Transport services in the Group of Companies
In the issues of our mailing list, we have repeatedly written about the separation of the company – Custodian of Assets in order to protect the significant property of the group of companies; on the separation of a manufacturing company, etc. Today we will talk about the proper organization of the “transport” function in a group of companies, namely, what opportunities for tax and property security can be provided by building this function in the light of our concept of a Secure Business Platform®.
Own significant property, which in the overwhelming majority is also transport, often belongs to a separate entity of the group, which provides maximum protection against the risks associated with entrepreneurial activity (assets custodian). The reasons for this are obvious and do not require separate explanations.
However, transport, including specialized equipment, is a source of increased danger. For this reason, it is better if the owner of the vehicle is a legal entity, and not an individual. In the event of harm to life and health, the liability of an individual entrepreneur remains even after the individual entrepreneur is declared insolvent (bankrupt) in the prescribed manner (Article 25 of the Civil Code of the Russian Federation). While after the bankruptcy of a legal entity, there can be no such obligation.
At the same time, such risks can be eliminated by transferring the transport for use to another person (in principle, the custodian of assets does not perform operational functions, this is his role).
The question is: to whom and how to transfer vehicles in such a way as to obtain both the maximum possible tax savings (remembering the need for a business purpose of any business transaction) and ensure managerial efficiency?
In general, there are a lot of options for building the transport sector in the group of companies. The choice of each of them depends on a number of reasons:
the amount of expected revenue of the transport company will affect the application of DOS or special regimes. The choice of a special regime is also influenced by the number of employees (for the application of the simplified tax system and PSN) and vehicles (for PSN);
types and amount of expenses of the transport company – it is more interesting to leave them to a VAT-free or VAT-free company, etc.;
who owns the vehicle.
Here are some examples
The transport is registered to the custodian of the assets. This property (vehicles/specialized equipment) is used to provide transport services (services of special equipment) both to entities in the group of companies and to third parties.
Option to build this block in a group of companies:
Transport is transferred under a lease agreement to the related Company “Transport Company”. The staff of this particular company should include drivers, freight forwarders, mechanics serving transport and other persons.
The choice of the lease agreement in this case is determined by the following circumstances:
When transferring vehicles for rent, the costs of maintaining the leased property (current and major repairs), as well as the costs of its insurance, including liability insurance, as well as the costs arising in connection with its operation, are borne by the lessee, that is, Transport Company LLC “; Art. 644 of the Civil Code of the Russian Federation
Responsibility for harm caused to third parties by the vehicle, its mechanisms, devices, equipment, is borne by the tenant, which provides protection for the Asset Custodian. Art. 648 of the Civil Code of the Russian Federation
So, for example, OOO Tenant engaged drivers to drive cars that this OOO owned on the basis of a lease agreement without a crew. In one accident, the culprit was the driver of the rented car. As a result, the court recovered in favor of the injured party the damage caused from LLC “Rendator”, and not from LLC “Owner”. 88-13446/2020).
In turn, the transport company provides transport services to “their companies” or third parties. Variants of contracts mediating these relations:
vehicle rental agreement with a crew (operator),
contract for the provision of transport services,
contract for the provision of forwarding services.
The choice of a specific type of contract should be based on real business processes taking place in a group of companies. The determining condition is the necessary volume of document flow in each contract.
The group of companies has a “dispatch company” that directly interacts with both customers and third-party transport organizations and individual entrepreneurs involved in the provision of services. The need to create a “dispatching company” is dictated by Russian realities: today, the risks that the counterparty company will suddenly turn out to be a “one-day” still remain, therefore, business, as a rule, is forced to close a company with it, which will not suffer much from negative results tax audit for this counterparty.