One of the options is that the owner, having already officially entered the business, can forgive the company's debt in order to increase its net assets. This tool is attractive in that it frees the organization from paying
A contribution to increase net assets (NA) is one of the tools for tax-free transfer of property in a business, enshrined in paragraphs. 3.4 p. 1 art. 251 tax code RF. But like other tools, it has its advantages and disadvantages.
For ease of understanding, we list them:
any member of the company can make a contribution to net assets: a legal entity or an individual, regardless of the size of the share in the authorized capital (for comparison: only a participant with a share of more than 50%) ;
when making a contribution to the NA, there are no restrictions on the subsequent disposal of the property within a year from the date of transfer (limitation of one year, paragraph 11, paragraph 1, article 251 of the Tax Code);
property can be transferred, as well as property and non-property rights (including the right to claim a loan, etc.), having a monetary value;
however, only a participant/shareholder can make a contribution in order to increase the NA (a “subsidiary gift” is not possible - the transfer of property from a subsidiary to the parent company);
this tool is applicable only to business partnerships and companies (JSC, LLC, etc., but not applicable to production cooperatives, business partnerships);
with a contribution to the NA, there is no increase in the authorized capital of the company.
We will consider how this tool can work successfully using the example of the case of experts from the taxCOACH Center for the retail sector. Imagine a business that is conducted within a group of companies. Retail stores are independent legal entities (at the same time, the area of \u200b\u200beach store allows the use of UTII). However, what about the profit of each operating point? You can use the already known contribution to the CA! Retail companies establish a legal entity (let's designate it as an investment center) and contribute the agreed funds from the sale of products as contributions to the property in order to increase the NA. There is no need to pay income tax and the investment center can freely dispose of the participants' money, for example, by investing them in new areas of activity.
Thus, contributions to the net assets of the company are not taxed on income from the receiving party (at the same time, debt in the form of the amount of interest on a loan written off by debt forgiveness, on the basis of paragraph 18 of Article 250 of the Tax Code of the Russian Federation, is subject to inclusion in non-operating income of the debtor organization) one.
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But what happens if a participant, for example, a company on the DOS, transfers not money, but property as a contribution to the NA? Is it taxable this operation VAT? Yes and no. In the sense that the transmitting party (if it is on common system taxation) must recover VAT from residual value property. In this case, the restored value added tax can be included in the costs. But the receiving party will not be able to deduct VAT, since it did not pay money for this property, because a contribution to property is a kind of gratuitous transfer. So you can’t do without a fly in the ointment in a barrel of honey ...
Now let's see what is interesting in using this tool that occurs in litigation.
Judicial practice on challenging tax authorities application of the benefits of paragraphs. 3.4 p. 1 art. 251 of the Tax Code of the Russian Federation is not very extensive. The main thing that the tax authorities pay attention to is the reality of completed transactions. Naturally, in the actions of the parties there should be business purpose which is the improvement of the state of the company. An increase in the value of net assets, an increase in the company's profitability after the "injections" of the founder may just indicate this.
At the same time, the courts pay attention to the reality of the increase in the net assets of the taxpayer. For example, when sending case No. A22-4288/2015 for a new trial to the court of first instance, the cassation court ordered the lower court to examine the accounting and tax documentation of the taxpayer, confirming (or refuting) the actual increase in its net assets, and reflecting this transaction in balance sheet companies for the corresponding calendar year.
In another example, the tax authority challenged the reality of the founder's contribution to net assets, which was claimed to be a claim redeemed from the taxpayer (No. А53-31131/2015). The courts supported the tax authority in that initially the services were provided fictitiously, in order to overestimate VAT deductions, and the accumulated accounts payable were assigned to the founder only for the sake of appearance. Thus, the taxpayer tried to avoid non-operating income in the amount of unclaimed (hopeless) accounts payable.
What if a participant deposits a promissory note from a third party into the CA? At the first stage, there is general rule- the operation of depositing a promissory note in the CA is not subject to income tax, everything is logical. Whereas the further transfer of this bill of exchange by the company to a third party to pay off accounts payable is already subject to taxation (see cases No. A53-20551 / 2015, A41-39593 / 2015): the taxpayer has the right to attribute to expenses for the purpose of taxing profits only the costs of selling the bill.
Another controversial point in practice arose in connection with the transfer by the participant to the company on the basis of paragraphs. 3.4 p. 1 art. 251 of the Tax Code of the Russian Federation of the gratuitous right to use the property belonging to him. As the courts pointed out, supporting the position of the tax authorities, the property to which the right to use was transferred should be accounted for separately from the organization’s own property on an off-balance account (paragraph 2, clause 5, PBU 1/2008, Instructions for the application of the Chart of Accounts). Therefore, this property does not increase the net assets of the organization. In this regard, income from the gratuitous temporary use of the property of a participant (shareholder) should be accounted for as non-operating on the basis of clause 8 of Art. 250 of the Tax Code of the Russian Federation. (See case nos. A66-9803/2015; A50-24058/2015).
Finally, what happens if the founder decides to contribute to the company's NA, but at the time of the actual transfer Money managed to withdraw from the membership? Such a dispute was in judicial practice and ended in favor of the taxpayer! Note that the decision to contribute to property in order to increase the NA was made by the only participant before he left the company. Whereas a contribution of 10 million rubles (in two tranches) was transferred two months after the composition of the participants in the LLC changed.
As the court of first instance pointed out, the obligation to contribute to the property of the company, accepted by its sole participant, had to be fulfilled by this participant even if he alienated his share. The Court of Appeal, on the contrary, supported the tax authorities, insisting that the funds received by the taxpayer from the former participant are property received free of charge. The court of cassation put an end to this dispute, according to which, the obligation of the participant to provide financial assistance to the company does not pass to the acquirer of the share, and the moment of actual transfer of the amount of money to the taxpayer does not change the qualification of this contribution as income of the taxpayer received in the form of property transferred by the participant of the economic companies in order to increase net assets (see case No. A40-21501/2014). Unfortunately more detailed information there are no details of the transaction on the alienation of the share by the participant in the case file (which would allow us to assess whether the position of the cassation court in this case is an isolated case or whether this decision is justified).
The Ministry of Finance of the Russian Federation, meanwhile, takes the opposite position and regards the contribution of the former participant as non-operating income: if on the date of the conclusion of the agreement on debt forgiveness (consider, on the date of making the contribution, and not the decision to do so), the person was not a member of the company, then the benefit income tax is not applicable.2
Thus, in the decisions of general meetings of participants and shareholders of organizations, do not forget to indicate that the transfer of property is carried out on the basis of paragraphs. 3.4 p. 1 art. 251 of the Tax Code of the Russian Federation precisely in order to increase net assets (so that the tax authorities would not have a reason to doubt the essence of the operation). And returning to the beginning of our newsletter, remember: having forgiven the debt to the company, its new member should not immediately leave the shareholders (participants). Otherwise, the tax authority will say that the lender did not intend to participate in the activities of the company and receive profit from this activity, and his only goal when entering the business was to forgive the debt and exclude taxation from the company.
The problem of non-compliance of the size of net assets (hereinafter - NA) with the requirements of the legislation is relevant for a significant number of business entities. In accordance with paragraph 3 of Art. 20 of the Federal Law “On Limited Liability Companies” (hereinafter referred to as the Federal Law “On LLC”), clause 11 of Art. 35 of the Federal Law "On joint-stock companies”(hereinafter - the Federal Law“ On JSC ”), the company may be forcibly liquidated on this basis. There are few options for bringing the size of the NA in line with the requirements of the law, and their list is especially limited for joint-stock companies (hereinafter referred to as JSC).
Firstly, an increase in the authorized capital of a JSC with a negative NA is recognized as unacceptable and FFMS of Russia, and judicial practice. Secondly, if the Federal Law on LLC contains provisions on the possibility of making contributions by participants to the company's property without increasing the authorized capital (Article 27), then the Federal Law on JSC does not contain similar provisions.
At the same time, when deciding on a way to increase NA, such options as gratuitous assistance of participants (shareholders), debt forgiveness by participants (shareholders) are often not considered. Meanwhile, these methods deserve separate consideration, especially considering the amendments to the Tax Code of the Russian Federation (hereinafter - the Tax Code of the Russian Federation) that came into force on January 1, 2011. In this article, we will consider the original situation, which remains relevant today, and the novelties introduced by these changes.
free transfer of property and property rights from a shareholder
Such an option for increasing the net assets of a business entity is not contained in the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) and in the norms of legislation on business entities. The assumption about its admissibility and expediency of use follows from the analysis of the provisions of Art. 251 of the Tax Code of the Russian Federation “Income not taken into account when determining tax base". To such income until 01.01.2011 in accordance with paragraphs. 11 p. 1 art. 251 of the Tax Code of the Russian Federation did not include income:
“11) in the form of property received Russian organization free of charge:
At the same time, the received property is not recognized as income for tax purposes only if, within one year fromthe day of its receipt, the specified property (except for cash) is not transferredthird parties."
The application of this norm has caused and causes controversy regarding some points. Sometimes the question arises about the fundamental admissibility of this method of increasing net assets for JSCs. It is doubtful that the Federal Law “On LLC” contains rules on making contributions to the property of a company, while the Federal Law “On JSC” does not provide for such a possibility. It should be noted that the provisions of Art. 27 of the Federal Law "On LLC" regulate the corporate action for the implementation of the rights and obligations of the company's participants, in particular, they assume that the decision of the supreme management body - general meeting participants about making contributions is mandatory for all participants. At the same time, the norms of the Tax Code of the Russian Federation regarding gratuitous assistance imply the individual nature of the decision-making and transaction on the part of the participant (shareholder), that is, they are not related to the implementation of corporate rights and obligations of participants (shareholders). Thus, the provision of gratuitous assistance through a unilateral transaction by a participant (shareholder) or the conclusion of an agreement between a participant (shareholder) and the company cannot be considered unacceptable just because such transactions are not directly regulated by the laws on LLC or JSC.
The admissibility of the application of paragraphs. 11 p. 1 art. 251 of the Tax Code of the Russian Federation to the relationship between a JSC and a shareholder was also supported by the Department of Tax and Customs Tariff Policy of the Ministry of Finance of the Russian Federation: “ Subparagraph 11 of paragraph 1 of Article 251 of the Code is applied regardless of the form in which the this is a company (JSC, CJSC, LLC, etc.)". However, the main controversy is the question of how the specified norm of the Tax Code of the Russian Federation is combined with civil law, that is, what is the qualification of gratuitous assistance from the point of view of the Civil Code of the Russian Federation?
Free transfer of property can be qualified in accordance with Art. 572 of the Civil Code of the Russian Federation as a donation, and in accordance with paragraphs. 4 p. 1 art. 575 of the Civil Code of the Russian Federation prohibits donation between commercial organizations. Investigator - but, there is a legal conflict when the rules tax legislation provide for the legal consequences of transactions that are void from the standpoint of civil law.
This conflict causes serious discussions in the theory of law, first of all, on the question whether, in principle, a transaction on a gratuitous transfer of property from a participant can be recognized as a donation? This article does not aim to study the arguments in favor of a particular position. It is only worth noting that there is no unity on this issue, just as there is no unity in law enforcement practice: the courts make decisions both in favor of the admissibility of such transactions and recognize them as invalid. Let's give a couple of examples.
“The Tax Code of the Russian Federation allows a Russian organization to receive property free of charge from an organization if the authorized capital of the receiving party consists of more than 50% of the contribution (share) of the transferring party<…>Article 575 of the Civil Code of the Russian Federation is not applicable in this case.
“The purpose of the payment is the transfer of a gratuitous contribution with reference to paragraph 11 of part 1 of article 251 of chapter 25 of the Tax Code Russian Federation <…>Guided by paragraph 4 of part 1 of article 575, article 168 of the Civil Code of the Russian Federation, the court reasonably recognized the transaction as inconsistent with the requirements of the law.”
Thus, in the case of a gratuitous transfer of property from a shareholder - a commercial organization, the main risk is the possibility of declaring the transaction invalid.
In addition to the risks of recognizing gratuitous aid as an illegal donation, one should take into account the restrictions imposed by paragraphs. 11 p. 1 art. 251 of the Tax Code of the Russian Federation and tax-related transactions (exclusion from taxable income for the recipient):
With regard to cash, the tax authorities do not question their classification as property. This position is explained by the fact that, in accordance with paragraph 2 of Art. 38 of the Tax Code of the Russian Federation, property in tax legislation means “types of objects of civil rights (with the exception of property rights) related to property in accordance with the Civil Code Russian Federation", and the Civil Code of the Russian Federation in Art. 128 refers to the objects of civil rights "things including money and securities.
From that date, amendments to Art. 251 of the Tax Code of the Russian Federation, which again raise the question of the possibilities of using methods to increase the NA provided by the Tax Code of the Russian Federation. In particular, paragraph 1 was added to paragraph. 3.4, by which, in addition to those previously provided, income is also excluded from taxable income in the form of property, property rights or non-property rights in the amount of their monetary value transferred to a business company or partnership in order to increase net assets, including through the formation of additional capital and (or) funds, by the relevant shareholders or participants. This rule also applies to cases of an increase in the net assets of a business company or partnership with a simultaneous decrease or termination of the obligations of a business company or partnership to the relevant shareholders or participants, if such an increase in net assets occurs in accordance with the provisions provided for by the legislation of the Russian Federation or the provisions of the constituent documents of the business company or partnership, or was the result of the will of a shareholder or participant in a business company, partnership, and in cases of reinstatement retained earnings of a business company or partnership unclaimed by shareholders or participants of a business company, partnership, dividends or part of the distributed profit of a business company or partnership”.
Thus, tax legislation, regulating the tax consequences of the actions of participants in commercial organizations, allows that net assets, including JSCs, can be increased in the following ways:
Consequently, the tax legislation expands the list of cases when actually gratuitous assistance is recognized as legitimate. In addition, in accordance with this rule, all restrictions imposed by paragraphs. 11 p. 1 art. 251 of the Tax Code of the Russian Federation to exempt such income from income tax:
In this case, in the case of the application of paragraphs. 11 p. 1 art. 251 of the Tax Code of the Russian Federation, both a subsidiary and a shareholder can receive assistance, in the case of paragraphs. 3.4 p. 1 art. 251 of the Tax Code of the Russian Federation, assistance can only be sent from a shareholder to a company, but not vice versa.
However, the main contradiction that exists in connection with the gratuitous transfer of funds remains - the issue of qualifying such a transaction as a gift, which results in a ban on such a transaction between commercial organizations. Despite the fact that the norm of tax legislation directly speaks about the purpose of such a transaction - an increase in net assets, in essence this branch of legislation establishes only the fiscal consequences of the actions of participants in legal relations, but not the types of obligations regulated by the Civil Code of the Russian Federation.
Is it possible to provide gratuitous assistance without violating the prohibition of paragraph 4 of Art. 575 of the Civil Code of the Russian Federation?
One of the options, at first glance, may be the provision of assistance by a shareholder - a non-resident of the Russian Federation with the subordination of the transaction to foreign law, which allows such legal relations. However, this possibility is also largely debatable. On the one hand, in accordance with Art. 1210 of the Civil Code of the Russian Federation establishes the principle of autonomy of will, allowing the parties to a transaction with a foreign element to independently choose the law applicable to their contract.
On the other hand, paragraph 1 of Art. 1192 establishes the priority of a special category of imperative norms, the so-called super-imperative norms, which exclude the effect of the conflict of laws norm of the Civil Code of the Russian Federation, in particular, on the autonomy of the will of the parties, and the application of foreign law on its basis: "The rules of this section do notaffect the operation of those peremptory normslegislation of the Russian Federation, which, as a result of indications in the peremptory norms themselves or due to their special significance,including to ensure the rights and legally protected interests of participants in civil transactions, regulate the relevant relations, regardless of the applicable law”.
That is, the choice by the parties to the transaction of foreign law eliminates the need to apply imperative rules, but it cannot eliminate the need to apply super-imperative rules. The legislation does not contain a specific list of such norms. In some cases, this is directly indicated in the legislation, for example, by virtue of the provisions of Art. 1213 of the Civil Code of the Russian Federation transactions with real estate located on the territory of the Russian Federation, are subject only to the legislation of the Russian Federation, regardless of the choice of the applicable law by the parties to the transaction. In most cases, however, the decision on which rules are super-mandatory and operate regardless of the choice of the applicable law by the parties is actually taken by the courts.
Will there be a ban Russian legislation act on donation transactions between commercial organizations regardless of the choice of foreign law by the parties to the agreement? In the judicial practice available to the author, the issue has not been investigated, therefore, the risk of recognizing the transaction as invalid remains even if a foreign shareholder renders gratuitous assistance to a Russian joint-stock company. An indisputable option, in which there are no restrictions on donation, is the transfer of funds from a shareholder - an individual:
However, the answer to the question of whether this option is possible depends on the structure of the company and the relationship between shareholders.
conclusions
The provision of gratuitous assistance by a shareholder is the fastest way to increase the net assets of a joint-stock company - no corporate events are required, no appeals to registration, regulatory authorities (FTS, FFMS, FAS, Rosreestr, if not real estate is transferred). void due to the ban on gifts between commercial organizations.
Wherein:
From point of view tax implications it would be more correct to use the provisions of paragraphs. 3.4 p. 1 art. 251 of the Tax Code of the Russian Federation in comparison with the provisions of paragraphs. 11 p. 1 art. 251. This should be taken into account when drawing up contractual, administrative, payment documents, that is, the purpose of the transfer of property (property rights) should be recorded in these documents, so that later there will be no misunderstandings with the tax authorities when determining the norm to be applied.
Debt Forgiveness
The situation with debt forgiveness is in many ways similar to the situation with gratuitous assistance. In accordance with Art. 415 of the Civil Code of the Russian Federation, an obligation may be terminated by releasing the debtor from the obligations of the creditor. Pp. 3.4 p. 1 art. 251 of the Tax Code of the Russian Federation directly states that such income is not taken into account when determining the tax base if they are made in order to increase the founder's net assets of the company. In this regard, the question again arises - is the forgiveness of debt a gift?
And again, as in the case of gratuitous assistance, there is no unity in understanding the institution of debt forgiveness in legal theory, as well as in the qualification of such transactions in judicial practice.
With the position of the ban, everything is clear, basically the courts qualify debt forgiveness as a kind of donation and recognize it as null and void, as contrary to paragraph 4 of Art. 575 of the Civil Code of the Russian Federation: “Article 415 of the Civil Code of the Russian Federation establishes that an obligation is terminated by the release by the creditor of the debtor from his obligations<…>From the meaning of this norm, debt forgiveness is assessed as one of the types of donation, and therefore it must be subject to the restrictions and prohibitions established by Chapter 32 of the Civil Code of the Russian Federation.
Another position is to assess debt forgiveness as a unilateral transaction, which leads to the conclusion that the provisions on donation, which is a bilateral transaction, do not apply to it.
In addition, this point of view appeals to the argument that the recognition of debt forgiveness as a kind of gift generally removes the question of the existence of debt forgiveness as an independent institution. civil law-what is the point in an independent form of termination of obligations, established by Art. 415 of the Civil Code of the Russian Federation? After all, it was enough to indicate that the release of the debtor from the performance of an obligation can be terminated by donation in the order of Ch. 32 GK.
Judicial practice sometimes also supports this approach: “The applicant’s argument that debt forgiveness becomes one of the types of donation is untenable, and in connection with this must comply with the prohibitions established by Art. 575 of the Civil Code of the Russian Federation. The ban provided Art. 575 of the Civil Code of the Russian Federation, debt forgiveness is not is ruled out, because in this case the application of Art. 415 of the Civil Code of the Russian Federation". Opponents of this approach, in turn, say that in this way, through the institution of debt forgiveness, one can easily circumvent the ban on gifts between commercial organizations.
Between these two extreme positions there is a third, more balanced one. This position was formulated in the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 21, 2005 No. 104. In particular, the situation was considered when debt forgiveness was understood as the lender's refusal to pay interest for the use of funds and penalties for late repayment of the loan amount when fulfilling the requirement for repayment the principal amount of the loan. The court agreed with the arguments that in this case there is no fact of donation, stating: “The relationship between the creditor and the debtor for forgiveness of debt can be qualified as a gift, only if the court establishes the intention of the creditor to release the debtor from the obligation to pay the debt as a gift. The absence of the creditor's intention to gift the debtor may be evidenced by various circumstances, primarily the receipt by the creditor of any other benefit in the relationship with the debtor as a result of forgiveness of the debt. In this case, the court held that "the purpose of the transaction debt forgiveness was to ensure the return of the amount of the debt in the unforgiven part without going to court, that is, the creditor had no intention to bestow the debtor.
Is it possible to apply this position of the Supreme Arbitration Court of the Russian Federation to the situation under consideration? It seems that the answer may be positive. Debt forgiveness in order to increase net assets in the wording of paragraphs. 3.4 p. 1 art. 251 of the Tax Code of the Russian Federation already speaks of a different intention than "to release the debtor from the obligation to pay the debt as a gift". Debt forgiveness, motivated by the intention of the shareholder-creditor to increase the net assets of the debtor company, in its essence can be considered as the receipt of a property benefit by the shareholder, that is, it indicates the absence of a prohibited intention to bestow a joint stock company.
In addition, this argument can be supplemented by those that make it possible not to consider contributions to the property of an LLC as a donation. After all, legitimacy this action is due not only to the fact that it is allowed by the Federal Law "On LLC". In other cases, as was shown above, the presence of a norm of legislation does not yet mean the admissibility of its use. Ownership of shares in the authorized capital implies the presence of a property interest in relation to the company, that is, the receipt of part of the profit. Contributions to the property of the society assume that the participants intend to improve it financial condition not for charitable purposes, but pursue the objectives of subsequent profit. Thus, there is no sign that the creditor is aware of the gratuitousness of the transfer, which is mandatory for donation.
Similarly, the intention of a shareholder to increase the company's net assets indicates its property interests- forced liquidation of a joint-stock company on the grounds of non-compliance with the requirements of the legislation on the amount of net assets may entail for the shareholder not only the loss of the source of dividend income, but also losses in the amount of expenses incurred for the acquisition of shares.
However, before the advent judicial practice or clarifications of judicial and government agencies this is just an opinion on the matter. Accordingly, as in the case of gratuitous financial assistance, there is a risk of recognizing a debt forgiveness transaction as a donation.
In terms of tax implications, the following should be kept in mind. With regard to the provisions of paragraph 11 p. 1 art. 251 of the Tax Code of the Russian Federation on exemption from taxation of income received from debt forgiveness, the position of the Ministry of Finance was not always unambiguous. Previously, the absence of benefits was denied, for example: “In the situation under consideration, the subsidiary the organization as a result of these transactions does not receive ownership from the parent company of any property. In this regard, it lacks the basis
for the application of the benefits provided for by subparagraph 11 of paragraph 1 of Article 251 of the Code. Then the position changed, and it was indicated that income in the form of funds received under a loan agreement from an organization, if the obligation under the loan agreement was subsequently terminated by debt forgiveness (subject to the requirements of paragraph 11, paragraph 1, article 251 of the Tax Code of the Russian Federation regarding participation in the authorized capital ), for tax purposes profits are not taken into account.
Considering that the letters of the Ministry of Finance are not of a regulatory nature, the later ones do not cancel the previously issued ones, it is impossible to predict the position of a particular tax authority in a particular situation. Accordingly, when carrying out such an operation, it is preferable to use the provisions of the new norm of paragraphs. 3.4 p. 1 art. 251 of the Tax Code of the Russian Federation, which leaves no doubt about the legality of the exemption of such income from taxation.
You should also take into account the following nuances:
conclusions
In the presence of accounts payable of the company for loan obligations to the shareholder, forgiveness of the debt along with the provision of gratuitous assistance from the participant (shareholder) is the most efficient way to increase net assets.
Exclusion from the types of donation of a debt forgiveness transaction by a shareholder using the provisions of paragraphs. 3.4 p. 1 art. 251 of the Tax Code of the Russian Federation looks more justified than gratuitous assistance.
However, the risk of the transaction being invalidated due to the ban on gifts between commercial organizations remains, so the level of risk depending on the status of the creditor shareholder looks similar:
· There are no restrictions on debt forgiveness by an individual shareholder.
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Letter Federal Service on financial markets dated March 30, 2010 No. 10-VM-03/6623.
Decree of the Federal arbitration court of the West Siberian District dated 06/02/2009 No. Ф04-3875 / 2009 (9774 -
A45-23), Resolution of the Federal Arbitration Court of the Moscow District of December 16, 2004 No. KG-A40 / 11527-04.
Letter No. 03-03-04/1/736 of the Department of Tax and Customs Tariff Policy of the Ministry of Finance of the Russian Federation dated November 9, 2006.
Decree of the FAS SZO dated December 23, 2005 No. A56-4986 / 2005.
Decree of the FAS SZO dated February 12, 2009 No. F04-719 / 2009 (188-A45-13).
Letter No. 03-03-06/1/299 of the Department of Tax and Customs Tariff Policy of the Ministry of Finance of the Russian Federation dated April 28, 2010.
At the same time, it should be taken into account that in both cases (when applying clauses 3.4, clause 1, article 251, clause 11, clause 1, article 251 of the Tax Code of the Russian Federation), for the transferring party, the cost of property, property and non-property rights is not recognized as an expense (clause 16 article 270 of the Tax Code of the Russian Federation).
Decree of the FAS DVO dated May 25, 2004 No. F03-A73 / 04-1 / 972.
Decree of the FAS UO dated February 13, 2002 No. F09-139 / 02GK.
Letter No. 03-03-06/1/201 of the Department of Tax and Customs Tariff Policy of the Ministry of Finance of the Russian Federation dated March 30, 2007.
Letter of the Department of Tax and Customs Tariff Policy of the Ministry of Finance of the Russian Federation No. 03-03-06/1/646 of October 14, 2010, Letter of the Ministry of Finance of the Russian Federation of January 14, 2011 No. 03-03-06/1/11.
Receipt of funds (December 29, 2017) from the founder to increase the net assets of the company. For what purposes can these funds be spent (in particular, to repay loans from previous years). Taxation of these funds (profit tax).
The money received in 2017 from the participant to replenish net assets, reflect on the credit of account 83 "additional capital" (attachment to the letter of the Ministry of Finance of Russia dated December 28, 2016 No. 07-04-09 / 78875, letter of the Ministry of Finance of Russia dated October 28, 2013 No. 03 -03-06/1/45463). Make an entry in your account:
Debit 50 (51) Credit 83
- reflects the receipt of money from the participant.
In 2017, income does not include property that participants contribute to replenish net assets. Provided that they drew up the minutes of the general meeting, which says that the assistance is used to increase net assets. This means that in 2017 it is not necessary to pay income tax on such assistance (subclause 3.4, clause 1, article 251 of the Tax Code of the Russian Federation).
From January 1, 2018, contributions to replenish the net assets of the company disappeared from the list of preferential income (Federal Law of September 30, 2017 No. 286-FZ). Therefore, from them general rule you have to pay income tax.
But there is another option - to make assistance as a contribution to the property of the company (Federal Law of September 30, 2017 No. 286-FZ). In order not to pay tax on such deposits, check the charter. It should say that the founders have the right to provide assistance (Article 27 of the Federal Law of February 8, 1998 No. 14-FZ). See sample below.
By default, participants make contributions to property in proportion to their shares in the authorized capital. But it is possible to fix in the charter and another order. You can also limit the value of contributions made by all or certain members.
Participants must decide on contributions at the general meeting. Draw up the minutes of the general meeting or the decision of the sole founder, if the owner is one (clauses 1 and 3 of article 27 of Law No. 14-FZ). See below for a fragment of the contribution protocol.
Now, regarding the spending. The money that the founder contributed to the cash desk is not considered cash proceeds. So, formally, they can be spent for any purpose. At the same time, it is allowed to repay loans only from the funds that the company withdrew from the current account (clause 4 of the Directive of the Central Bank of the Russian Federation dated 07.10.2013 No. 3073-U). You cannot withdraw money directly from the cash register. Therefore, first deposit assistance into the current account. And if you want to repay the loan, withdraw the money from the account again. Or transfer the loan by bank transfer. Otherwise, during the check, your company may be fined up to 50,000 rubles. (part 1 of article 15.1 of the Code of Administrative Offenses of the Russian Federation).
Under what conditions the forgiveness of the debt by the founder is not subject to income tax, the article will explain.
Question: Financial assistance to increase net assets in income is not taken into account. This rule also applies to those situations when, at the request of the participants, founders or shareholders, the company's debt to them is reduced or terminated. For example, if a company has not fulfilled its obligations to a participant under a loan agreement or payment for goods, it can forgive the debt and use it to increase net assets. Thus, he terminates the obligations of the company under the agreement (letters of the Ministry of Finance of Russia dated July 16, 2015 No. 03-03-06 / 2 / 40933 and the Federal Tax Service of Russia dated July 20, 2011 No. ED-4-3 / 11698). When determining income on a simplified tax system, the same receipts are not taken into account as when calculating income tax. Which means financial assistance, received from a dependent founder or one who owns more than 50 percent in the authorized capital of the recipient, is also not taken into account when calculating the single tax. As, however, and assistance to increase net assets. "How to issue and take into account assistance from the founder (participant, shareholder): loans, loans, donations, deposits." Or from a founder owning more than 50% - anyway? what are the entries in each case? Dt76 Kt 91 - just forgiveness and Dt 76 Kt 83 - net assets?
Answer: 1. Yes, only if it is used to increase net assets, since subparagraph 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation refers to the transfer of property, and there is no transfer of property when debt is forgiven.
Formally, of course, net assets increase even without any decisions and protocols, but the controlling departments require them to be registered.
2. Debt forgiveness posting Debit 76 Credit 91.
Many are mistaken that if we are talking about an increase in net assets, then account 83 should be applied. There is no such rule in the legislation.
83 account is used when receiving a contribution to the organization's property, which is usually accompanied by an increase in net assets and in relation to the contribution and reflect the posting Debit 08, 10, 50, 51 Credit 83.
In this case, there is no contribution to property, but there is debt forgiveness in order to increase net assets. They increase in the case of posting Debit 76 Credit 91, since accounts payable decrease, and other income will eventually be reflected in section III of the balance sheet.
Situation: whether it is necessary to take into account in income when calculating income tax the amount of forgiven debt under a contract for the purchase of goods (works, services, property rights). The debt is forgiven by the founder who has a contribution in the authorized capital of the organization of more than 50 percent
According to the Ministry of Finance of Russia, the amount of forgiven debt should increase taxable income. However, the Federal Tax Service of Russia expressed a different position.
The tax base for income tax is not increased only by the value of property received free of charge from the founder, whose share in the authorized capital of the organization exceeds 50 percent ( sub. 11 p. 1 art. 251 Tax Code of the Russian Federation). As a result of forgiveness of the debt, the transfer of property does not occur ( paragraph 2 of Art. 38 Tax Code of the Russian Federation). For tax purposes, this operation should be considered as a write-off of accounts payable, which is included in non-operating income on the basis of paragraph 18 article 250 of the Tax Code of the Russian Federation. There are no exceptions in the procedure for its taxation by the Tax Code of the Russian Federation.
This conclusion is confirmed by the clarifications of the regulatory agencies (see, for example, letters from the Ministry of Finance of Russia April 5, 2010 No. 03-03-06/1/232 , March 30, 2007 No. 03-03-06/1/201 , dated March 28, 2006 No. 03-03-04/1/295 , dated March 17, 2006 No. 03-03-04/1/257 , Federal Tax Service of Russia dated May 22, 2009 No. 3-2-13/76).
The chief accountant advises: there is a way not to take into account in income the amount of the debt forgiven by the founder under the contract for the purchase of goods (works, services, property rights).
12.77451 (6,9,24)
Situation: whether it is necessary to take into account in income when calculating income tax the amount of forgiven debt for the return of the loan amount. The debt is forgiven by the founder, who has a contribution in the authorized capital of the organization of more than 50 percent
According to the Ministry of Finance of Russia, the amount of the forgiven loan should not be taken into account in income. However, the claims of tax inspectors are not excluded.
The Ministry of Finance of Russia indicates that the amount of the loan received, forgiven by the founder, whose share in the authorized capital of the organization exceeds 50 percent, should not be included in income (see, for example, letters dated September 30, 2013 No. 03-03-06/1/40367 , dated October 14, 2010 No. 03-03-06/1/646). This is explained like this.
When the debt is forgiven on the main obligation of the loan, the organization actually receives property free of charge. Property received free of charge is included in non-operating income ( paragraph 8 of Art. 250 Tax Code of the Russian Federation). But for the case when the donor is the founder of the organization, an exception is provided. Property received free of charge is not included in income if, at the time when the notice (agreement) on debt forgiveness is signed, the share of the founder in the authorized capital of the organization exceeds 50 percent. This follows from subparagraph 11 paragraph 1 of Article 251 of the Tax Code of the Russian Federation.
The Ministry of Finance of Russia is convinced that the condition on the amount of the contribution (share) in the authorized capital must be met at the time of the conclusion of the loan agreement ( letter of the Ministry of Finance of Russia dated January 31, 2011 No. 03-03-06/1/45).
Forgiveness of the principal amount of the debt (excluding interest debt) under a loan agreement may be subject to the rule subparagraph 11 paragraph 1 of Article 251 of the Tax Code of the Russian Federation, therefore, the taxable base of the organization does not increase.
The tax department also agrees with the stated point of view (see, for example, the letters of the Federal Tax Service of Russia dated May 22, 2009 No. 3-2-13/76 , dated March 6, 2009 No. 3-2-06/32).
However, based on the position of the regulatory authorities on a similar issue of accounting for the amount of debt forgiven by the founder under a contract for the purchase of goods (works, services, property rights), it is possible that non-reflection of income when forgiving a debt under a loan agreement may cause claims from inspectors. The fact is that, if you follow the norms of civil law, debt forgiveness is a way to terminate the obligation under the original reimbursable contract (Article and Civil Code of the Russian Federation). Therefore, it is impossible to consider the amount of forgiven debt, including under a loan agreement, as property received free of charge (). For tax purposes, this operation should be considered as a write-off of accounts payable, which is included in non-operating income on the basis of paragraph 18 article 250 of the Tax Code of the Russian Federation. There are no exceptions regarding the non-reflection of income received from the founder in relation to this paragraph. Therefore, when forgiving debt under a loan agreement (as well as under any other agreement), it is necessary to generate income.
In this situation, the organization has the right to independently decide which of these positions to follow. All ambiguities in the legislation are interpreted in favor of taxpayers ( paragraph 7 of Art. 3 Tax Code of the Russian Federation).
The chief accountant advises: there is a way not to take into account in income the amount of debt forgiven by the founder under a loan agreement.
Situation: whether it is necessary to take into account when calculating the single tax income in the form of a loan amount received from the founder. The founder forgives the debt of the organization. The organization applies the simplification
The answer to this question depends on what part of the authorized capital of the organization is the contribution of this founder.
If the share contributed by the founder is 50 percent or less, include the amount of the written-off debt on the loan as income. Do the same if the property transferred to the organization as a result of debt forgiveness was transferred to third parties during the year. This follows from paragraph 1 articles 346.15 and paragraph 8 article 250 of the Tax Code of the Russian Federation. Recognize income at the date the debt forgiveness agreement is signed ( paragraph 1 of Art. 346.15, Tax Code of the Russian Federation).
An example of settlements with the founder of the organization for the provided loan. The share of the founder in the authorized capital of the organization is 45 percent. The organization applies the simplification
One of the founders of Alpha LLC is A.V. Lvov. The share contributed by Lvov to the authorized capital of the organization is 45 percent.
In January, Lvov provided Alfa with an interest-free loan in the amount of 100,000 rubles. for a period of three months. In March, due to the difficult financial situation of the organization, Lvov forgives Alfa the debt on the loan.
The accountant of the organization took into account the loan amount when calculating the single tax during the period of signing the debt forgiveness agreement (in the first quarter).
If the share of the founder is more than 50 percent, the issue of including the amount of written-off debt in income ambiguous. Since the dispute is based on the provisions subparagraph 11 paragraph 1 of Article 251 of the Tax Code of the Russian Federation, the conclusions contained in it can be guided not only by payers of income tax, but also by organizations that apply simplified taxation ( sub. 1 p. 1.1 art. 346.15 of the Tax Code of the Russian Federation).
Answered by Alexander Sorokin,
Deputy Head of the Operational Control Department of the Federal Tax Service of Russia
“CCP should be used only in cases where the seller provides the buyer, including its employees, with a deferral or installment plan for paying for their goods, works, services. It is these cases, according to the Federal Tax Service, that relate to the provision and repayment of a loan to pay for goods, work, and services. If an organization issues a cash loan, receives a return of such a loan, or itself receives and repays a loan, do not use the cash desk. When exactly you need to punch a check, look at
