Placing advertising on vehicles is prohibited. Advertising on vehicles

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• An additional source of income for a transport company providing third parties with the opportunity to place advertisements on vehicles(cars, buses, trams, trolleybuses). What agreement should be concluded in this case? What are the features if transport company is not the owner of his park? What are the rules for taxation of income received?

According to paragraph 1 of Art. 20 of the Law on Advertising*(1) advertising on a vehicle is carried out on the basis of an agreement concluded by the advertiser with the owner of the vehicle or a person authorized by him or with a person who has another proprietary right to the vehicle. Let's consider who is the parties to the agreement and what its terms are.

The advertiser in clause 5 of Art. 3 of the Law on Advertising names the manufacturer or seller of the product or another person who determined the object of advertising and (or) the content of the advertisement. At the same time, in addition to the advertiser, participants in the advertising process are an advertising producer (a person who completely or partially reduces information into a form ready for distribution in the form of advertising) and an advertising distributor (a person who distributes advertising in any way, in any form and using any means).
Thus, according to general rule The advertiser is only required to determine the content of the advertisement, and it is not his responsibility to print posters, stick them on the surface of the vehicle body, or ensure the presence of the vehicle on city roads.

Vehicle owner

The simplest option is when the vehicle is owned by the company. However, this is not always the case. In accordance with paragraph 1 of Art. 216 of the Civil Code of the Russian Federation, real rights, along with the right of ownership, are the right of economic management and operational management of property. Thus, if a transport enterprise has the organizational and legal form of a unitary enterprise and owns vehicles under the right of economic management, it is with the enterprise that the advertiser will enter into an agreement. There are no restrictions requiring a unitary enterprise to agree with the owner of the property on the conclusion of such an agreement, the federal law dated November 14, 2002 N 161-FZ “On State and Municipal Unitary Enterprises” does not contain *(2). At the same time, in some regions, public legal entities take the initiative and offer transport companies under their jurisdiction to enter into agency agreements with a specialized enterprise in the field of advertising placement * (3). It should also be remembered that the owner of the property has the right to set tariffs for services provided by unitary enterprises.
It happens that cars are owned by other persons, and the transport company uses them on lease. Since the lease right is not real, but obligatory (since it is based on an agreement), the lessee has no right to enter into an agreement to provide the opportunity to place advertising on the leased vehicle, unless the lessee has been specifically authorized to do so by the owner of the car.

The legislation does not say what conditions the contract concluded between the owner of the vehicle and the advertiser should contain, which provides a wide field for the “creativity” of business entities.
The defining circumstance is that the transport company does not develop advertising poster layouts or install advertising structures. This responsibility rests directly with the advertiser or advertising agency. Accordingly, the competence of the transport enterprise is exclusively to provide the interested party (customer under the contract) with the opportunity to place advertising on the surfaces of the vehicle body.
Traditionally, the parties call such agreements lease agreements for the surface of the vehicle body. However, in reality, the legal relations of the parties are not regulated by the norms of Chapter. 34 "Rent" of the Civil Code of the Russian Federation. The fact is that a lease agreement always implies the temporary alienation by the owner of the right to use the thing leased. Meanwhile side surface the vehicle body is not an independent object civil rights, which could be transferred for use separately from the vehicle. Therefore, an agreement on the basis of which a third party, for a fee, gets the opportunity to place advertising on the surface of the body of someone else’s car, is not a lease agreement, but at the same time does not contradict the Civil Code of the Russian Federation. The relations of the parties to this agreement are governed by general provisions about obligations and contracts, as well as the terms of the contract itself. Such clarifications were given by the Presidium of the Supreme Arbitration Court in paragraph 1 Information letter dated 11.01.2002 N 66 regarding the placement of advertising on the roof of a building, but they are completely valid for placing advertising on the surfaces of the vehicle body.
So, since the legislation does not offer special regulation for such agreements, in order to avoid possible disagreements, even at the stage of concluding an agreement, the parties must provide for all the necessary conditions. Thus, it is advisable to agree on the following points: vehicles on which advertising will be placed, routes of their movement, methods and procedures for placing advertising information (applying an advertising image on the body or installing a light box on the roof), the period for placing advertising, the obligation of the parties to maintain the advertising image (or advertising structure) in proper condition, the procedure and timing for dismantling the advertising structure or image, responsibility for improper execution responsibilities.
Previously, the owner of the vehicle had to submit an agreement on advertising placement to the traffic police during a state technical inspection *(4), however, with the entry into force of Order of the Ministry of Internal Affairs of the Russian Federation dated December 1, 2008 N 1048 on January 10, 2009, this rule lost force.

For a transport company this is not an idle question. The point is that Art. 14.3 of the Code of Administrative Offenses of the Russian Federation establishes administrative liability for violation of advertising legislation. At the same time, penalties in the form of fines (for legal entities from 40,000 to 500,000 rubles) apply to the advertising distributor in relation to violation mandatory requirements listed in paragraph 7 of Art. 38 of the Law on Advertising. Let us analyze the practice of applying the Law on Advertising, which, unfortunately, is not numerous.
I would like to draw the attention of readers to the fact that in the Resolution of January 10, 2008 N F09-10877/07-S1, the judges of the FAS UO did not find out what kind of relationship the park had with the advertiser, on the fence of which a billboard with inappropriate advertising was installed alcoholic products. And the park was fined under Art. 14.3 Code of Administrative Offenses of the Russian Federation.
At the same time, for the owner of a hypermarket building, on the facade of which an inappropriate advertisement for an incentive lottery was placed, the lease agreement for space on the facade became a “magic wand” that saved him from administrative responsibility. The arbitrators recognized that the advertising distributor is the tenant of the facade surface, who is also the organizer of the lottery (Resolution of the Federal Antimonopoly Service of the Central District of September 24, 2008 N A09-2711/08-15). Please note that the lease agreement did not specify what type of advertising would be placed on the leased space.
Moreover, if a person who owns a vehicle under one or another property right (or authorized by the owner) enters into an agreement with an advertiser for the provision of advertising services for placing an advertising image on a vehicle and ensuring the movement of the vehicle along agreed routes, then it inevitably becomes an advertising distributor ( Resolution of the Federal Antimonopoly Service of the Eastern Military District dated 05/08/2008 N A43-19927/2007-38-432).
Thus, the system contractual relations still plays important role in determining the status of a transport enterprise as a subject of advertising activities. To avoid application of UTII in terms of the "advertising" component economic activity, responsibilities transport company should be limited only to providing the customer with the opportunity to place advertising information on vehicles. Wording like “the transport company undertakes to place an advertising poster on the back of the bus” indicates its status as an advertising distributor.

Tax obligations

The main question to be answered by a transport enterprise that derives income from advertising on the surface of vehicle bodies is whether it is a UTII payer?

Who is the taxpayer?

According to paragraphs. 11 clause 2 art. 346.26 of the Tax Code of the Russian Federation, the taxation system in the form of UTII can be applied by decisions of representative bodies of municipal districts, city districts, legislative (representative) bodies of state power of cities federal significance Moscow and St. Petersburg regarding this type entrepreneurial activity, like advertising on vehicles. The definition given in Art. 346.27 of the Tax Code of the Russian Federation does not add clarity: placement of advertising on a vehicle entrepreneurial activity of placing advertising on a vehicle, carried out in compliance with the requirements of the Federal Law “On Advertising”, on the basis of an agreement concluded by the advertiser with the owner of the vehicle or a person authorized by him or with a person who has another proprietary right to the vehicle.
It is obvious that, on the basis of such an agreement, activities aimed at generating income are carried out by the owner of the vehicle or a person authorized by him. However, in all cases, must the owner of a vehicle on the body of which an advertisement is placed pay UTII?
We suggest that you refer to the clarifications of the Ministry of Finance. Thus, in letters dated 04/28/2009 N 03-11-06/3/110, dated 03/26/2009 N 03-11-06/3/81, dated 02/20/2009 N 03-11-09/64, the financiers reported that payers of UTII according to this species activities are recognized by organizations and individual entrepreneurs having the right of ownership (use, possession and (or) disposal) of the corresponding vehicles and directly distributing (bringing to consumers) advertising information. As mentioned above, a transport enterprise is not recognized as an advertising distributor if it only provides a third party with the opportunity to place it on the sides of vehicles.
In the letters mentioned above, Ministry of Finance officials add: advertising placement activities carried out on the basis of a lease agreement for the surface of a vehicle or another similar agreement are not subject to transfer to the taxation system in the form of UTII. This means that income from the rental of a vehicle surface is not subject to the single imputed income tax. At the same time, an advertising distributor who does not own or have any other proprietary right of vehicles is not a UTII payer.

What vehicle?

Until 2009 Ch. 26.3 of the Tax Code of the Russian Federation contained an exhaustive list of vehicles, the placement of advertising on which was transferred to the payment of UTII. This year, the legislator made do with the laconic phrase “on vehicles.” What exactly is meant by them, the Ministry of Finance announced in Letter dated November 19, 2008 N 03-11-03/25. So, according to officials, one should look into All-Russian classifier fixed assets (OK 013-94), approved by Decree of the State Standard of the Russian Federation dated December 26, 1994 N 359. Note that the list of vehicles has not been reduced, but has even expanded, for example, due to railway cars, aircraft, motorcycles, scooters and trailers him.

Let us recall that until 2009 in Tax Code the definition of the activity of placing advertising on vehicles, which was subject to transfer to UTII, was formulated differently. In particular, according to the previous edition of the Tax Code of the Russian Federation, only activities related to the distribution of outdoor advertising (placing advertisements on the roofs, side surfaces of the bodies of these objects, as well as installing billboards, signs, electronic displays and other means of advertising) were subject to transfer to a special regime. In numerous clarifications, the Ministry of Finance reported that the activities of posting advertising stickers and posters inside vehicles, placing LCD monitors on which advertising is broadcast are not subject to UTII (letters dated 08/19/2008 N 03-11-05/199, dated 03/17. 2006 N 03-11-04/3/140).
The position of the department has not changed even now. Explaining the innovations of 2009, financiers reported that among the types of business activities transferred to payment said tax, such type of activity as placing advertising inside vehicles is not provided (Letter dated November 19, 2008 N 03-11-03/25).

..................................................
*(1) Federal Law of March 13, 2006 N 38-FZ “On Advertising”.
*(2) An agreement with an advertiser does not imply disposal of property (disposition the right to decide the “fate” of a thing).
*(3) See Order of the Government of St. Petersburg dated December 28, 2007 N 210-rp “On measures to streamline the placement of advertising on vehicles in St. Petersburg.”
*(4) Clause 15.9 of the Rules for conducting state technical inspection of vehicles, approved. Order of the Ministry of Internal Affairs of the Russian Federation dated March 15, 1999 N 190.

Nowadays, more and more organizations use their cars not only as transport, but also as additional method express yourself to the world by putting your own advertising on them or simply your name and contact information. After all, a painted car, standing out from the general flow of cars, attracts the attention of numerous drivers and passers-by - potential clients. In addition, the production and application of automotive applications is quite inexpensive.

Let's see what questions arise from accountants of companies who have already appreciated all the delights of this type of advertising or are just about to resort to it.

Is information about the owner company printed on a car an advertisement?

In law is not an advertisement placement of distinctive signs on a vehicle indicating its ownership by a person Part 4 Art. 20 of the Law of March 13, 2006 No. 38-FZ (hereinafter referred to as the Law on Advertising).

But what should be understood by the words “distinctive marks”? After all, this concept is not disclosed anywhere. In order not to guess, we addressed this question to the capital’s Office of the Federal Antimonopoly Service, because it is the FAS Russia that is the authorized body in the field of advertising and has the right to give explanations within its competence and pp. 1, 6.3 Regulations, approved. Government Decree No. 331 dated June 30, 2004.

Taking into account these clarifications, we have made a table that allows you to determine whether the information printed on the car is advertising or not. Tax accounting for associated costs depends on this, in particular for the development of the sticker layout, their production and application to the car.

To be honest, it is now very rare to find a car with only the name of the company and its address and telephone number on it. Most often, the information posted on the car is of an advertising nature, from the point of view of the FAS. However, given the low cost of producing car stickers (for example, in Moscow average price a three-meter sticker - about 2,000 rubles), you will most likely be able to fully take into account the costs of them in expenses, since they will certainly fall within the 1% standard.

Since the simplifiers have a closed list of expenses taken into account for tax purposes, they can include the costs of “self-promotion” only in the advertising costs of subp. 20 clause 1 art. 346.16 Tax Code of the Russian Federation.

Do I have to pay UTII when advertising on a car?

No, independent placement of advertising about yourself, your goods (works, services), as well as placement of contact information, in particular in transport, is not subject to UTII payment. clause 2 art. 346.26 Tax Code of the Russian Federation; para. 3 p. 1 art. 2 Civil Code of the Russian Federation; Letters of the Ministry of Finance dated June 24, 2010 No. 03-11-06/3/87; Federal Tax Service for Moscow dated February 10, 2010 No. 16-15/013826. After all, self-promotion cannot be considered as a business activity.

Do I need to obtain any permits?

If you want to place contact information or your own advertising on a car that belongs to your organization, then you do not need to fill out any paperwork.

If you plan to use, for example, a rented car for this, then you need Part 1 Art. 20 of the Law on Advertising:

• <или>enter into an agreement with its owner on the use of the surface of the car body for placing advertising or information;
• <или>include a corresponding condition in an existing agreement, for example a lease agreement.

If for placing information or advertising on a car its owner is paid a certain reward, then its amount is taken into account in the standardized advertising costs. And don’t forget: if the owner of the car is a “physicist”, then from the amount of remuneration you need to calculate, withhold and transfer to the personal income tax budget and report to your inspectorate on the income paid x clause 1 art. 226, paragraph 2 of Art. 230 Tax Code of the Russian Federation.

So, accounting for the costs of placing self-promotion on a car should not cause much trouble. But you need to remember this. Besides general requirements requirements for advertising (reliability, integrity, etc.) Art. 5 of the Law on Advertising), when applying information or advertising to a car, you must comply following rules so that the company and its leader are not fined:

WE TELL THE MANAGER

The placement of information or advertising on a car does not need to be coordinated with anyone(in particular, with the traffic police). True, if the car radically (by more than 50%) changes its original color (for example, as a result of painting in the company’s company colors), then, in an amicable way, you need to register this fact with the traffic police within 5 days pp. 5, 6, 24 of the Rules - Appendix No. 1 to Order of the Ministry of Internal Affairs of November 24, 2008 No. 1001, they will make changes to the PTS Appendix No. 2 to Order of the Ministry of Internal Affairs, Ministry of Industry and Energy, Ministry of Economic Development dated June 23, 2005 No. 496/192/134 and in the certificate of registration and Appendix No. 3 to the Order of the Ministry of Internal Affairs of November 24, 2008 No. 1001. But there is no liability for failure to comply with this requirement.

• advertising should not limit the driver's view

Advertising on cars- enough the new kind business for Russia, and therefore many myths and fables have developed around it. Perhaps the most common misconceptions are about the special permitting procedure and the many prohibitions for auto advertising from the state. The existence of such myths is not surprising. The authorities in Russia have always tried to influence all spheres of the economy, and gradually society has developed the opinion that any activity is so heavily regulated that it is better to engage in it semi-legally or not at all. Of course, such an opinion has a right to exist. But we must admit that it is often wrong. And advertising on cars is just such a case. Let's try to debunk the myths about auto advertising!

Myth No. 1. Traffic police officers refuse to carry out technical inspections of cars with advertising. Allegedly, when placing car advertising, a number of documents must be submitted to the traffic police and a special mark must be placed on the vehicle inspection ticket, and the advertising itself cannot occupy more than 50% of the area of ​​the car body. Most often they say that all these requirements are described in Order of the Ministry of Internal Affairs of the Russian Federation No. 410 of July 7, 1998 “On approval of the Instructions on the placement and distribution of outdoor advertising on vehicles.” That is why many car owners ask the question: “Is it possible to place advertising on a car?”

Right! This Order of the Ministry of Internal Affairs lost force in 2007 (Order of the Ministry of Internal Affairs of the Russian Federation dated January 23, 2007 No. 68 “On the repeal of the regulatory legal act of the Ministry of Internal Affairs of Russia”), therefore no registration with the traffic police is required.

Moreover, at the beginning of 2011, the Avtoreklama company made a request to the traffic police regarding the regulation of advertising on cars. The official response says: “Currently, advertising on vehicles is not limited to certain places. Accordingly, transparent and opaque films can be applied to any part of the body.”. However, “the application of transparent or opaque films to the body must allow the actual color of the vehicle to be determined.” Advertising placed on the sides of the car occupies no more than 50% of the body area, which is not a sign of a complete change in its color and cannot cause complaints from law enforcement agencies. And therefore: there is no fine for advertising on cars.

Myth No. 2. Auto advertising requires a special passport. Very often you hear that in order to place advertising on vehicles you must obtain permission from the State Unitary Enterprise “Advertising and Information on Transport”. Allegedly, this department issues an advertising passport for car owners. If such a passport is not available, both the car owner and the advertiser may be seriously fined. It is surprising that many agencies that produce or place advertising on cars not only report such false information, but also offer their services (paid, of course) for obtaining a passport for an advertising space.

Right! No advertising passport is needed! State Unitary Enterprise “Advertising and Information on Transport” received the rights to place advertising in 2002 on municipal transport. State Unitary Enterprise has nothing to do with advertising on private or corporate cars.

Need to know. Advertising on cars is directly regulated by the Law on Advertising (FZ-38 “On Advertising” dated March 13, 2006), or more precisely, by its 20th article, which is called “Advertising on vehicles and with their use.” In order not to comment on the entire article, we will focus on the two most important, from our point of view, points:

1. Clause 1 Art. 20 of the Federal Law “On Advertising” states: “Advertising on a vehicle is carried out on the basis of an agreement concluded by the advertiser with the owner of the vehicle or a person authorized by him or with a person who has another proprietary right to the vehicle.” As we see, federal legislation provides for the conclusion regular service agreement and does not require any licensing or additional permits for advertising on vehicles.
2. Clause 2 art. 20 Federal Law “On Advertising” states: “Use of vehicles exclusively or predominantly as mobile advertising structures prohibited" Of course, we are all annoyed by GAZelles with an advertising billboard instead of a body, which often stand near busy intersections and get in the way normal movement transport. Advertising on cars that are used by their owners for their intended purpose is a completely different matter, i.e. to move around the city. Advertising on such cars does not occupy the entire body area and therefore not prohibited by law. Accordingly, there cannot be a fine for advertising on a car.

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