«Pacta sunt servanda» - agreements must be kept
(Latin Proverb)

Leasing Disputes

Leasing nowadays is carried out widely and getting more and more popular in the Russian Federation. First of all, it is due to the fact, that leasing schemes of acquisition of the property look very attractive and offers many opportunities for optimization and minimization of tax payments on legal grounds. «OURS» Arbitration Law Firm has a vast positive experience of legal representation in this type disputes at Arbitrary Courts in different arrears of Central Federal District.

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The expediency of a leasing transactions for the leasing company is in getting profit by taking the Commission and the risk premium.

At the same time, risks of the leasing company are reduced it has the rights of propriety for the property, rented in the lease; as well as strictly targeted use of funds, and insurance of the property for leasing.

As for the lessee, the advantage of the leasing contract is the possibility of immediate possession of the equipment required by the Company and paying its cost actually in installments.

At the same time, the lessee has the right of the buyer, provided for by the Civil Code of the Russian Federation, for example, claims to the seller for quality, scope and timing of delivery of the goods.

One more positive moment for a lessee on making a leasing contract is the possibility to reject the lease and return the object of the lessor, which is not possible when obtaining a loan.

For the lessee leasing is also far more preferable to a Bank loan, as it is required only to confirm the existence of sufficient funds to cover lease payments. Leasing allows for the lessee to renew capital funds, to form the technical basis of production for new products, paying for the acquired assets as of the receipt of income from which is produced with the help of this property products.

From the point of view of tax legislation, all the leasing payments are classified as cost, which relieves the lessee from the tax on profit. Besides, the lessee does not pay the leasing object property tax, as before the end of the lease agreement the property is a property of the leasing company.

The leasing company, in its turn, has the right to apply the coefficient of accelerated depreciation, which allows her to minimize the tax burden.

First of all, it is necessary to remind, that under the leasing agreement we mean an agreement, in accordance with which the lessor acquires the property indicated as the subject of leasing from a designated seller and provides the lessee with this object in temporary possession and use with or without the transition to the lessee of the right of ownership of the leased asset.

At the stage of making the contract of lease, special attention should be paid to the coordination of the essential conditions of the contract, namely the subject of leasing, the timing of the equipment delivery, schedules of leasing payments.

And more so, the leased asset must be defined so, that you can specifically the property subject to transfer to the lessee. Otherwise, the lease agreement is deemed not to be concluded. Which is also confirmed by the current judicial practice.

In the process of the leasing agreement execution, at the request of the lessor Finance lease contract can be terminated, if a lessee uses property with a material breach of the agreement, substantially worsens the property or more than two times in succession upon the expiration of the contract term of payment shall not make the rent.

Hence, the aforementioned grounds to allow the lessor in accordance with the legislation of the Russian Federation to address to court with the claim to collect the debt, which could eventually lead to bankruptcy of the debtor. As a rule, the arbitration court renders a decision on the collection of not only the amount of debt, but also all legal costs. Among other things, in case of the impossibility for parties to come to the agreement on the forfeit, the court shall order to the collect fines for each day of the delay of payment in accordance with the obligation.

In his turn, the lessee may also apply to the court with a claim for prescheduled cancellation of the contract in the following cases: if the lessor does not provide the property for use to a lessee or creates obstacles to the use of property in accordance with the terms of the contract or purpose of the property, if the property by virtue of circumstances for which the lessee is not responsible, is in a condition unsuitable for use, if the lessor does not carry out the duty of the overhaul, if the property was to be transferred to the seller the lessee, but is not delivered within the established period to the circumstances for which the lessor is responsible.

Upon the termination of the leasing agreement, the lessee shall have the right to demand from the lessor the return listed in accordance with the schedule of leasing payments as part of the purchase price of the property. Moreover, the obligation of the lessor to return part of the money arises even when the redemption price of the parties is not installed. In this case the court should proceed as provided by Article 424 of Civil Code of RF, according to which the redemption should be considered as the price which under comparable circumstances is usually charged for similar goods. The lessee shall be subject to be paid in return the part of the redemption price.

Until recently the position of the courts has been such, that the return of advance payment upon termination of the contract was impossible. The court considered that the lease payment is common and is not divided into components. It was also believed that the leasing payments in full composition shall be paid for the use of property.

At present the judicial practice has changed since the court tends to extract the value of the property from the leasing payments, and in case if the property is returned to the leasing company on the cancellation of the contract, the court may take a decision on the return of the advance payment.

The contract of financial rent (leasing) as well as any other deal involves a certain degree of risk for each of the parties in the leasing relations. Not every small or medium enterprise today could withstand the demands of banks to their borrowers. In the meantime, a leasing company is a real alternative to a Bank credit.

The obvious and indisputable advantage is that it has concluded a leasing contract, the lessee will pay the amount comparable with rent payments, but over the years is to become the rightful owner of the leased object.

Summing up, one can say that the leasing market continues its development due to the essential advantages over other methods of acquisition of property for business needs.

Besides, there are all preconditions for the Finance lease to be an effective and profitable tool for a business to gain the possibility of using the property of any size without paying at once large one-time costs.

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