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.
Allocation of Economic Ownership in Germany by Due Finance, Duesseldorf Germany, [email protected]
I. General Information In the role of leasing providers for leasing models, private capital investors also strive for tax advantages for the construction and operation of communal facilities and the improvement of net yields. The advantages consist of the reduction of the income tax (corporation income tax, and possibly the trade income tax) through the immediate deduction of starting costs and depreciation (depreciation for wear and tear or increased depreciation, additional special depreciation). If a taxable profit is the result of the sale of the object after the term of the lease has expired and concerns company-specific capital investments, interest advantages and a possible tax savings (in case of the income tax) might occur due to the reduced taxation of the sales profit (at half the tax rate). This special tax rate has been repealed in 1999. These tax advantages will only be brought about if the leasing object (the communal facility) is ascribed to the private capital investors as a leasing provider (usually through a partnership or joint venture). This requires that the partnership (in the legal form of the KG mostly a fund company) or joint venture in the role of leasing provider is not only the civil owner but also the economic owner of the leasing objects.
II.Economic Ownership According to the trade and tax laws and regulations, economic property is indicated in the case of the person who has possession of the object; the substance and the profit of the assets (objects) have to have been transferred permanently and completely to this person. The issue of economic ownership (which is not of a leasing-specific nature) depends on the economic point of view; the decisive criteria are the contractual agreements between lease provider and lease taker, as well as their actual implementation and type of leasing object (the communal facility) and the utilization by the lease taker (by the municipality).
III.General Allocation Principles For the question whether after the contract has been arranged, economic ownership can be assumed in the individual case for the lease provider (fund company, object company), the general principles (in the so-called leasing decrees) issued by the tax authorities for the area of communal leasing are to be applied as well. According to these decrees, the following is valid:
1. For fully amortized contracts (lease provider receives his entire investment costs in full over the term of the irrevocable basic lease using the lease rates), the lease decree issued by the finance ministers from March 21, 1972 (BStBl. I 1972, 188) for land and buildings and the lease decree issued by the finance ministers from April 19, 1971 (BStBl. I 1971, 264) for movable assets, as well as the corresponding decrees of the uppermost financial authorities of the German federal states applies.
2. For partly amortized contracts (leasing rates during the basic lease term only partially cover the investment costs), the lease decree issued by the finance ministers from December 23, 1991 (BStBl. I 1992, 13) for land and buildings and the lease decree issued by the finance ministers from December 22, 1975 (tax decree in the form of an index EStG ё 6, para 1, no. 45) for movable assets, as well as the corresponding decrees of the uppermost financial authorities of the German federal states applies.
IV. Special Leasing If the lease object concerns an asset which is specially designed to fit the situation of the lease taker and which - after the basic lease term has expired - is only of regular economic use to the lease taker, then the lease taker is to be considered the economic owner right from the start, regardless of the contract layout and agreement. In this case, a special lease exists. Special leases are to be assumed especially if a change of lease taker (user/operator) for the lease object is unthinkable (lack of third party usability factor) due to its specific characteristic or location, and if the assets cannot be used by another lease taker without conversion and renovation measures or restructuring, respectively. The so-called third party usability factor has to be denied if a change of the lease taker (user) or of another type of purchaser, who could also use the object in an economic manner, seems to be out of the question. Special leasing is always indicated if a market for such assets does not exist and thus a change of lease taker seems out of the question after the lease contract has been settled. In such a case, the lease taker inevitably takes over the lease object (also according to civil law aspects) after the term of the basic lease has expired, because another purchaser is unthinkable (especially if - according to the applicable law - the communal facility fulfills a sovereign task, which is a not privatizing task in connection with the citizen).
Updated 26 May 1999