most beneficial for the lessee from a financial point of view.

After analyzing the current legislation, it should be noted that the accounting of property on a particular balance sheet does not fundamentally affect the receipt of tax, with the exception of the following cases:

if a person has tax benefits, the opportunity not to pay or significantly reduce the cost of property tax on the balance sheet;
to increase assets or book value, when it is necessary for the person on whose balance sheet the property is recorded (not related to economic feasibility);
the economic effect of the transaction also decreases when real estate is leased, because on the balance sheet of the enterprise, it is taken into account not at the cost of its acquisition, but at the amount of the entire leasing agreement, excluding VAT, as a result of which all transaction costs (interest, commissions, conversions, etc.) are subject to taxation.

It should be noted that the accounting and display of property in accounting on the balance sheet of the lessee is somewhat more complicated, because. in this case, there are no standard wiring diagrams.

The use of leasing today is one of the most effective ways of financing production, allowing enterprises to get access to the most modern and expensive equipment.

As an alternative to a bank loan, leasing can play an important role in retooling the fixed assets of Russian producers, thus increasing their competitiveness.

Considering the importance of such changes for the state, it is necessary on its part not only to introduce various state support programs (which is already happening today), but also to popularize this type of financing among entrepreneurs, as the main consumers of such services, incl. due to various explanations of the benefits they receive when using this tool.

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Hello, dear readers of the financial magazine "site"! In this edition we let's talk about leasing: what is it, how does it differ from a loan, what are the advantages and disadvantages of leasing, what types of leasing exist, and what is more profitable - leasing or a loan.

It is no longer something unexpected and original for anyone to acquire something using borrowed money. , loans from commercial organizations have firmly entered modern life and are an important component for the formation and active functioning of the market.

The article is devoted leasing agreements , which in Russia are most often concluded in the implementation of entrepreneurial activity. This is due to the fact that the acquisition of property on lease by organizations and persons not engaged in commerce has become possible relatively recently. But in some cases, it is the acquisition of something within the framework of leasing that can be more profitable and convenient.

Leasing - a modern tool in the financial sector, so information about the types of leasing, its differences from other credit products will be useful to car enthusiasts, entrepreneurs, as well as those who are just about to start their own business using borrowed funds and equipment. In separate articles, we have already written, from complete scratch and where you can get without collateral.

But about how it is more convenient and more profitable to use leasing services will be discussed in this publication.

Leasing: definition and concept of the term, types and forms of leasing, main differences from a loan, advantages and disadvantages

Literally term "leasing" translates as "rent, lease" , but the main difference between a leasing operation and the usual provision of property for rent is the possibility of subsequent redemption of the used property, taking into account the payments made .

Leasing is a form of lending, in which certain property is provided for temporary use and possession for a fee.

1.1. Subjects and objects of leasing relations

The subjects of the leasing operation are:

lessee– an individual or legal entity receiving the opportunity to use any property under the terms of a leasing agreement;
lessor- a credit institution, a legal entity, as well as individuals providing leasing services;
insurer insuring the transaction and (or) the transferred property;
property supplier- the seller or manufacturer of certain equipment, dealer, owner of the property.

Lessee And lessor are obligatory participants in the leasing agreement and represent the main parties to the agreement.

The insurance of the transaction and the property itself leased is carried out at the discretion of the lessor, the terms of insurance, its cost and volume are determined by agreement of the parties.

The lessor may be the owner of the transferred property, and may only provide the service of transferring property for temporary use from the supplier to the lessee.

The object of leasing relations almost any non-consumable property can act (with the exception of land plots and other natural objects, as well as items whose free circulation is limited or prohibited).

It can be:

structures and buildings;
equipment, production lines;
enterprises;
transport for various purposes;
other property in the use of which the lessee is interested.

1.2. What is the economic meaning of leasing?

Using leasing operations to obtain the possibility of actual ownership of certain property, you can get significant benefit as opposed to direct acquisition with own or borrowed funds.

This is achieved due to the fact that the lessee can use the property of interest to him almost immediately after making the down payment, which, as a rule, is no more than 30 % of market value.

The remaining amount is paid within the terms stipulated by specific agreements, the variability and flexibility of which distinguishes them favorably from loan agreements.

For example , payments may be seasonal in nature, based on the specifics of the property and the type of entrepreneurial activity.

one more a plus use of property on the basis of a leasing agreement is that despite the possibility of operating the leased asset, taxes on such property not charged (the obligation to pay property tax appears only after the acquisition of ownership).

So, the operation of property on the basis of a leasing agreement can have the following advantages:

the ability to immediately not spend large amounts of money;
a variety of conditions for the provision of property in leasing;
exploited property is not taxed.

Forms, types and types of leasing operations

2. Types of leasing - an overview of the 4 main types 📑

Leasing is often perceived only as financial instrument for business activities , mainly associated with the use of any equipment.

This is due to the fact that in the Russian Federation, initially leased property could be used for business purposes only, and the legislation regulating leasing relations itself had a number of serious contradictions and inconsistencies.

The possibility of obtaining property on lease for consumer purposes has become possible since 2011, while in Western European countries, the acquisition of property through the execution of leasing agreements is common practice.

View number 1. Car leasing

You can lease a vehicle physical , and entity . Unlike a regular lease, the lessee has the opportunity to further obtain ownership of the vehicle if the conditions specified in the contract are met. We have already discussed in more detail in one of the previous articles.

Car leasing is a fairly reliable type of leasing operations for companies specializing in this, since cars, commercial and freight vehicles are sufficiently liquid property popular in the secondary market.

Mandatory registration of vehicles with the relevant government agencies allows you to find such property in case of dishonest behavior of the recipient or illegal actions of third parties.

Leasing a car has certain benefits:

payment for transport does not occur immediately, but gradually, in accordance with the concluded leasing agreement. You can use the transport purchased in this way immediately after making the first payment;
Unlike buying a car on credit, leasing operations can be executed with a wide variety of conditions. This applies to the methods and terms of making payments, operating conditions and obtaining ownership of the transport. The recipient may be offered the most convenient payment schedule , and at the end of the leasing agreement, the transport can be returned or acquired into ownership upon payment of the remaining amount (if the value of the property was not fully covered by payments under the agreement);
legal entities using transport on the terms of a leasing agreement receive certain tax preferences;
registration of vehicles in leasing is much easier than the conclusion of a loan agreement. It is not required to immediately re-register the right of ownership, a simplified process of checking the lessee and his solvency;
transactions for the transfer of vehicles to leasing are processed much faster than when obtaining a loan. Often, from the moment of application to the signing of a leasing agreement, it takes 1 to 3 days.

Thus, if the purpose of the lessee is the temporary operation of a vehicle, then, of course, leasing will be the best way to get the opportunity to use the desired car.

To purchase a car right away, ownership can be attractive, but with leasing, during the operation of a particular vehicle, you can clearly determine whether a particular make or model of vehicle is suitable for particular purposes or a particular user.

And if for some reason the car did not fit, then it is enough just to return it to the lessor, without thinking about how it is in the secondary market.

At present, since the requirements for the lessee to carry out entrepreneurial activities are excluded from civil law, a fairly large number of organizations provide vehicles for leasing.

Therefore, choosing the most suitable option for yourself, both under the terms of the agreement and the subject of leasing, is not particularly difficult.

Vehicles can be used How in personal, and for commercial purposes . Therefore, it is on the example of this object of loan relations that one can draw up visual comparison table , demonstrating differences in the design and operation of the car purchased V leasing or in credit .

Table comparing leasing and credit

Comparison Options	Credit	Leasing
*An initial fee*	Required at least 10% from the value of the car.	At the discretion of the leasing company, may be 0 to 50% from the value of the car
*Provided Documents*	Identity documents, driver's license, documents confirming a sufficient level of income, work book. May be needed *additional documents and references* (consent of the spouse, certificates of the absence of various debts, military ID, etc.). In some cases, a simplified procedure for granting a loan with fewer borrower documents is applied, but this increases the cost of the loan or the amount of the down payment.	Passport, driver's license.
*Insurance*	Compulsory insurance and OSAGO at the expense of the borrower in insurance companies offered by the credit institution, often at rates above average.	, CASCO by agreement with the lessor. In some cases, the absence of CASCO can lead to an increase in the cost of leasing.
*Emergence of ownership*	Transport immediately becomes the property of the borrower, but remains pledged to the credit institution for the entire duration of the loan agreement. The disposal of transport is thus limited (it cannot be sold, re-registered, mortgaged).	The vehicle remains the property of the lessor. After the contract is completed, it can be re-registered as the property of the recipient or returned to the leasing company.
*Processing time*	From 3 before 10 working days.	Quite quickly, there are companies that decide on the provision of vehicles for leasing within 1 day.
*Operating restrictions*	The need for regular service maintenance at the expense of the borrower in accredited technical centers with an overestimated cost of work and spare parts.	Departure of vehicles outside the Russian Federation only with the consent of the lessor. A variety of options for maintenance conditions, service may be included in the cost of leasing.
*Additional services*	No	They can be included in leasing agreements, which are characterized by significant variability. Payment of transport taxes can be carried out by the lessor himself, as the owner of the transport.
*Withdrawal in case of non-fulfillment of the terms of the contract*	Based on a court decision. Negative information is entered into the borrower's credit history.	By decision of the lessor.

View number 2. Leasing of equipment (machinery, etc.)

The quality indicators of the enterprise, its competitiveness largely depend on the functionality and technological equipment of the equipment used. The ability to timely update existing production facilities at our own expense is far Not each organization engaged in the production or provision of services.

As a result, many companies are on outdated and partially defective equipment, sacrificing the quality and volume of products or work performed. At the same time, quite significant funds are spent on the repair and maintenance of equipment, while its cost decreases due to depreciation.

The way out of such situations can be obtaining the necessary equipment on a leasing basis with the right of subsequent redemption into the property.

The expediency of using equipment received on lease, determined by the following advantages of this financial instrument:

timely renewal of production facilities and auxiliary equipment;
more comfortable distribution of the financial burden due to the division of payments;
reduction of the tax burden;
relatively simple paperwork and the optional presence of collateral.

It is advisable to use the possibility of full redemption of leased equipment with a long period of wear, otherwise, after the expiration of the contract, the acquisition of obsolete and worn-out property will be meaningless and will form an additional tax and financial burden.

If the subject of the leasing operation is highly specialized or wear-and-tear equipment, the company providing leasing services may require an advance payment or a deposit. But even in this case, using such property under leasing can be more profitable, since after the need for such equipment is no longer required, efforts will not be required to sell it.

View number 3. financial leasing

This type of leasing, of course, does not imply the direct transfer of financial resources to the recipient, because money does not belong to non-consumable things and cannot be the object of leasing relations.

financial leasing- This is a tripartite transaction, which consists in the acquisition by the lessor from any seller of certain property with its subsequent transfer for temporary use to the recipient with the right to purchase, that is, leasing.

The characteristics of the property, and sometimes the place where the lessor must acquire the required asset, can be determined by the lessee himself, thus reducing his momentary financial burden.

The lessor, acting here as an investor, receives part of the money spent through a down payment or advance payment, and its profit is included in payments gradually made by the recipient. For example, start-up entrepreneurs in the field work according to this scheme.

View number 4. Personnel leasing

In Russian legislation, this term is considered incorrect, since people cannot be the subject of lease relations. Therefore, in the documents being drawn up, a more familiar term is used - provision of staff .

The difference between such provision of the enterprise with the necessary specialists from outsourcing is, as a rule, a shorter period of using the involved personnel and limiting the functions of professional support.

When outsourcing the involved personnel are usually transferred the functions of providing entire infrastructure systems of the enterprise for a period at least 1 year.

Personnel leasing can be carried out for shorter periods and relate to a different scope of work.

From January 2016 year in Russia there is a ban on agency work, except in the following cases:

use of temporary workers in affiliated structures;
the existence of a shareholder agreement between the parties;
provision of personnel by an accredited organization acting as an employment agency.

Thus, you can use leasing in the form of providing personnel by contacting a recruitment agency specializing in this.

The use of staff leasing can have the following benefits:

there is no need for a long search for the required specialists;
reduction of costs for personnel and accounting support of the involved personnel;
lack of obligations to provide certain social guarantees;
the possibility of a longer assessment of an employee considered for permanent employment in an organization acting as a customer;
exclusion of downtime and losses in case of illness of employees (responsibility in cases of this kind lies with the agency).

At the same time, this method of attracting staff may have a number of disadvantages:

for the provision of staff, the agency takes a commission, which can increase the amount of funds spent on providing specific functions of the enterprise;
the probability of lower qualification of employees with the same salary;
inability to check the reliability and qualifications of personnel before admission to work;
the likelihood of a disloyal attitude of involved employees to the management of the organization, the policy pursued.

To reduce the possibility of negative consequences for the enterprise, the professionalism of the employment agencies and, as a result, its reputation in the market for the provision of personnel services. It is the agency that selects employees according to the requirements of the customer organization, and it is the agency that is responsible for providing most of the social guarantees to the staff.

Other types of leasing

Types of leasing can be qualified not only by the object of the leasing operation, but also by degree of risk, terms of the leasing agreement.

According to the degree of risk, leasing is classified as follows:

unsecured lease – additional guarantees for the fulfillment of the contract by the lessee are not provided. Such a guarantee may be, for example, the obligation to pay a penalty in case of early termination of the contract;
partially secured lease – the transaction and property are insured;
guaranteed leasing – the risks are distributed among several participants in the leasing agreement, acting as guarantors of the lessee.

If we consider leasing agreements in terms of their duration in relation to the depreciation of the leased property, then we should highlight operational leasing , also called service.

Operational leasing takes place when the payment provided for by the agreement does not fully cover the cost of the leased asset, and the validity period of such an agreement is significantly less than the period of full depreciation of the object of the agreement.

This type of leasing is used in relation to rapidly aging machinery and equipment or technically complex property that requires constant professional maintenance.

Such agreements, as a rule, provide for the implementation of certain measures for the installation and maintenance of the leased asset. Therefore, such provision of property on lease is sometimes called service .

Payment for services associated with the operation of the facility may be included in the relevant payments for the use of the property or carried out separately.

Operational leasing is beneficial in the implementation of relatively short term projects when there is no need to eventually obtain ownership of the property used.

In this regard, in order to reduce the risks for the lessor, operating leases are often provided on terms that increase the costs and liability of the recipient:

higher fees for the use of property;
the need to make an advance payment;
the contract provides for penalties in case of early termination of the operation of the leased asset;
other additional conditions, guarantees from the recipient.

To optimize the tax aspects of an enterprise, the so-called leaseback when the lessee sells the specific property belonging to him to the lessor on the condition of subsequent provision of this property for rent to the recipient. Assets used are thus not accounted for as funds of the enterprise, which reduces the tax burden.

When choosing the most suitable leasing agreement, one should take into account not only the object of leasing, but also choose a type of operation that will also meet other interests of the recipient in terms of various related payments, repair and maintenance of the leased property, guarantees of compliance with rights, etc.

Leasing transaction process - 5 main steps

3. How leasing works - the procedure for processing leasing transactions 📝

Despite the relative simplicity of leasing operations, as with any financial instrument, certain rules must be followed.

The conclusion of the leasing agreement is in several basic steps, each of which must be properly evaluated as with legal, so with financial points of view.

Step #1. Choosing a leasing company and leasing object

Compared to more developed countries, the leasing services market in Russia is somewhat limited in terms of volume and range of services provided, however, there are currently no big problems in finding a leasing company.

The object of leasing is determined based on the needs and financial capabilities of the potential lessee.

When choosing a leasing company, it will not be superfluous to familiarize yourself with reviews about its work, to study the standard documents drawn up by such an organization.

The conclusion about whether the company in question is suitable for concluding an agreement with it can be made by analyzing the following information:

history of the company in the financial and investment markets;
the number of completed agreements and existing contracts;
presence of branches of the company, staff, level of their qualification;
openness of the company, accessibility of the services provided and information about them;
restrictions and conditions under leasing agreements in comparison with other companies.

Step #2. Familiarization with the terms of the leasing transaction and preliminary approval

After establishing contact with a company that provides leasing services you like, preliminary negotiations should be held on the conditions for providing a specific property for leasing.

Important positions in the agreements under consideration are:

the amount of the down payment;
guarantees of observance of the interests of the parties;
the amount and frequency of payments;
contract time;
conditions for terminating the contract.

After preliminary approval of the terms of the potential agreement, the lessee makes application and prepares the required documents. The lessor, in turn, analyzes the recipient, first of all assessing his financial condition.

Step #3. Drawing up a lease agreement

Various documents may be required to conclude an agreement, the main ones are:

direct application for leasing;
accounting records of the recipient (if such is a legal entity, For example, OOO- we wrote how to open it) for a certain period of time;
identity documents, registration and statutory documents of the company;
agreement with the supplier of the subject of the leasing agreement;
documents on insurance of the leasing object.

Depending on the subject of the agreement and the characteristics of the parties, the lessor may also need other documents and certificates characterizing the recipient or the property being leased.

The lease agreement itself must include:

description of the subject of the contract;
setting data of the parties;
essential terms of the agreement;
duration of the agreement;
schedule for making lease payments;
conditions for the subsequent redemption or return of the leased property;
rights and obligations of the parties to the agreement;
responsibility of the parties, including for failure to comply with the terms of the contract.

Step number 4. Making a down payment and delivery and acceptance of leasing property

After the conclusion of the contract the recipient pays the first installment and takes the leased asset into temporary possession.

Note! Ownership of such property is retained for the lessor for the duration of the agreement, and the recipient has the right to use the property for the purposes stipulated by the contract with timely payment in accordance with the payment schedule.

If the supplier of property participates in the contract, then the obligation to supply the leased asset to the recipient, as a rule, is assigned to him.

Step number 5. Use of the object of leasing and registration of its ownership

In case of violation of the terms of the agreement (misuse of the subject of the contract, delays in payment), the lessor has the right to demand the return of property belonging to him by right of ownership.

Responsibility for damage and breakage of property is borne by the recipient (unless otherwise provided by the agreement, For example, service lease agreement ).

If the terms of the agreement are met in full, then after the repayment of the corresponding amount specified in the agreement, the ownership of the leased property passes to the receiving party.

Profit from the use of leased property is the property of the lessee.

Leasing or credit - what is the difference, which is better and more profitable

4. What is the difference between leasing and a loan and what is more profitable 📊

As noted above, the main and main difference between leasing and credit is moment of transfer of ownership of the object of the agreement.

At buying on credit ownership of the property is registered immediately with the recipient, and in the case of leasing, the property can become the property of the lessee after the expiration of the relevant contract.

When deciding to lease property, the recipient's credit history is not as important as when obtaining a loan, and in some cases may not be analyzed at all. However, the financial condition of the recipient will be the subject of study, both when obtaining a loan, and when registering property for leasing.

Leasing or credit - which is more profitable in a crisis

As for the feasibility of using during periods of economic instability, most analysts prefer leasing agreements , which is determined a number of factors that are of increased importance during a crisis:

lower down payment (difference from the loan installment by 5-10%);
frequent provision of discounts when concluding leasing agreements (according to statistics, discounts are provided for 70-90% of leasing transactions);
the possibility of obtaining advantages in the calculation of taxes;
a shorter period of time for consideration and execution of a transaction, a simpler procedure than when obtaining a loan.

5. Frequently asked questions about leasing (FAQ)

When faced with unfamiliar loan products, many questions often arise, some of which I would like to answer separately.

Question 1. What can be the subject of leasing?

According to the current legislation, almost any non-consumable things can be the subject of leasing, including:

property complexes and enterprises;
facilities, premises and buildings;
vehicles for various purposes;
equipment (industrial, service, trade, etc.);
other immovable and movable property that is non-consumable.

In this case, the subject of leasing operations cannot be:

land;
natural objects;
property, the free circulation of which is restricted or prohibited, with the exception of military property and certain highly specialized foreign-made equipment. Leasing of such property is carried out on the basis of international agreements in the manner determined by the President of the Russian Federation.

Question 2. Who can become a lessee?

Participation as a recipient in leasing operations can be and residents and non-residents of the Russian Federation, both legal entities and individuals(including individual entrepreneurs). We have already told, in a separate article.

In addition, the lessee can be state-financed organization.

Question 3. What is subleasing? Is it legal?

Quite often there are cases when the received property (equipment, transport, etc.) is no longer needed by the lessee or at the moment there is no opportunity to use it. Then the question arises, is it possible to lease the object of leasing? This situation is subleasing.

Such a transaction is legal, provided that all relevant conditions are met. For the legitimacy of the transaction is subleasing agreement (financial sublease agreement), where the parties to the agreement will be the subtenant (the new purchaser of the property) and the former lessee.

In this case, the lessor organization (property owner) gives a written prohibition or consent to the transaction.

Question 4. How to choose the right leasing company?

When choosing a leasing company, it should be understood that in conditions of economic recession and instability, property owners face the difficulty of making a profit both from the independent use of assets and from their sale. Therefore, certain things, especially those with a high cost, are less and less purchased without borrowing.

As a result, there is currently no shortage of organizations providing leasing services, and when choosing such an organization, attention should be paid to companies offering the most favorable conditions for the client.

At the same time, at least a little analyze the activities of the leasing company, having studied its history in the market, evaluating the volume of transactions already closed.

The seriousness and stability of the company can be assessed based on the degree of openness of information about its activities, the availability of services provided.

6. Conclusion + video on the topic of the publication 🎥

In today's world with a wide variety of financial instruments, leasing is a fairly convenient and relatively simple way to get the opportunity to use the necessary property.

Therefore, at least a superficial knowledge of the existence of leasing operations and the opportunities they provide will be useful not only to every entrepreneur, but also to ordinary people.

And a video on the topic "Development of leasing in Russia", where the expert talks about the subtleties and features of the development of leasing.

M.A. Borovitskaya Chapter from the educational-methodical manual "Banking services to enterprises"
according to the materials of the site www.aup.ru

TOPIC 5. LEASING

5.1. Definition and essence of leasing

Leasing - this is a complex of property and economic relations arising in connection with the acquisition of property and its subsequent lease for temporary use for a certain fee.

Classical leasing has a tripartite relationship: the lessor, the lessee, the seller (supplier) of the property, and the leasing operation is carried out according to the following scheme. The future lessor needs some property for the acquisition of which he does not have free financial resources. Then he finds a leasing company that has sufficient financial resources, and turns to her with a business proposal to conclude a leasing deal. According to this transaction, the lessee chooses the seller who has the required property, and the lessor acquires it and transfers it to the lessee for temporary use for a fee specified in the leasing agreement. At the end of the contract, depending on its terms, the property is returned to the lessor or becomes the property of the lessee.

In the case of the implementation of an expensive project, the number of participants in the transaction increases. This, as a rule, occurs due to the attraction by the lessor to the transaction of new sources of financial resources (banks, insurance companies, investment funds, etc.).

From the point of view of property relations, a leasing transaction consists of two interrelated components: relations for the sale and purchase and relations associated with the temporary use of property. From the point of view of the law of obligations, these relations can be implemented with the help of two types of contract: sale and purchase and leasing (transfer of property for temporary use).

If the leasing agreement provides for the sale of property after the expiration of the contract, then the relationship of temporary use passes into a relationship of sale, only now between the lessor and the user of the property.

All stages of the leasing process are closely related. So, relations for the temporary use of property (leasing agreement) arise only after the implementation of the sale and purchase agreement. It can be said that in a leasing transaction, the execution of one contract gives impetus to the emergence of the next transaction, and the participants in the leasing process closely interact with each other at different stages.

On first stage the equipment manufacturer and the lessor, concluding a sales contract, act as a seller and a buyer. At the same time, the user of the property, not legally participating in the sale and purchase agreement, is an active participant in this transaction, choosing equipment and a specific supplier.

All technical issues related to the implementation of the sale and purchase agreement (completeness, terms and place of delivery, warranty obligations, acceptance procedure, etc.) are resolved between the manufacturer and the lessee, the lessor is responsible for financial security of the transaction.

On second stage the buyer of the property leases it for temporary use, acting as a lessor. However, the relationship under the second contract is not closed between the user and the lessor. The seller of the property, although he concludes a contract of sale with the lessor, is responsible for the quality of the equipment to the user.

If we evaluate the importance and the dominant role of the individual components of the complex of leasing relations, then the decisive ones, of course, are the relations for the transfer of property for temporary use. The sale and purchase relationship plays a secondary role.

The main features and characteristics inherent in leasing are as follows:

the pre-emptive right to choose the property and its manufacturer (seller) belongs to the user;

the seller of the property knows that the property is specially acquired for leasing it;

the property is directly delivered to the user, bypassing the owner, and is accepted for use by the user;

the user of the property, in case of detection of defects, sends his claims not to the owner, but directly to the seller, with whom he is not connected in any way;

the lessor acquires property not for its own use, but specifically for its transfer for temporary use;

the entire term of the lease agreement, the property remains the property of the lessor;

the owner of the property for the transfer of it for temporary use receives remuneration;

the user of the property ahead of schedule or after the expiration of the contract has the right to acquire it into ownership.

5.2. Objects and subjects of leasing

The object of leasing can be any movable and immovable property that, according to the current classification, is classified as fixed assets, except for property prohibited for free circulation on the market. Depending on the object of leasing, equipment leasing and real estate leasing are distinguished.

Due to the high cost, complexity of implementation, long preparation time, real estate leasing is unlikely to be widely used in our country. First of all, equipment leasing is interesting. This is also confirmed by foreign practice, where equipment leasing accounts for the bulk of all lease payments.

The subjects of leasing are:

property owner (lessor)- a person who specifically acquires property for the purpose of renting it out for temporary use;
property user (lessee)- a person receiving property for temporary use;
the seller of the property selling property that is the object of leasing.

The lessor may be a legal entity engaged in leasing activities, i.e. leasing under an agreement of property specially acquired for this purpose, or a citizen engaged in entrepreneurial activities, without the formation of a legal entity and registered as an individual entrepreneur.

The following can act as a legal entity:

banks and other credit institutions, whose charter provides for leasing activities (according to the law "On banks and banking activities in the Russian Federation");
leasing companies- financial, specializing only in financing transactions (payment for property), or universal, providing not only financial, but also other types of services related to the implementation of leasing operations, such as maintenance, training, consultations, etc.;
any firm, the constituent documents of which provide for leasing activities that have a sufficient amount of financial resources.

According to the Decree of the Government of Russia dated December 24, 1994 No. 1418, leasing activities require licensing by the Ministry of Economy of Russia. Decree of the Government of the Russian Federation No. 167 approved the "Regulations on Licensing Leasing Activities in the Russian Federation". It defines the procedure and conditions for issuing a license, its validity period (maximum five years).

A license must be obtained only for carrying out activities in the field of financial leasing. Leasing activity for the company should be the main one and give at least 40% of income based on the results of economic activity. Licensing does not apply to banks whose leasing activity is provided for by the Law "On Banks and Banking Activity in the Russian Federation".

The lessee can be a legal entity in any organizational and legal form, carrying out entrepreneurial activities, as well as a citizen engaged in entrepreneurial activities, without forming a legal entity and registered as an individual entrepreneur.

The seller of leasing property may be a manufacturer, trade organization or other legal entity, as well as a citizen selling property that is the object of leasing.

The subjects of leasing may also be enterprises with foreign investments, carrying out their activities in accordance with the law of the Russian Federation "On Foreign Investments in the Russian Federation".

5.3. Types of leasing and the mechanism of leasing transactions

The main types of leasing recognized all over the world are financial leasing and operational leasing, and the criteria for such a distinction are the period of use of the equipment and the scope of the lessor's obligations.

Operational leasing characterized by the fact that the lease term is shorter than the standard life of the property, and lease payments do not cover the full cost of the property. Therefore, the lessor is forced to lease it for temporary use several times, since for him the risk of recovering the residual value of the leased object increases. In this regard, ceteris paribus, the size of lease payments in the case of operational leasing is higher than in financial leasing.

financial leasing is a leasing of property with full payment of the value of the property and is characterized by the fact that the period for which the property is transferred for temporary use approaches in duration the period of operation and depreciation of all or most of the value of the property. During the term of the contract, the lessor recovers the entire value of the property at the expense of lease payments and receives profit from the leasing transaction. With financial leasing, as a rule, the responsibility for maintenance and insurance lies with the lessee. This type of leasing is the most common and contains many different forms that have received an independent name.

Leasing is subdivided into pure and "wet" leasing according to the volume of service of the transferred property.

Net leasing is a relationship in which all maintenance of the property is undertaken by the tenant. Therefore, in this case, the cost of equipment maintenance is not included in the lease payments. This type of leasing, as mentioned above, is typical for financial leasing.

"Wet" leasing involves mandatory maintenance of equipment, its repair, insurance and other operations that are the responsibility of the lessor. In addition to these services, at the request of the lessee, the lessor can take on the responsibility for training qualified personnel, marketing and advertising of finished products, supplying raw materials, etc. We can say that "wet" leasing is typical for operational leasing.

The market of leasing services in our country has not yet developed, and there are practically no leasing companies that would provide high-quality technical maintenance of leasing objects. In this regard, the most common type of leasing will be pure leasing.

Direct leasing. In this case, the equipment manufacturer independently leases the object. Thus, the supplier and the lessor act in one person. There is a two way deal. In this form, bilateral leasing transactions are not widely used, since with an increase in leasing operations, the manufacturer, as a rule, creates his own leasing company.

Return lease. Leaseback, being a kind of bilateral leasing transaction, has found wider application. His idea is as follows. The enterprise (future lessee) has equipment, but it lacks funds for production activities. Then this enterprise finds a leasing company and sells its property to it. In turn, the leasing company leases it to the same enterprise. Thus, the company has funds that can be directed, for example, to replenish working capital. Moreover, the contract is drawn up in such a way that after the expiration of its validity period, the enterprise has the right to buy out the equipment and thereby restores the right of ownership to it.

This type of leasing should primarily be of interest to enterprises experiencing difficulties with financial resources. It is profitable for such enterprises to sell the property of a leasing company, at the same time conclude a leasing agreement with it and continue to use the property.

Separate leasing , or leasing with additional attraction of financial resources. This is the most difficult type of leasing, as it is associated with multi-channel financing and is used, as a rule, for the implementation of expensive projects. Its distinguishing feature is that the lessor, when buying equipment, pays out of his own funds not the entire amount, but only a part of it. The rest of the amount he borrows from one or more creditors. At the same time, the leasing company continues to enjoy all tax benefits, which are calculated from the full value of the property.

Another feature of this type of leasing is that the lessor takes out a loan on certain conditions, which are not very typical for domestic financial and credit relations. The borrower-lessor is not liable to creditors for the repayment of the loan, it is repaid from the amount of lease payments. Therefore, as a rule, the lessor arranges for the benefit of creditors a pledge on property until the loan is repaid and cedes to them the right to receive part of the lease payments to repay the loan.

Thus, the main risk under the transaction is borne by creditors - banks, insurance companies, investment funds or other financial institutions, and only leasing payments and leased property serve as collateral for repayment of the loan.

In the West, more than 85% of leasing transactions are built on the basis of separate leasing. Due to the underdevelopment of the leasing business and the financial weakness of leasing companies in our country, there is good ground for the development of separate leasing.

Revolving leasing, or leasing with successive replacement of property. The need for this type of leasing may arise when the technology lessee consistently requires different equipment. In these cases, in accordance with the terms of the leasing agreement, the lessee acquires the right, after a certain period of time, to exchange the leased property for another object of leasing.

Often leasing is not carried out directly, but through an intermediary. At the same time, the agreement provides that in the event of temporary insolvency or bankruptcy of the intermediary, lease payments must go to the main lessor. Such transactions are called "subleasing".

The use of subleasing transactions is beneficial for the purpose of technical re-equipment of enterprises that are part of a holding, concern, etc. For example, the parent company does not want to directly lend to its subsidiaries for the purchase of equipment, as it is not sure about the correct use of funds. Then this parent enterprise creates a leasing company, which, at the request of the plants, buys the required equipment and supplies it to customers. In the future, she monitors the timeliness of the receipt of leasing payments, accumulates them and transfers them to the main lessor, supervises the use of equipment, and, in cases stipulated in the leasing agreement, maintenance.

In the international sphere, sub-leasing transactions, called "double dip", use a combination of tax benefits in two or more countries. For example, in the early 1990s, the acquisition of aircraft for the United States through the UK was arranged under this scheme. The effectiveness of this transaction was due to the fact that the benefits of tax benefits in the UK are greater if the lessor has the right of ownership, and in the US - if the lessor has the right to own.

A leasing company in the UK bought the aircraft and leased them to an American leasing company, which in turn leased them to local airlines. Leasing companies often open their branches in places with preferential taxation (offshore zones) for tax purposes.

5.4. Main advantages of leasing

None of the activities will be widely used if it does not bring benefits to all participants in the contractual relationship.

The main comparative advantages of the leasing transaction.

For objectivity, we note a number of disadvantages inherent in leasing. In particular, the lessor bears the risk of obsolescence of property and receipt of lease payments, and for the lessee it turns out that the cost of leasing is greater than the purchase price or a bank loan.

However, there are much more positive aspects inherent in leasing than negative ones, and with the introduction of tax incentives provided for in Decree No. 633 of the Government of the Russian Federation dated June 29, 1995, the leasing business has become even more attractive. The introduction of tax and depreciation incentives in all countries led to the rapid development of the leasing business, and, conversely, the reduction in tax incentives immediately led to a decrease in the volume of leasing operations.

The implementation of this resolution led to the release of the lessor from paying tax on profits received by him from the implementation of the leasing agreement, and value added tax when performing leasing services. The use of all the provided tax incentives makes it possible to reduce the total amount of leasing payments and attract a wider range of potential lessees to leasing. In particular, only the exemption of lease payments from value added tax can reduce lease payments by 20%.

5.5. Legal support of leasing

Reliable legal support of any entrepreneurial activity is the key and guarantee of successful business development. On the contrary, the legal uncertainty of partner relations is becoming one of the reasons that hinder entrepreneurial initiative.

In our country, in fact, until mid-1995, there were no legislative and regulatory acts regulating leasing activities. The publication of Decree No. 633 of the Government of the Russian Federation dated June 29, 1995, which formulated the action program of the Government and Federal authorities to form the legal and economic support of the leasing business and approved the "Temporary Regulation on Leasing", should be considered crucial for the development of leasing in Russia.

This "Temporary regulation on leasing" is the first normative document that contains the basic concepts that characterize the leasing activity. First of all, this resolution defines leasing, establishes the objects and subjects of a leasing transaction. The temporary provision regulates contractual relations, which apply only to relations in which the property is transferred to the lessee for a period equal to or close to the standard service life of the property, i.e. it applies only to financial leasing operations, while operational leasing, rent, rental are regulated by the current civil legislation.

Basic requirements of a financial leasing transaction:

the right to choose the object of leasing and the seller of leasing property belongs to the lessee, unless otherwise provided by the agreement;

the leased property is used by the lessee only for business purposes;

leased property is acquired from the seller only if it is leased to the user;

the amount of lease payments for the entire lease period must include the full (or close to it) cost of the leased property in prices at the time of the transaction.

The owner of the property transferred to leasing is the lessor during the entire term of the leasing agreement, and the lessee has the right to redeem this property upon or before the expiration of the agreement.

In order to take advantage of the possibility of accelerated depreciation of leased property, it is necessary to indicate this in the contract, as well as notify the tax authorities. The lessor has the right to use the leased property as collateral, unless otherwise provided by the lease agreement.

Section 2 of the "Temporary Regulations on Leasing" formulates the rights and obligations of the participants in the leasing agreement.

Basic provisions of financial leasing:

the lessee has the right to use the leased property only on the terms stipulated in the contract;
from the moment the leased property is delivered to the lessee, the right to make claims to the seller regarding the quality, completeness, delivery time of the property and in other cases of improper performance of the sale and purchase agreement concluded between the seller and the lessor passes to him. However, if the choice of property was carried out by the lessor on behalf of the lessee, then the responsibility for the quality of the leased property, as a rule, lies with the lessor;
the lessee ensures the safety of the leased property, its insurance, bears all the costs of maintaining the leased property in working condition, maintenance and repair, unless otherwise provided by the lease agreement;
The main obligation of the lessee is the timely payment of lease payments to the lessor. For non-payment or late payment of lease payments, the contract should provide for penalties;

The lease agreement may be terminated early if one of the parties has violated its terms.

The only aspect that diverges from the generally accepted world practice of financial leasing, set out in the "Temporary Regulations on Leasing" is the interpretation of liability for the risk of accidental death, loss, damage to leased property. It states that this risk is assumed by the lessor. Although an addition is made that the contract may provide for the transfer of the specified risk to the lessee from the moment the leased property is delivered to him.

The economic part of the "Law on Leasing" determines the procedure for calculating the total amount of lease payments for the entire period of the lease agreement. This amount must include:

the full (or close to it) value of the property;
payment to the lessor for credit resources used by him to acquire property;
commission fee to the lessor;
reimbursement of property insurance, if it was insured by the lessor, and other expenses of the lessor, provided for by the leasing agreement.

The next important point in the legislative support of leasing activities can be considered the entry into force on March 1, 1996 of the Civil Code of the Russian Federation, in which one of the types of lease agreement is a financial lease agreement, i.e. the leasing agreement received legislative support.

An analysis of the second part of the Civil Code of the Russian Federation showed that the features of the leasing agreement discussed above and based on generally accepted world practice are reflected in Russian civil law.

Stages of concluding a leasing transaction. As in any complex financial transaction, in a leasing operation one can distinguish three main steps:

preparation and justification;

legal registration;

execution.

On first stage

an application received by the lessor from the future lessee for the purchase of equipment;
conclusion on the solvency of the lessee and the effectiveness of the leasing process;
application-order sent by the lessor to the equipment supplier;
an application sent by a leasing company to a bank for a loan for a leasing transaction.

On second stage the following documents are drawn up:

a loan agreement concluded by a leasing company with a bank to provide a loan for a leasing transaction;
agreement on the sale and purchase of the leasing object;
the act of acceptance and delivery of the leasing object into operation;
leasing agreement;
a contract for the maintenance of the leased property, if the maintenance will be carried out by the lessor;
contract for insurance of the leasing object.

On third stage the property is operated. The lessor ensures the safety of the leased property, performs work that maintains it in working condition, and makes payments to the lessor of lease payments. Leasing operations are reflected in the financial statements, and after the expiration of the leasing period, relations are drawn up for the further use of the equipment.

The document flow in leasing transactions is as follows:

receiving an application from the lessee;

preparation of an opinion on the solvency of the lessee and the effectiveness of the leasing process;

sending a work order to the supplier;

obtaining a loan for a leasing transaction;

conclusion of an agreement on the sale and purchase of a leasing object;

signing the act of acceptance of equipment into operation;

conclusion of a leasing agreement;

conclusion of an agreement on the maintenance of the leased property;

conclusion of an agreement on insurance of the leasing object;

payment of lease payments;

return of the object of leasing;

loan repayment and interest payments.

Preparation and analysis of the effectiveness of a leasing transaction. Any leasing transaction begins with the receipt by the lessor of an application from the future lessee for the purchase of property and its lease for temporary use.

The application is made in any form, but it must contain: the name of the property, its parameters, technical and economic characteristics, as well as the location of the potential supplier and his details.

The initiative in concluding a leasing deal, as a rule, comes from the lessee, who knows what kind of property he needs and who produces it. At the same time, the lessee may apply to the lessor with a request to select a supplier of the required property. However, the last word in the choice of property and supplier remains with the lessor.

The leasing company is not an outside observer in the process of the origin of the transaction. In order for the future user to know about it, it conducts an advertising campaign about its activities and the benefits of leasing for lessees, collects information about promising types of equipment, prices, suppliers, analyzes demand and many other factors.

Simultaneously with the submission of an application or after a decision is made on its consideration by the lessor, the potential lessee submits all the documents that the lessor will require. The standard set of documents includes notarized copies of constituent documents, the balance sheet for the last year and (and) quarter, economic justification and analysis of the effectiveness of the transaction. If necessary, the lessor may require the provision of additional information.

After the lessor receives all the necessary documents, both their formal verification (location, etc.) and a comprehensive examination of the leasing project begin, which, if necessary, can be entrusted to independent experts.

The initial cost of the property, the duration of the contract, possible schemes for paying lease payments, their frequency, the amount of the advance, the residual value of the property, etc. are analyzed in advance.

The main task of the lessor is to assess the ability of the lessee to pay lease payments, as well as to assess the demand for property in order to identify the possibility of re-renting the property or selling it in case of early termination of the contract.

The difficulty of correctly assessing the client's solvency is associated with the unstable financial situation in the country, the need to assess not so much the current as the future financial position of the lessee, since the leasing agreement is concluded for a long period. It is necessary to estimate the demand for products manufactured on leased property.

In the case of international leasing, the following problems arise: the choice of the currency of payment, the assessment of changes in the exchange rate, the customs regime of the lessee, the existence of agreements on the non-application of double taxation between countries, the protection of property rights of foreign capital.

Separate leasing (leasing with additional attraction of funds) raises issues related to collateral, insurance, and various types of guarantees.

Having made a positive decision to enter into a leasing transaction, the lessor, on the basis of the lessee's application, sends an order to the supplier. Along with the legal address and bank details of the lessee, it indicates the type of property with all the necessary parameters, its price and the location of the recipient. If there is a need to perform additional work (for example, installation, installation, etc.), a technical assignment for the performance of these works with an indication of their cost is attached to the work order.

After receiving the work order, the supplier must notify the lessor of its receipt and readiness for execution.

Conclusion of a leasing deal . The main document of a leasing transaction is a leasing agreement. It is concluded between the owner of the property and the user on the provision of the latter for temporary use for entrepreneurial activities of the object of leasing.

A typical lease agreement should contain the following key provisions:

subject of the contract;
order of delivery and acceptance of property;
rights and obligations of the parties;
property use, care, repairs and modifications;
insurance;
lease term;
lease payments and penalties;
the responsibility of the parties;
settlement of disputes;
conditions for early termination of the contract;
actions of the parties upon completion of the transaction;
other conditions;
Force Majeure;
legal addresses and bank details.

In parallel with the preparation of the sale and purchase agreement, the lessor and the lessee of the property sign a leasing agreement. The preamble contains the names of the parties and the names of the persons authorized to sign the contract.

The subject of the contract indicates the property that will be purchased and transferred to the user for temporary use, its cost, place and delivery time. As a rule, transportation costs for the delivery of property are allocated as a separate amount, as they are paid by the lessee. It also mentions that the supplier is notified for what purposes the property is being acquired. It should also be indicated whether the lessor participated in the selection of property and supplier.

A mandatory condition of the leasing agreement is an indication of its validity period, and the date of commencement of calculation of the term of the agreement is the date of acceptance of the property by the lessee.

The order of delivery and acceptance of leasing property reflects which parties are involved in the acceptance of equipment. As a rule, these are the supplier, the lessor and the lessee. In some cases, the lessor may transfer its rights to accept the equipment to the lessee. If necessary, an acceptance test schedule is drawn up. The terms of acceptance of the property must be given.

Acceptance of property is formalized by an acceptance certificate, which is signed by all parties involved in the acceptance. The act certifies that the supplied property meets all the requirements recorded in the order, that it is fully equipped, operable and ready for use. From the date of signing the acceptance certificate, not only the formal countdown of the term of the leasing agreement begins, from this date all rights as an ordinary buyer (except for ownership rights) and all risks are transferred to the lessee.

After signing the acceptance certificate, the lessor begins to perform its main function - pays the supplier's bills under the sales contract. The order of payment is determined in the contract of sale. As a rule, the lessor makes an advance payment to the supplier at the time of signing the sale and purchase agreement in the amount of 20% of the value of the property, and pays the rest of the cost after signing the acceptance certificate.

In case of detection of repairable defects that do not affect the normal functioning of the equipment, the lessee indicates them in the acceptance certificate and agrees with the supplier on the terms for their elimination. If the supplier does not eliminate the faults within the period specified in the act, the lessor or the lessee in his person may demand the replacement of the leased object. Failure by the supplier to fulfill the requirements of the lessor gives grounds to the latter to terminate the contract of sale.

If the lessee refuses to accept the property due to defects that preclude its normal use, a corresponding entry is made in the acceptance certificate. In addition, the lessee must notify the lessor in writing of the detected shortcomings with a detailed description of them. This claim gives the lessor the right to terminate the contract of sale or demand replacement of the property.

However, the supplier is not such a disenfranchised party, as it might seem at first glance. If the supplier proves that the lessee has put forward unjustified reasons for terminating the sales contract, he is entitled to claim damages at the expense of the lessee.

If the lessee, regardless of possible reasons, did not accept the property within the terms specified in the contract, but declared a refusal to accept it due to the presence of shortcomings, the property is considered accepted.

The signing of the act of acceptance of property is an important step in the leasing transaction. From this moment, the lessor is released from liability to the lessee for the quality and suitability of the property, the supplier's warranty obligations, damage resulting from its use, including by a third party, and the risk of accidental death, loss, damage, theft of property passes to the lessee.

All rights of the lessor in relation to the supplier, related to the ability to directly make claims for the quality of the property, its repair and warranty service, are transferred to the lessee.

The leasing agreement must reflect the provision that the ownership of the property during the entire leasing period belongs to the lessor. The lessee has the exclusive right to own and use the object of leasing. The income received by the user on the leased property belongs to the lessee. Without the written consent of the lessor, the object of leasing cannot be transferred to a third party.

The lessee must use the property only for its intended purpose and has no right to make changes or modifications to it. It is desirable that all actions that the lessee intends to perform on the property be reflected in the leasing agreement directly or include a phrase in it with the written consent of the lessor.

The lessor may transfer its rights under the leasing agreement in whole or in part to a third party without the consent of the lessee.

The contract may contain a special section that lists the rights and obligations of the parties. The main responsibility of the lessee is the timely payment of lease payments. Showing the total amount. The lessee will have to pay this amount, and the procedure, terms, method, form of periodic lease payments are established. Typically, the contract contains a detailed schedule for the payment of lease payments with specific amounts and dates of payments.

In the event of a delay in the payment of lease payments, the contract should provide for penalties for violation of the terms of payment of periodic lease payments.

Due to the unstable political and economic environment, with an almost annual review of the value of fixed assets, the lease agreement must contain specific conditions due to which the total amount of lease payments can be revised, and with it the remaining periodic lease payments.

A separate section defines the procedure for property insurance and the actions that must be taken in the event of an insured event. As a rule, all risks associated with the delivery of property are borne by the lessor, and all risks after signing the acceptance certificate are assumed by the lessee. However, the contract may provide for a different insurance procedure.

The leasing agreement must contain conditions under which the transaction can be terminated ahead of schedule both at the initiative of the lessee and the lessor.

The main reason why the lessee may terminate the transaction is the defects of the equipment discovered during its acceptance and precluding its normal use.

The lessor has many more such reasons. They can be divided into two groups:

the reasons why the parties are released from the performance of the leasing agreement and do not bear any liability. Basically, these reasons are related to the implementation of the first contract of sale, which was canceled before the delivery of the property to the lessee, or the fact that the seller was unable to deliver;
reasons that are related to the improper performance of their duties by the lessee. They can be: the use of property for other purposes, failure to fulfill obligations to pay lease payments or repayment of accumulated debt on payments and fines, liquidation of the lessee.

In this case, the lessee must pay the lessor the so-called transaction closing amount, which includes:

unpaid amount of lease payments with penalties;

the residual amount of the property at the end of the contract, if it provides for the redemption of property;

forfeit.

One of the last sections of the agreement describes the actions of the parties to complete the transaction due to the expiration of its term. There are three options. Lessee:

returns the property to the lessor;

concludes a new leasing agreement;

acquires property at residual value.

As a rule, in financial leasing, the second or third options are implemented, since the lessor is not at all interested in returning the property. It is more profitable for him to conclude a new contract on favorable terms for the lessee or to sell it to him for a purely nominal fee.

It is generally accepted that leasing is an American invention of the 50s, which was transported a decade later by American entrepreneurs to Europe, and then to Japan. However, many experts do not agree with this view of the history of leasing and argue that economic relations similar to leasing were known long before our era.

The English terms "leasing", as well as "leasor" and "lesee" (parties of the leasing agreement) do not have an adequate translation in Russian. Many European scholars recognize the difficulty of translating the term "leasing" into other languages. The root "liz" in Greek means dissolution, and from English - rent, rent. Therefore, in view of the fact that the term "leasing" has already become quite firmly established in everyday life and is used both in domestic and foreign literature, it is probably inappropriate to translate it at all.

The main idea of leasing is that in order to make a profit it is not at all necessary to own the means of production, it is enough just to have the right to use them and generate income. Therefore, leasing allows entrepreneurs to start production activities at the time of the formation of a business without having significant initial capital.

In theory and practice, leasing is characterized by the following definitions:

1) method of lending to entrepreneurial activity;
2) one of the forms of long-term lease;
3) method of purchase - sale of means of production or the right to use other people's property;
4) investment activity.

On the one hand, leasing in its content corresponds to credit relations (the issuance of a loan for the purchase of production assets). The lessor provides the lessee with a financial service by acquiring property from the manufacturer (seller) for the full cost of ownership, and the lessee reimburses this cost to the lessor with periodic payments, which, by analogy with a loan, include the lessor’s expenses for the acquisition and maintenance of property (loan amount) and the payment of interest on him. You can also compare leasing relations with the provision by the lessor to the lessee of a commercial loan under a sale and purchase agreement with an installment payment for the property transferred to the lease in the form of lease payments. On the other hand, leasing is closely related to the rental mechanism. And in the Civil Code of the Russian Federation, leasing is treated as a financial lease, and the leasing agreement itself is treated as a special subspecies of a long-term lease agreement.

In fact, the totality of all these definitions most fully reflects the economic essence of leasing. The combination of the properties of a credit transaction, investment and rental activities at the same time forms a new organizational and legal form of business - leasing.

In this form, a complex of property relations is implemented related to the transfer of means of production for temporary use by purchasing them and subsequent leasing.

Thus, leasing is a complex tripartite transaction in which a financing leasing company (lessor) acquires movable or immovable property from a manufacturer and transfers it to the lessee's company.

The relationship between the parties to the leasing transaction can be characterized as follows:

The future lessee, in need of certain types of property, selects a supplier and, due to the lack of sufficient funds to purchase the property, applies to the future lessor with a request to participate in the transaction. The agreement may also provide that the choice of the supplier and the acquired property is carried out by the lessor.

The lessor, using its own or borrowed funds, purchases this property and, retaining the ownership of the subject of the leasing transaction, transfers it under the leasing agreement to the lessee.

The lessee receives the acquired property for use and during the leasing period pays leasing payments in the manner, terms, form and on the terms provided for in the leasing agreement.

There are lease transactions that do not fall under the somewhat “narrow” Russian definition of leasing, but are considered as such in many countries around the world.

For example, under Russian law, a transaction with property that cannot be used for business purposes is not considered a leasing operation, although in other countries these transactions may be considered leasing transactions. Thus, the concept of leasing has many interpretations, which also depend on the history of the development of leasing relations and the legislation of each individual country. Features of the Russian legislation in relation to leasing will be considered by us further.

Subjects and objects of leasing

One of the essential conditions when making a leasing transaction is the definition of the subject (object) of leasing.

According to Russian legislation, any non-consumable things can be leased objects, including enterprises and other property complexes, buildings, structures, equipment, vehicles and other movable and immovable property that can be used for business activities.

At the same time, land plots and other natural objects, as well as property that is prohibited by federal laws for free circulation or for which a special procedure for circulation has been established, cannot be objects of leasing.

The subjects (participants) of classical leasing are three main parties: the lessor, the lessee and the manufacturer (seller) of the leased asset.

The lessor is an individual or legal entity that, at the expense of its own and (or) borrowed funds, acquires property under a leasing agreement and provides it as a leased asset for temporary possession and use to the lessee for a certain fee, for a certain period and under certain conditions. The agreement may provide that the object of leasing becomes the property of the lessee upon the expiration of the term of the leasing agreement or before its expiration on the terms stipulated by the agreement of the parties.

However, cases of prohibition of the transfer of ownership of the subject of leasing to the lessee may be established by law.

The lessee is a natural or legal person who, in accordance with the leasing agreement, accepts the object of leasing for a certain fee, for a certain period and under certain conditions for temporary possession and use in accordance with the leasing agreement.

The seller is an individual or legal entity that, under a purchase and sale agreement with the lessor, sells to him, within a specified period, the property that is the subject of leasing. At the same time, the lessor, in accordance with Article 667 of the Civil Code of the Russian Federation, must notify the seller that the property is intended to be leased to a certain person. The seller is obliged to transfer the object of leasing to the lessor or lessee in accordance with the terms of the purchase and sale agreement.

In addition, the seller may simultaneously act as a lessee or a lessee within the same leasing relationship. In this case, the transaction will involve two persons.

Typically, leasing services are provided by specialized leasing companies that have sufficient funds to invest in leased assets. In Russian practice, as a rule, leasing companies are created on the basis of large banks, on an industry basis, or with the participation of government agencies.

A leasing transaction usually involves several subjects:

- lessor- an individual or legal entity that, at the expense of borrowed or own funds, acquires property in the course of a leasing transaction and provides it as a subject of leasing to the lessee for a certain fee, for a certain period and under certain conditions for temporary possession and use with the transfer or without the transfer to the lessee of the ownership of the subject of leasing.

- Lessee - natural or legal person who

in accordance with the leasing agreement is obliged to accept the object of leasing for a certain fee, for a certain period and under certain conditions for temporary possession and use in accordance with the leasing agreement.

property seller(supplier) - an individual or legal entity that, in accordance with the contract of sale with the lessor, sells to the lessor within the stipulated period the property produced (purchased) by him, which is the subject of leasing. The seller (supplier) is obliged to transfer the object of leasing to the lessor or lessee in accordance with the terms of the contract of sale.

Bank (or other credit institution), providing funds for the acquisition of the subject of the contract.

In the leasing services market, special subjects can also be distinguished, such as:

- Insurance companies that insure all kinds of risks arising from a leasing transaction: insurance of the lessor's property, loans provided to the lessor by a credit institution, against possible risks of non-payment, and much more.

- Russian Association of Leasing Companies (“Rosleasing”), a non-profit association of leasing companies, banks and other enterprises engaged in leasing, carrying out:

a) coordination of the activities of the organizations included in it, and the pooling of their funds for the implementation of joint mutually beneficial projects;

b) development, together with government bodies, of strategic directions and programs for the development of leasing in Russia;

c) preparation of draft legislative acts;

d) participation in the work of international associative public organizations.

Any of the subjects of leasing can be a resident of the Russian Federation, a non-resident of the Russian Federation, as well as a business entity with the participation of a foreign investor, operating in accordance with the legislation of the Russian Federation.

The study of the state of financial leasing in developed countries allows us to highlight main groups of leased equipment:

Transport (transport aircraft, cars, ships, railway cars, etc.)

Communication equipment (radio stations, satellites, mail equipment, etc.)

Agricultural equipment

Construction (cranes, concrete mixers, etc.)

3. Forms, types and types of leasing.

According to Russian legislation, there are 2 main forms of leasing: interior And international.

In case of internal leasing, the lessor, the lessee and the seller (supplier) are residents of the Russian Federation. Internal leasing is regulated by the legislation of the Russian Federation.

When carrying out international leasing, the lessor or lessee is a non-resident of the Russian Federation.

If the lessor is a resident of the Russian Federation, that is, the subject of leasing is owned by a resident of the Russian Federation, the international leasing agreement is governed by the legislation of the Russian Federation.

If the lessor is a non-resident of the Russian Federation, that is, the subject of leasing is owned by a non-resident of the Russian Federation, then the international leasing agreement is governed by federal laws in the field of foreign economic activity.

In addition, the Federal Law “On Leasing” regulates 3 main types of leasing:

long-term leasing- leasing for three or more years;

medium-term leasing- leasing, carried out within one and a half to three years;

short-term leasing- leasing, carried out for less than a year and a half.

Currently, in the economic practice of developed countries, various types of leasing are used, each of which is characterized by its own specific features. The most common are:

operational (service) leasing (operating lease)

Financial (capital) leasing (Financial lease)

Returnable leasing (sale and lease back)

Shared leasing (with the participation of a third party) (leveraged lease)

direct leasing

sub-lease

All existing types of such agreements are varieties of two basic forms of leasing - operational or financial. In Russia, the Federal Law “On Leasing” regulates three main types of leasing: operational, financial and returnable (in fact, it is a type of financial leasing). But, nevertheless, I propose to consider the most common types of leasing in more detail.

· operational (service) leasing

Operational (service) leasing is an agreement on current lease. As a rule, the term of such an agreement is less than the full depreciation period of the leased asset. Thus, the rent stipulated in the contract does not cover the full cost of the asset, which makes it necessary to lease it several times.

The most important distinguishing feature of operational leasing is the right of the lessee (tenant) to early termination of the contract. Such agreements may also specify various installation and ongoing maintenance services for the leased equipment. Hence the second, often used name of this form of leasing - service. In this case, the cost of the services provided is included in the rent or paid separately.

The main objects of operational leasing include rapidly obsolete types of equipment (computers, copying and duplicating equipment, various types of office equipment, etc.) and technically complex, requiring constant service (trucks and cars, airliners, rail and sea transport).

It is easy to see that, in general, the terms of operational leasing are more beneficial for the tenant. In particular, the possibility of early termination of the lease allows you to get rid of obsolete equipment in a timely manner and replace it with more high-tech and competitive equipment. In addition, in the event of adverse circumstances, the tenant can quickly stop this type of activity by returning the relevant equipment to the owner ahead of schedule, and significantly reduce the costs associated with the liquidation or reorganization of production.

In the case of the implementation of one-time projects or orders, operational leasing relieves the need to purchase and subsequently maintain equipment that will not be needed in the future.

The use of various services provided by the lessor or equipment manufacturer often reduces the cost of ongoing maintenance and maintenance of the relevant personnel.

Disadvantages of operational leasing: higher than with other forms of leasing, rent; requirements for making advances and prepayments; the presence in the contracts of clauses on the payment of penalties in case of early termination of the lease; other conditions designed to reduce and partially compensate for the risk of property owners.

· financial (capital) leasing

Financial (capital) leasing a long-term agreement that provides for the full depreciation of the leased equipment at the expense of a fee paid by the tenant.

Since such agreements do not allow for the possibility of early termination of the lease, the correct determination of the amount of the periodic payment provides the owner with full reimbursement of the costs incurred for the acquisition and maintenance of the equipment, as well as the required rate of return. With this form of leasing, all costs for the installation and maintenance of the property are usually borne by the tenant. Often these agreements are tenant's right to buy property after the expiration of the contract about preferential or residual value(such a cost may be purely symbolic, such as $1).

Unlike operational financial leasing significantly reduces the risk of the owner of the property. In fact, its terms are largely identical to agreements concluded when obtaining long-term bank loans, since they provide for the full repayment of the cost of equipment (loan); payment of a periodic fee, including the cost of the equipment and the income of the owner (loan payment - the main and interest parts); the right to declare the tenant bankrupt in case of his inability to fulfill the agreement, etc.

The objects of financial leasing include real estate (land, buildings and structures), as well as long-term means of production.

Financial leasing serves as the basis for the formation of two other forms of long-term lease - returnable and shared(involving a third party).

· leaseback

Leaseback is a system of two agreements in which the owner sells the equipment to the other party while concluding a long-term lease agreement with the buyer. Commercial banks, investment, insurance or leasing companies usually act as buyers here. As a result of such an operation, only the owner of the equipment changes, and its user remains the same, having received additional funding at its disposal. The investor, in fact, lends to the former owner, receiving ownership of his property as security. Such operations are often carried out during a business downturn in order to stabilize the financial position of enterprises.

· shared leasing (with the participation of a third party)

Shared leasing is another type of financial leasing that involves the participation of a third party in the transaction - an investor, which is usually a bank, insurance or investment company. In this case, the leasing company, having previously concluded a contract for the long-term lease of some equipment, acquires its ownership, paying part of the cost at the expense of borrowed funds. As security for the received loan, the acquired property (as a rule, a mortgage is issued on it) and future lease payments, the corresponding part of which can be paid directly by the tenant to the investor, are used. At the same time, the leasing company enjoys the benefits of a tax shield that arises in the process of depreciation of equipment and repayment of debt obligations. The main objects of this form of leasing are - high-value assets such as mineral deposits, mining equipment, etc.

· direct leasing

With direct leasing, the tenant enters into an agreement with the leasing company to purchase the required equipment and then lease it to him. Often a lease agreement can be entered into directly with the manufacturer (i.e. directly). companies. For example, the leaders of the world automobile market - the concerns "Daimler-Chrysler" and BMW are the founders of a number of leading leasing companies, through which they sell their products in many countries of the world.

· subleasing

Subleasing is a special type of relationship that arises in connection with the assignment of the rights to use the subject of leasing to a third party, which is formalized by a subleasing agreement.

In case of subleasing, the person carrying out subleasing accepts the object of leasing from the lessor under the leasing agreement and transfers it for temporary use to the lessee under the subleasing agreement. According to the Federal Law “On Leasing”, the assignment by the lessee to a third party of its obligations to pay lease payments to a third party is not allowed.

When transferring the subject of leasing to subleasing, the written consent of the lessor must be obligatory.

International subleasing, which is a type of international leasing, is also regulated by the Federal Law. A distinctive feature of international subleasing is the movement of the leased asset across the customs border of the Russian Federation only for the duration of the subleasing agreement.

In a sub-lease, the main lessor obtains a pre-emptive right to receive rental payments. The contract usually stipulates that in the event of bankruptcy of the third unit, the rent goes to the main landlord.