With that in mind, let’s take a look at how financial leasing will be affected on 1 January 2014 by an approaching tax amendment.
Czech private law will still lack a definition of financial leasing even after the new Civil Code and the Corporations Act are adopted, but since a precise definition is important for taxation purposes, it will be contained in an independent provision of the Income Tax Act as of 1 January 2014.
The new Income Tax Act defines financial leasing as the leasing of property (tangible property only) by an owner to a user in return for payment where the parties agree that the owner shall be obliged to transfer and the user to accept the title to the property for a purchase price or free of charge after the agreed term expires (mandatory purchase). Alternatively, the parties may agree that the user is free to choose whether to acquire the asset or not (voluntary transfer).
Intangible property is not included in the definition. Where a financial lease concerns an intangible asset, no special restrictions will apply to the tax deductibility of the payments and the tax regime will primarily follow the accounting regime. If the costs – the financial leasing payments – comply with the fundamental requirements for tax deductibility, i.e. if they are spent to generate, ensure and maintain income, taxpayers should not have any problems including them in their tax base.
Therefore, the difference between financial leasing and a standard lease or rental agreement is that a financial lease includes the user’s commitment or, more often, an option right (subject to meeting contract terms and conditions) to acquire ownership of the asset. The major goal of financial leasing is to acquire property, a right or any other property-related value by using third party financing. The title is held by the financial leasing provider until the property transfer, which differentiates financial leasing from other forms of property acquisition using third-party financing such as loans.
Since financial leasing differs from an operating lease, that fact is clearly stipulated in the provisions on financial leasing. If the agreement is terminated early and title is not transferred to the user, it will be considered an operating lease from the date it was concluded.
As regards the tax deductibility of rent (now a “financial leasing charge”), no material changes will arise on 1 January 2014. The requirements for the minimum term of financial leasing and the requirements for the amount of the purchase price remain unchanged. Moreover, restrictions on financial leasing contracts terminated early continue to apply. All these restrictions were included in the Income Tax Act in order to equalize purchase and hire-purchase transactions. Therefore, at present it is not possible to take advantage of including each installment payment as a taxable expense as opposed to writing off the entire purchase price. And nothing will change in this respect next year either.
The definition of financial leasing is important not only for income tax purposes but for real estate acquisition tax purposes as well (which should replace the current real estate transfer tax as of 1 January 2014). Real property acquired through a financial leasing agreement will be exempt from real estate acquisition tax. The Income Tax Act stipulates what is deemed to constitute financial leasing in these circumstances. Even the right to build can be leased via a financial agreement (to apply the exemption from real estate acquisition tax) even though the definition of financial leasing excludes such right for income tax purposes.