Asset keeper – property basis of a business
Protecting the property complex of a business, along with ensuring tax security, is a fundamental task to be solved in the course of building a business model and structuring a group of companies. The risk of hostile takeovers, foreclosure on property by counterparties or regulatory authorities (including tax) always exists. Moreover, the more profitable and successful the business is, the more real the risk of its loss becomes. Therefore, the adoption of preventive measures aimed at ensuring maximum security of property, and indeed the business as a whole, is one of the primary goals of building a group of companies.
Along with ensuring property safety, a competent choice of the owner of the property and contractual instruments that mediate the operation of the property within the framework of the business model allows you to maximize the level of profit from the use of the property and make the property management structure transparent and understandable, primarily for the business owners themselves.
As a rule, in order to ensure the integrity of the property complex and its safety, property is transferred to a special entity – the “Custodian of assets”, which is charged with ensuring the safety of the property and its maintenance in a condition suitable for operation. The “Asset Keeper” also concludes on its behalf contracts for the purchase of utilities, electricity and other “operating” contracts.
The absence of risky operations, relationships with “problem” counterparties makes it practically impossible to make claims to the “Custodian of assets” and, as a result, to the property complex belonging to it.
In addition, a transparent system of ownership and use of property makes it possible to exclude cases of cross-ownership of property by different enterprises of a group of companies (in the case of unsystematic distribution of property). If you need to use this property as security for a loan from a major operating company, ownership of the ownership of it by another person, as a rule, does not prevent this.
Practice shows that the Group of companies without any additional effort receives loans (and even SRO tolerances). Since it is obvious to banks that the total value of the property of the entire Group is significantly higher than the value of the assets of the borrowing company. Therefore, the rating of the potential borrower increases significantly, which entails an increase in the likelihood of obtaining a loan and increases its maximum possible amount.
When creating an “Asset Keeper”, three main issues need to be addressed:
Choice of tax regime
Choosing a way to use property
An “custodian of assets”, that is, an entity that will possess property under the right of ownership, can become an individual or legal entity, as well as a group of individuals (both individuals and legal entities). Each of these options has its positive and negative points.
When deciding on the choice of a subject of ownership, it is necessary to take into account not only the final “price” of cash, but also long-term plans for the acquisition of new assets, the number of intended users of the property and the nature of relations with them.
So, ownership of all property by an individual in the status of individual entrepreneur is without a doubt the most convenient from the point of view of control over its use. It also makes it possible to use the received funds with minimal tax consequences, unlike a legal entity. So, if the property is owned by a legal entity, the most understandable and logical option of withdrawing funds from the lease will be the payment of dividends to the individual founder, which entails the obligation to accrue and pay personal income tax in the amount of 13%.
If you want to sell the property, being an individual entrepreneur – “custodian of assets”, then the only legal way to do this is to make a purchase and sale transaction with tax on income from the sale value of property in accordance with the applicable taxation system. Letter of the Ministry of Finance of Russia dated February 8, 2019 No. 03-04-05 / 7685, as well as VAT (if the sale value exceeds 150 million rubles).
It should be noted that in 2019, the Legislator extended to individual entrepreneurs a privilege exempting income from the sale of vehicles and housing, the tenure of which exceeds 3 and 5 years, respectively, from paying income tax on individuals.
In addition to privileges on the term of ownership, the Tax Code of the Russian Federation, by analogy with ordinary individuals, granted the individual entrepreneur the right to receive property deduction for the sale of entrepreneurial transport and housing, in the amount of the cost of its acquisition. Moreover, if the costs of acquiring these types of property were previously taken into account in the taxation of individual entrepreneurs, then the property deduction will be the difference between actual expenses and the amount taken into account in taxation.