Юридические документы о лизинге.
Проект документов о лизинге учрежден 01-10-1999 ; редакция от 01-11-2001.
Международная лизинговая энциклопедия.
The International Leasing Encyclopedia by Steven Gilyeart.
Энциклопедии не было в интернет последние полтора года, но это не означает, что ее нет вообще. я взял на себя смелость разместить на этом сайте всю подборку статей (собственно энциклопедию), с указанием адресов электронных почт авторов материалов и редактора. Материал на английском языке.
Open-End Vehicle Leases:
What is a True Lease for US Tax Purposes?
by Paul R. Doyle, CPA, Doyle, Hull & Gregory, CPAs, Inc., Pasadena, California. Ph. 1.626.577.2925
There still seems to be confusion as to what leases will qualify as a true lease for tax purposes. Recently, the Georgia NVLA (National Association of Vehicle Lessors) chapter asked me to get involved in an issue with a Georgia CPA who was telling his lessee business clients that an open-end lease would not be treated as a lease on the lessee's tax return. He was not aware of the TRAC clause rules and mistakenly advised these lessees that they would have to depreciate the actual cost of the unit and take an interest expense deduction based on part of their lease payment. Subsequently, I have talked to several lessors who also were not aware of the TRAC clause rules that apply to open-end leases to ensure true lease treatment for tax purposes. These lessors were not utilizing the correct language in their open-end lease document to satisfy the tax requirements. In this article I will discuss the background and more recent developments in this area. The issue of whether a lease does or does not qualify for tax treatment as a lease centers around the concept of ownership and, more specifically, the risks of ownership. The taxpayer who has the risks of ownership is the one who depreciates the cost of the unit and, before 1986, was entitled to the investment tax credit (ITC). A lessor who meets the tests of ownership will depreciate the unit and the lessee will deduct the lease payments, along with all of the other costs of operating the unit, to the extent of business use. If the lessor does not meet the tests of ownership, the transaction will be considered a conditional sales contract and the lessee would depreciate the cost of the unit and would need to determine an interest cost based on the terms of the lease agreement. Even though ITC was repealed by the 1986 Tax Act, and therefore is no longer a factor in the analysis, both lessors and lessees generally want the lease transaction to qualify for true lease treatment. With true lease treatment, lessors can help their tax situation by depreciating the cost of the unit. The luxury car depreciation limits do not apply to the typical lessor; however, if the lessee takes the depreciation, their deduction is reduced by the luxury car rule limitations. Obviously, if a lessee takes a lease payment deduction on a vehicle which is classified as a luxury car they are subject to the lessee luxury car rules; but these rules are not overly punitive compared to the depreciation limitations. The typical closed-end lease to both business and consumer users is not an issue. It qualifies as a true lease because the lessor retains the risk of ownership and the lease transaction is merely a long term rental agreement much like a similar real estate transaction. However, a lease that transfers ownership at termination or contains a nominal purchase option, i.e. one dollar, removes the risk from the lessor because he obviously will recover his full cost plus profit over the lease term and has little or no risk beyond the lease term. The lease can contain a purchase option and still qualify for true lease treatment as long as the option is not nominal; I recommend an option of 20% or greater based on the original cost of the unit. Open-end leases have been the subject of IRS scrutiny over the years. The clause in the lease agreement that makes the lease open-ended is called a terminal rental adjustment clause (TRAC). This clause removes some or all of the lessor's risk because the lessee is required to make up some or all of the difference between the residual value and the actual market value at the termination of the contract. The IRS argued that the TRAC transferred the risk of ownership to the lessee and were successful in this argument in the Swift Dodge case which was decided by the 9th District Court of Appeals in 1982. Open-end leases to business users got a reprieve from Congress in the 1982 Tax Act. If a lessor meets certain requirements, an open-end lease to a business user will qualify as a true lease for tax purposes. The requirements are that the lease otherwise qualifies as a tax lease, i.e. it does not contain a nominal purchase option, and the lessee shall not be treated as the owner based on an agreement. A lease agreement meets the requirements if it contains a separate written statement separately signed by the lessee under which the lessee certifies under penalty of perjury that: 1) the lessee intends the use of the vehicle to be more than 50% in the lessee's trade or business, and 2) lessee further has been advised that lessee will not be treated as the owner of the vehicle for federal income tax purposes. This certification is frequently part of the lease contract but some lessors have made it an addendum to the lease agreement. Additionally, the lessor must have no knowledge that the lessee's certification is false. The TRAC rules have been incorporated into all subsequent tax acts. As previously stated, this legislation only applies to business use open-end leases. Consumer use open-end leases are still susceptible to a successful IRS attack. To ensure true lease treatment, consumer leases should utilize a closed-end contract that does not contain a nominal purchase option.
Updated 22 February 1999
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