Contribution to the property of a limited liability company. Making a contribution to the property of a joint-stock company. How is the founder's gratuitous contribution made out by postings?

If for the current activities of the organization own resources not enough, participants can help fill the gap. You can arrange help in different ways: increase authorized capital, contribute to the property of the LLC or simply transfer the assets free of charge. Each option has its own pros and cons. Increasing the authorized capital is a rather complicated procedure: you will need to hold a general meeting of participants twice, amend the charter and register them. From this point of view, gratuitous help is the easiest option. But the members of the LLC can go the other way, by applying for assistance in the form of a contribution to the property. In certain cases, from a taxation point of view, this is more profitable than assistance received free of charge.

We will tell you what you need to pay attention to so that you do not have to overpay taxes.

Accounting at the transmitting side

Accounting

According to the recommendations of the Ministry of Finance, when recording operations on making contributions to the property of a subsidiary, it is necessary to be guided by PBU 10/99 "Organization Expenses" Letter of the Ministry of Finance dated January 29, 2008 No. 07-05-06 / 18 (section "Submission by the audited entity of information on the contributions of the participants of the limited liability company to the property of the company")... If you follow these recommendations, the transfer of property must be reflected on the debit of account 91-2 "Other expenses" in correspondence with the credit of the accounting accounts of the transferred property.

However, there is another approach to accounting for such an operation: contributions to the company's property must be taken into account as part of financial investments.

EXPERIENCE EXCHANGE

INOZEMTSEV Oleg Valerievich

Chief Specialist of the International Financial Reporting Department of Hals-Development OJSC

“If an organization (investor) owns 100% of shares in the authorized capital of another organization (an investee), then the investor's contribution to the investee's property is reflected in the investor's reporting (both under IFRS and Russian PBU) as an investment (financial investment). That is, the contribution to the property of the company (as well as material assistance from the subsidiary, contribution to increase net assets, etc.) is reflected in the same way as the contribution to the authorized capital.

Indeed, the user of the investor company's reporting does not care at all whether changes were made to constituent documents(content priority over form). It is only important for him that the investee received additional assets and will use them in its activities to make a profit.

If we argue from the point of view of Russian accounting, it may seem that such an accounting procedure contradicts the first condition for accepting a accounting assets as financial investments par. 2 p. 3 PBU 19/02- the availability of properly executed documents confirming the existence of the organization's right to financial investments and the right to receive subsequently Money or other assets from these financial investments.

However, it is not. The investor has properly executed documents confirming the transfer of property to the investment object. In addition, the investor has the constituent documents for the investment object or documents confirming the acquisition of a share. All this taken together gives the investor the right to receive further money or other assets from the investment object.

If the investor owns a share of less than 100%, then the contribution to the property of the investment object will be made by all investors in proportion to their share in the investment object. And each investor will reflect his contribution as described above, that is, as part of the investment.

This approach is used because the proportional contribution of investors does not change their share of ownership in the investee. The real value of the investment of each investor immediately after the deposit will grow by at least the amount of his deposit (otherwise no one in normal circumstances will make such a contribution), or even more. Of course, in the future, this investment may depreciate, but these are issues of subsequent accounting, and not the initial recognition of the investor's contribution to the property of the investment object ”.

VAT

If the contribution to the property is made in money, then no difficulties arise, VAT is not charged. But when transferring other assets (goods, materials, fixed assets, etc.), the participant needs to charge and pay VAT to the budget from their market value and sub. 1 p. 1 of Art. 146, paragraph 2 of Art. 154 of the Tax Code of the Russian Federation... At least that's what Minfi thinks Letters of the Ministry of Finance dated 21.08.2013 No. 03-07-08 / 34198, dated 15.07.2013 No. 03-07-14 / 27452... According to officials, the transfer of property in this situation is recognized as a sale, and, accordingly, is subject to VAT.

But one can disagree with the opinion of the Ministry of Finance. The fact is that the transfer of property in this case is of an investment nature, and therefore, the sale is not recognized sub. 4 p. 3 art. 39 of the Tax Code of the Russian Federation... Therefore, there is no need to charge VAT here. But with this approach, it is necessary to restore VAT, which was previously deducted for the acquisition of property. sub. 2 p. 3 art. 170 of the Tax Code of the Russian Federation... Recall that VAT for goods and materials is recovered in full (therefore, the investment organization, most likely, will not receive any benefit from the recognition of the transaction). But for fixed assets, only that part of the VAT is restored, which falls on its residual value. Therefore, if you transfer an expensive fixed asset as a contribution and its residual value is very different from the market value, the recognition of the investment operation is much more profitable from the point of view of taxation. It will be useful for organizations that are ready to argue with tax authorities to find out that judicial practice in this matter is on the side of taxpayers. In the opinion of the arbitrators, a participant's contribution to the property of a subsidiary is an investment transaction and is not subject to VAT. Resolution of the FAS VVO dated 03.12.2012 No. A29-10167 / 2011; FAS TsO dated 20.02.2007 No. A-62-3799 / 2006... If you adhere to this position, then in accounting, it is better to take into account the contribution to property as part of financial investments.

Income tax

From the point of view of profit taxation, making a contribution to the property of a subsidiary is recognized as a gratuitous transfer. Therefore, the cost of the transferred property (including money) is not taken into account when calculating income tax. As well as the costs associated with such a transfer (for example, the cost of shipping goods from the parent company to the subsidiary) are not taken into account clause 16 of Art. 270 of the Tax Code of the Russian Federation; Letters of the Ministry of Finance dated May 10, 2006 No. 03-03-04 / 1/426, dated March 14, 2006 No. 03-03-04 / 1/222.

Let's talk separately about writing off accrued or recovered VAT. There are two options for accounting for it.

OPTION 1 (risky). This VAT is reflected in the structure of other expenses of the organization and sub. 1 p. 1 of Art. 264, sub. 2 p. 3 art. 170 of the Tax Code of the Russian Federation; Resolution of the FAS VVO dated 18.03.2011 No. A82-8294 / 2008.

OPTION 2 (safe). We do not include VAT in expenses. The fact is that tax authorities usually recognize such VAT as costs directly related to the donation. And they, as we have already said, do not reduce the income tax base. clause 16 of Art. 270 of the Tax Code of the Russian Federation.

Receiving party accounting

Accounting

In the accounting of a subsidiary organization, the receipt of assistance from participants is reflected in the debit of the property account and the credit of account 83 "Additional capital" Letters of the Ministry of Finance dated January 29, 2008 No. 07-05-06 / 18, dated April 13, 2005 No. 07-05-06 / 107... At what cost to reflect the received property? The current accounting regulations do not mention this. In our opinion, such property should be taken into account at market value (that is, the same as received free of charge) p. 7 PBU 1/2008.

Income tax

The Tax Code allows for the exemption of income tax on any property received from members, provided that the purpose of such a transfer is to increase the net assets of the recipient company. Moreover, this rule applies regardless of the share of participation in the authorized capital of the organization and sub. 3.4 clause 1 of Art. 251 of the Tax Code of the Russian Federation; Letter of the Ministry of Finance dated 20.04.2011 No. 03-03-06 / 1/257... Therefore, the documents relating to the contribution (and this is primarily the decision of the participants) should be explicitly stated: "The purpose of making contributions is to increase the net assets of the subsidiary."

WARNING THE LEADER

In order not to have to overpay income tax, in the decision of the general meeting of participants, it is necessary to explicitly indicate that the purpose of making contributions to property is to increase the net assets of the subsidiary.

If such a purpose is not specified in the documents, the assistance received will not be subject to income tax, only when sub. 11 p. 1 art. 251 of the Tax Code of the Russian Federation:

• the share of the founder in the authorized capital of the subsidiary is more than 50%;
• the property received (except money) during the year will not be transferred to third parties (sold, leased, transferred to the pledge) Letter of the Ministry of Finance dated 09.02.2006 No. 03-03-04 / 1/100).

If you received a fixed asset as a contribution to property, it can be depreciated. The initial cost of such an asset will be equal to its market price (but not less than the residual value of this asset in the tax accounting of the parent company) clause 1 of Art. 257, paragraph 8 of Art. 250 Tax Code of the Russian Federation; Letter of the Ministry of Finance dated April 28, 2009 No. 03-03-06 / 1/283... However, you cannot apply the depreciation premium to these fixed assets. clause 9 of Art. 258 of the Tax Code of the Russian Federation.

But upon receipt of materials or goods, their tax value will be zero. Therefore, when writing off materials for the production or sale of goods in tax accounting, their cost cannot be taken into account in expenses, even if, upon receipt, you reflected income Letters of the Ministry of Finance dated September 26, 2011 No. 03-03-06 / 1/590, dated February 07, 2011 No. 03-03-06 / 1/80.

If the contribution to the property of the company is made by money, there are no difficulties. Anything that you purchase with this money will be accounted for as usual.

Contribution of property to the authorized capital of LLC

First of all, it should be said that the founder of the LLC and the participant are different concepts. The founder is the person who creates the organization. After registration, he becomes a member. Often these concepts are confused and intertwined with each other, therefore, within the framework of the article, speaking about the founder or participant, we mean that in the first case we are talking about the person who participated in the establishment of the company or registered it, in the second - about the person who is her.

The authorized capital is the minimum amount of the organization's property, which allows it to ensure the interests of its creditors. Its size cannot be less than 10 thousand rubles. (Part 1 of Art. 14 of the Federal Law "On Societies ..." dated 08.02.1998 No. 14). At the same time, clause 1 of Art. 15 of the Federal Law No. 14 established the possibility of including movable or immovable property in the authorized capital of an enterprise.

According to Art. 130 of the Civil Code of the Russian Federation, real estate is a material object closely related to the land and cannot be moved without losing its characteristics. This category includes subsoil plots and land plots, buildings, structures, construction in progress, etc. In addition, ships and aircraft (for example, satellites and space ships) subject to state registration have the status of real estate. All other assets are classified as movable property.

Property valuation

The procedure for establishing the value of property contributed to the authorized capital is determined by clause 2 of Art. 15 ФЗ № 14. Assets are valued in monetary terms during the general meeting of members of the company, following which a decision is made that is subject to documentary registration.

If the value of the property contributed to the authorized capital exceeds 20 thousand rubles, an independent expert appraiser should be involved in the procedure for determining its exact value. The total amount at which assets will be accepted into the authorized capital cannot exceed the value set by the appraiser.

Sometimes, in the course of the organization's activities, it becomes necessary to sell assets (for example, in case of bankruptcy of an enterprise). If at the same time it turns out that the appraiser deliberately overestimated the value of the property at the stage of its contribution to the authorized capital, he, together with the founder of the company, is held jointly liable in the amount of the amount by which the value was overstated. At the same time, such responsibility can be assigned to them within 3 years from the moment the property is included in the authorized capital of the LLC.

Contribution of property to LLC, which does not change its authorized capital

According to the provisions of paragraph 1 of Art. 27 ФЗ № 14, the founders of the company are obliged to contribute their own funds to its property fund, if such an obligation is provided for by the charter of the company. At the same time, the size of the authorized capital of the enterprise does not change. The amount of contributions made by the company's participants must be proportional to their shares in the authorized capital, unless the charter of the company provides otherwise. This method of financing an enterprise allows you to strengthen its financial position and does not entail the need to redistribute shares in the authorized capital between its founders.

Don't know your rights?

It is possible to bring property into an LLC only if such an opportunity is provided for by the provisions of the charter in force in the company (clause 3 of article 27 of the Federal Law No. 14). The property transferred by LLC may be:

• real estate;
• vehicles;
• computers and household appliances;
• shares and securities, etc.

There are no restrictions regarding the value of the property transferred to the LLC's balance sheet (except for situations when it is stipulated by the charter). The established sub. 4 p. 1 art. 575 of the Civil Code of the Russian Federation, a ban on donating assets worth more than 3 thousand rubles. in the relationship between commercial organizations in the situation under consideration, it also does not work, since the transferred property has the status of a deposit, not a gift.

Taxation of property contributed to the authorized capital of an LLC and contributions to the authorized capital

By transferring the property belonging to him to the authorized capital of the company, the founder increases his share in this capital (except for cases when all members of the LLC contribute property to the capital in an amount proportional to their shares). At the same time, he does not receive additional profit, but does not bear any expenses (clause 2, part 1 of article 277 of the Tax Code of the Russian Federation). This means that the difference between the real value of the assets owned by the founder and their nominal value used when they are included in the authorized capital does not affect the tax base for the corporate income tax.

The contribution of the founder of the company is qualified in accordance with paragraph 2 of Art. 248 of the Tax Code of the Russian Federation, as property received free of charge. This means that the amount of material assets transferred by the LLC participant must be indicated as part of non-operating income tax on profit (clause 8 of article 250 of the Tax Code of the Russian Federation). There is only one exception to this rule: sub. 11 p. 1 art. 251 of the Tax Code of the Russian Federation exempts the contribution transferred to the LLC from taxation if it was made by a member of the company who owns 50 or more percent of the authorized capital of the enterprise. A prerequisite for the application of such a benefit, it is necessary to retain the ownership of the property for the enterprise for at least 1 year from the date of its receipt.

Documentary registration of the contribution

The contribution to the property of the enterprise is formalized by drawing up an act of acceptance and transfer. Scroll required details of this document is established by clause 2 of Art. 9 of the Federal Law "On Accounting" dated 06.12.2011 No. 402, in accordance with which it must indicate:

1. Title of the document.
2. The name of the company acting as the recipient of the property.
3. Date and place of drawing up the act.
4. Full name, passport data, registration address of an individual or details of the enterprise transferring the property.
5. The name and value of the property.
6. Signatures of the parties (indicating positions).

If real estate is transferred to the society, and not movable property, then in addition to drawing up an act, it will be necessary to additionally register the transfer of ownership with the Rosreestr authorities. Without fulfilling this condition, the transaction cannot be considered concluded by virtue of the requirements of Part 1 of Art. 131 of the Civil Code of the Russian Federation.

If the company's charter does not provide for the obligation of its founders to make contributions, it will not work to transfer property by drawing up an act of acceptance and transfer, since in this case such a movement of tangible assets can be qualified as a gift.

There are 2 ways to avoid problems with the law:

1. Changes to the charter (inconvenient way, which entails additional material and time costs).
2. Conclusion of an investment agreement, interest-free loan or gratuitous use of property.

As you can see, the purpose of the contribution to the property of an LLC may differ from the founders: the founder can increase his share in the authorized capital of the enterprise, but he can also provide the company with material assistance without changing the amount of capital. A prerequisite for the transfer of property to the LLC as a contribution is the presence of a corresponding provision in the company's charter. The documentary registration of the deposit is carried out by drawing up an act of acceptance and transfer. If real estate enters the company's balance sheet, the transfer of ownership of it will need to be registered in the manner prescribed by law.

E.A. Sharonova, economist

Making a contribution to the property of a JSC

How the transmitting and receiving parties reflect the contribution in accounting and tax accounting

Since July of this year, shareholders have been legal grounds can contribute to the property of a joint stock company and Law of 03.07.2016 No. 339-FZ... Such financial assistance does not increase the authorized capital of the JSC and does not change the ratio of shares between owners and the par value of shares. The easiest way is to make a contribution with money, then the question of calculating VAT will not arise at all. If you make a contribution with property, the transferring party will have to charge VAT, but the receiving party will not be able to accept it for deduction.

What is in the account of the transmitting side

Accounting

The procedure for reflecting transactions for making contributions to the property of a JSC regulatory documents on accounting is not separately specified. Therefore, you can apply the procedure for making contributions to an LLC. And there are two approaches here.

APPROACH 1. It is recommended by the Ministry of Finance. He proposes to be guided by PBU 10/99 when making a contribution to property Letter of the Ministry of Finance dated January 29, 2008 No. 07-05-06 / 18 (section "Submission by the audited entity of information on the contributions of the participants of the limited liability company to the property of the company")... And this means that the transfer of property must be reflected in the debit of account 91-2 "Other expenses" and the credit of the accounting accounts of the transferred property a p. 11 PBU 10/99:

• <если>money is deposited - Кт account 51 "Settlement accounts";
• <если>property is entered - CT accounts 01 "Fixed assets", 10 "Materials", etc.

APPROACH 2. It is recommended by some auditors. They propose to be guided by PBU 19/02 when making a contribution to property. That is, the contribution to the property of the company should be reflected in the composition of financial investments in the same way as the contribution to the authorized capital (on a separately open subaccount):

• Dt account 58 "Financial investments", subaccount "Contribution to the property of JSC", - CT account 75 "Settlements with founders";
• Dt account 75 - CT account 51, 01, 10, etc.

They explain this by the fact that in the future a member (shareholder) of the company will be able to claim money or other assets from these investments. After all, the society will use the received contributions in its activities to make a profit.

However, not everything is so simple. In fact, both approaches have the right to life. And which one to apply depends on the purpose of making a contribution to the property, as well as on other factors. Here is what the head of the audit company thinks about this.

EXPERIENCE EXCHANGE

General Director of AKG "Development Vector"

“The point is that costs are an outflow of economic benefits without a guarantee of an equal (or greater) inflow. That is, when transferring an advance (Dt 60 - Kt 51), the organization does not show the expense, since it is waiting for the goods for the same amount. And by purchasing financial investments (Dt 58 - Kt 51), the organization is guaranteed to have the right to a share in property or in dividends. As soon as this right is no longer guaranteed (for example, the issuer of shares has a bad financial position) - impairment of the asset is required.
Investments in a joint stock company on a non-refundable basis can be either through a contribution to the authorized capital, or in addition to it. When contributing to the authorized capital, the investor has a guaranteed right to dividends, to a certain share of votes in the management of the company and to the property of the company.
With an additional contribution, he does not acquire any of this, that is, the main condition for the recognition of financial investments is not met - the ability to generate income in the form of dividends, interest, and value growth. With an additional contribution, such an opportunity is present only conditionally, but by no means guaranteed, as it happens with a contribution to the authorized capital. In this case, the basic accounting principle is triggered: greater readiness to recognize expenses and liabilities than income and assets, therefore, an expense is recognized, not an asset. This is especially clearly manifested when additional deposits are made in order to cover losses (which happens in the overwhelming majority of cases).
It is a different matter if the shareholders decide to make contributions for the development of the company (for example, the construction of a new production site). In this case, the recognition of the asset is possible, since after the start of the new production, the shareholders have the right to expect an increase in profits and, accordingly, dividends.
Thus, the choice of the method of reflecting the contribution depends on the purpose of its introduction (there are no inappropriate contributions, since in order to fork out, the shareholder must understand why he needs to do this - he will not receive shares).
But the purpose of the introduction is not the only criterion, the decision making depends on many factors. For example, a shareholder has 1% of the shares, and he must make an additional contribution of 90% of the cost of future construction. Will he be able to get an increase in the funds deposited, that is, to recoup the contribution itself, and receive an additional inflow from dividends? Unlikely. And the shareholder will not be able to profitably sell his small volume of shares, even if the company now has a new plant, since the increase in property will be distributed in favor of the owners of the remaining 99% of the shares. That is, again, when making a contribution, it is required to recognize an expense, not an asset.
Therefore, modern accounting rarely allows you to come up with a rule "for all occasions" - most often the accountant needs to analyze the situation and make a professional decision in order to reliably reflect the impact of each transaction on the property status and financial results. "

With this in mind, you can choose the approach that best suits your situation. Running a little ahead, let's say that if you transfer a fixed asset or materials as a contribution, then the reflection of the contribution as part of financial investments will be an additional argument for you in favor of not charging VAT for such a transfer.

VAT

If your organization applies a simplified system, then when transferring a contribution to the property of a JSC, the issue of VAT does not arise at all. After all, you are not a payer of this tax but clause 2 of Art. 346.11 of the Tax Code of the Russian Federation.

Also, there will be no problems with VAT if you apply the general regime and contribute money as a contribution. There is no need to charge tax sub. 1 p. 3 art. 39, sub. 1 p. 2 art. 146 of the Tax Code of the Russian Federation; Letter of the Ministry of Finance dated June 28, 2013 No. 03-07-11 / 24898.

If, in the form of a contribution, you transfer non-monetary assets, for example, fixed assets or materials, then there are two options for action.

OPTION 1. Hassle-free. Agree with the regulatory authorities and charge VAT on the market value of the transferred property sub. 1 p. 1 of Art. 146, paragraph 2 of Art. 154 of the Tax Code of the Russian Federation... The fact is that they consider this operation as an ordinary gratuitous transfer of property, which, for VAT purposes, is recognized as a sale. ; Ministry of Finance of 08.21.2013 No. 03-07-08 / 34198,... And all because the transfer of non-monetary assets as a contribution to the property of the company is not named either in the list of transactions that are not subject to VAT, or in the list of transactions exempted from VAT. clause 2 of Art. 146, art. 149 of the Tax Code of the Russian Federation.

Although in normal implementation the invoice is drawn up in two copies (for the seller and the buyer), in this case you can draw up one copy. After all, you will not present tax to society, you will have to pay this VAT at your own expense. But you must register the compiled invoice in the invoice journal and the sales book. p. 3 of the Rules for maintaining the book of sales, approved. Government Decree of December 26, 2011 No. 1137 (hereinafter - Resolution No. 1137); p. 3 of the Rules for maintaining a journal of accounting of invoices, approved. Resolution No. 1137.

Well, since when transferring property you will charge VAT, then, of course, you will not have to restore the input VAT previously accepted for deduction on this property. Letters of the Ministry of Finance dated 21.08.2013 No. 03-07-08 / 34198, dated 15.07.2013 No. 03-07-14 / 27452.

OPTION 2. Controversial. Do not charge VAT on the transfer of property, since it is of an investment nature and, as a result, is not recognized as a sale for VAT purposes sub. 4 p. 3 art. 39 of the Tax Code of the Russian Federation... But before doing this, assess whether it is worth the candle.

Firstly, you will most likely have to sue the tax authorities for VAT exemption. We will be glad that the courts will certainly support you. Resolution of the CA ZSO dated December 18, 2014 No. A70-11281 / 2013; FAS VVO dated 03.12.2012 No. A29-10167 / 2011... Secondly, since you have recognized the transfer of property as investment, you will have to restore previously deductible VAT on this property from sub. 1, 2 p. 3 art. 170 of the Tax Code of the Russian Federation... According to the materials, the tax is restored in full, and for fixed assets - in proportion to the residual value on the date of transfer.

So the benefit is only possible if the recovered VAT turns out to be much less than the VAT charged on the market value (in case of option 1). Otherwise, it makes no sense to sue the inspectorate for non-accrual of VAT.

Income tax

For tax purposes, making a contribution to the property of the company has long been regarded by the regulatory authorities as an ordinary donation. And therefore, they do not allow to take into account in the "profitable" expenses neither the value of the transferred property, nor the amount of money contributed to the contribution. clause 16 of Art. 270 of the Tax Code of the Russian Federation; Letters of the Ministry of Finance dated 10.05.2006 No. 03-03-04 / 1/426, dated 14.03.2006 No. 03-03-04 / 1/222.

Also, tax authorities do not allow to include in expenses and amounts of accrued or recovered VAT from non-monetary property transferred to the contribution. After all, the Ministry of Finance believes that this is an expense associated with the gratuitous transfer of property and Letters of the Ministry of Finance dated 11.03.2010 No. 03-03-06 / 1/123, dated 08.12.2009 No. 03-03-06 / 1/792... If you do take this VAT into account in your expenses, then you will most likely have to defend the legality of your actions in court. And some courts support taxpayers.

What is in the account of the receiving party

Accounting

The Ministry of Finance proposes to reflect the contributions received from participants on the debit of the property account and the credit of account 83 "Additional capital l" Letter of the Ministry of Finance dated January 29, 2008 No. 07-05-06 / 18 (section "Submission by the audited entity of information on the contributions of the participants of the limited liability company to the property of the company"), dated April 13, 2005 No. 07-05-06 / 107:

• <если>money is deposited: Dt account 51 "Settlement accounts" - CT account 83;
• <если>property is entered: Dt accounts 01 "Fixed assets", 10 "Materials" - CT account 83.

This operation can be reflected in two records:

• Dt account 75 "Settlements with founders" - CT account 83;
• Dt accounts 51, 01, 10 - CT account 75.

That is, for JSCs, receiving contributions from participants is not income p. 2 PBU 9/99... And this is correct, because the increase in the value of the property of a joint-stock company occurs for reasons that do not depend on its activities.

Note that the PBU does not separately say at what cost it is necessary to reflect fixed assets or inventories received as a contribution to property. But given that the JSC does not pay anything for it, the property can be accounted for in the same way as the property received free of charge, that is, at the market value and p. 7 PBU 1/2008; clause 9 PBU 5/01; Clause 10 PBU 6/01... In this case, the market value can be considered the value that is agreed by the participants and is indicated in the documents on making a non-monetary contribution to the property (the agreement between the JSC and the shareholder, the decision of the shareholders).

VAT

When receiving money as a contribution to property, the JSC will not have to charge VAT. After all, their receipt is not associated with payment for goods sold (work, services) sub. 2 p. 1 art. 162 of the Tax Code of the Russian Federation; Letter of the Ministry of Finance dated 20.04.2012 No. 03-07-11 / 121.

If, however, you received non-monetary assets as a contribution to property and the shareholder nevertheless issued you an invoice with VAT, you still cannot accept it for deduction. Federal Tax Service letters dated 26.05.2015 No. GD-4-3 / [email protected]; Ministry of Finance of 27.07.2012 No. 03-07-11 / 197... After all, you do not pay anything for this property, that is, you receive it free of charge. And in this case, the invoice is not registered in the purchase book. sub. "A" clause 19 of the Rules for maintaining the book of purchases, approved. Resolution No. 1137... So you do not reflect this VAT either in accounting or in tax accounting.

Income tax

You may not pay income tax on the value of the property received from the shareholders if one of two conditions is met.

TELLING THE MANAGER

If the share of a shareholder in the authorized capital of a JSC is less than 50%, then in order to avoid paying income tax, it is necessary that in the contract (decision) it was stated that the contribution to the property is made in order to increase the net assets of the JSC.

CONDITION 1. The property is transferred to you for the purpose of increasing net assets. Then this should be directly indicated in the documents on making contributions (the agreement between the JSC and the shareholder, the decision of the shareholders). At the same time, the size of the share of a shareholder in the authorized capital of a JSC does not matter. Letter of the Ministry of Finance dated 09.02.2006 No. 03-03-04 / 1/100 ).

Can a JSC take the received property into account?

If the money is received, then there are no problems at all. The cost of fixed assets, inventories, works or services purchased with this money you take into account in expenses in the general order Letter of the Ministry of Finance dated 20.03.2012 No. 03-03-06 / 1/142... That is, in the same way as if you spent your own money on all this.

If fixed assets or inventories are received, then their cost can be taken into account in expenses only if it was taken into account in income. And since in this case you did not take into account anything in income, the tax value of fixed assets and inventories will be equal to zero Letters of the Ministry of Finance dated June 27, 2016 No. 03-03-06 / 1/37164, dated July 27, 2012 No. 03-07-11 / 197.

It turns out that the best investment is money. In this case, both the transmitting and receiving parties have no problems with taxes. Moreover, the JSC will be able to take into account all acquisitions at the expense of the money received.

Publication

Contributions to the authorized capital

It is possible to provide for in the constituent documents and pay for a significant authorized capital of the company both during its creation and in order to increase the capital.

A contribution to the authorized capital can be monetary funds, securities, property, property and other rights that have a monetary value.

The following aspects should be noted as the advantages of this form of financing:

Contributions to the authorized capital do not form the tax base for income tax (subparagraph 3 of paragraph 1 of article 251 of the Tax Code of the Russian Federation);

Contributions to the authorized capital are not subject to value added tax (subparagraph 4 of paragraph 3 of article 39 of the Tax Code of the Russian Federation).

Payment of shares / shares

When paying for shares (shares) in cash, no controversial issues arise. When making non-monetary contributions to the payment of shares (shares), the following points must be taken into account.

The receiving organization, as well as the transmitting one, does not have an income-loss upon receipt (transfer) of property in payment for shares (shares) (Article 277 of the Tax Code of the Russian Federation).

The property received in the form of a contribution to the authorized capital of the organization, for the purpose of taxation of profits, is taken at cost (residual value). The cost (residual value) is determined from the data tax accounting from the transferring party on the date of transfer of ownership of the specified property (property rights), taking into account the additional costs that, with such a contribution (contribution), are carried out by the transferring party, provided that these costs are determined as a contribution (contribution) to the authorized (joint) capital. If the receiving party cannot documentally confirm the value of the contributed property (property rights) or any part of it, then the value of this property (property rights) or part of it is recognized as zero.

As mentioned above, the contribution to the authorized capital is not subject to VAT.

But, if the property received as payment for the shares or shares being placed will be used in activities subject to VAT, then the company has the right to deduct VAT restored by the transferor (provided that these amounts are highlighted in the documents that formalize the transfer of the contribution to the charter capital (paragraph 3 subparagraph 1 of paragraph 3 of article 170, paragraph 11 of article 171, paragraph 8 of article 172 of the Tax Code of the Russian Federation)).

An invoice for deduction is not required, and the purchase book records the documents that formalize the transfer of property (clause 8 of the Rules for keeping logs of received and issued invoices, purchase books and sales books for value added tax calculations, hereinafter - Rules ).

The same documents (their copies) must be kept in the log book of received invoices (paragraph 4, clause 5 of the Rules). By virtue of paragraph 8 of Art. 172 of the Tax Code of the Russian Federation, these deductions are made after registration of property received as payment of a contribution to the authorized capital. The above norm is relevant only if the taxpayer accepted the specified VAT amounts for deduction (for example, he could use the simplified tax system and not pay VAT at all).

In the event that the amount of tax was not actually recovered by the transferor, the company has no right to deduction. This provision is confirmed by judicial practice, for example, the resolution of the Federal Antimonopoly Service of the Urals District dated January 27, 2009 No. F09-10568 / 08-C2. A prerequisite for accepting for deduction the amounts of VAT generated from the investment of property in the authorized capital is the restoration of the previously legally deductible VAT amounts by persons who invested property in the authorized capital.

Contribution of property to the authorized capital by an individual

Separately, it is necessary to dwell on the situation when the property in the authorized capital was contributed by an individual who is not individual entrepreneur... Is it possible in this case, having restored VAT, to take it for deduction?

Practice follows the path of an unequivocally negative answer to this question. Individuals are not initially VAT payers (Article 145 of the Tax Code of the Russian Federation). Therefore, when transferring property to the authorized capital, they should not restore VAT and allocate the amount of tax in the relevant documents.

However, even if the amount of VAT is allocated, the company is not entitled to accept it for deduction. So, in a specific case, the only member of the Company - an individual, transferred the property as a contribution to the authorized capital. The courts rightly pointed out that this individual, not being a VAT payer, was not entitled to deduct VAT (paid when purchasing goods). Accordingly, this individual did not need to restore the VAT amount in the accounting, since this amount was not presented for reimbursement from the budget and could not be presented by an individual who does not have the status of an entrepreneur and is not a VAT payer (resolution of the FAS North-West District of 29.08. 2008 No. A42-5628 / 2007).

The unambiguous disadvantage of this method of financing is that if at the end of the second and each subsequent financial year, the value of the company's net assets turns out to be less than its authorized capital, the company must declare a decrease in its authorized capital to an amount not exceeding the value of its net assets, and register such a decrease v established order... If, after this period, the value of net assets turns out to be less than the minimum size of the authorized capital, then the company is subject to liquidation (clause 3 of article 20 of the Federal Law of 08.02.98 No. 14-FZ "On Limited Liability Companies", hereinafter - Federal Law No. 14-FZ; clauses 4, 5, article 35 of the Federal Law of December 26, 1995 No. 208-FZ "On Joint Stock Companies", hereinafter - Federal Law No. 208-FZ).

Judicial practice here follows the path of providing society with an opportunity to improve its financial situation. For example, the court determined that the interrelated provisions of paragraph 4 of Art. 99 of the Civil Code of the Russian Federation and part 3 of Art. 20 of Federal Law No. 14-FZ does not imply that the company is subject to immediate liquidation as soon as net assets begin to decrease, but allows the founders to take the necessary measures to improve its financial condition. Taking into account the evidence presented that the financial condition of the company is stable, the requirements of the tax authority to liquidate the company are unfounded (Resolution of the Ural District dated 26.03.2009 No. Ф09-1563 / 09-С4).

In another case, the court refused to satisfy the application for the liquidation of the company. The court indicated that a separate violation of regulatory legal acts, admitted as when creating legal entity, and in the course of its activities, in itself cannot be the only reason for the termination of the activities of a legal entity through its liquidation, provided that this violation is removable. Consequently, the LLC is not subject to immediate liquidation as soon as the net assets began to decrease, since the founders can take the necessary measures to improve its financial condition (resolution of the Federal Antimonopoly Service Central District dated 26.02.2009 in case No. A68-2742 / 08-28 / GP-9-08).

However, there are also decisions in favor of the tax authorities. For example, the arbitration court satisfied the requirements of the tax authority to liquidate an LLC, since the value of the company's net assets for three years was less than the minimum amount of its authorized capital, and therefore, in accordance with Art. 20 of Federal Law No. 14-FZ, the company is subject to liquidation (resolution of the Federal Antimonopoly Service of the Volgo-Vyatka District of March 10, 2009 in case No. A43-22548 / 2008-19-481).

The claim for the liquidation of a legal entity was satisfied lawfully, since at the time of the tax audit, the value of the net assets of the latter was less than the minimum amount of the authorized capital (Resolution of the FAS of the Volgo-Vyatka District of 01/23/2009 in case No. А43-6947 / 2008-19-203) ...

Payment of shares (shares) above their par value

The current legislation provides for the possibility of payment of shares and shares in an amount exceeding their par value. This is possible both during the initial acquisition of shares (stocks) and in the process of increasing the authorized capital. As a result, the so-called share premium on shares or the difference between the cost of paying for a share in the authorized capital of an LLC and the nominal value of such a share is formed.

This difference and share premium obtained in this way do not increase the authorized capital of the companies and are not taken into account as income when determining the tax base for corporate income tax (subparagraph 3, clause 1 of article 251 of the Tax Code of the Russian Federation).

Judicial practice in this area is on the side of the taxpayer. An example is the following case. The Inspectorate considered that the taxpayer unlawfully did not include income in the form of income in the form of the difference between the market and nominal value of the contribution to the authorized capital in the income subject to income tax. As indicated by the court, recognizing the position of the Inspectorate unlawful, the fact that the market value of the contribution to the authorized capital of the company, made by its new participant, with a par value of 3800 rubles. (the share is 19% of the authorized capital of the company) is 103,800,000 rubles., does not change the essence of monetary funds as a contribution to the authorized capital of the company, by virtue of sub. 3 p. 1 of Art. 251 of the Tax Code of the Russian Federation not subject to income tax (resolution of the Federal Antimonopoly Service of the Central District of 23.10.2008 No. A62-1202 / 2008).

From the above, it can be seen that this method of financing has an advantage over the usual payment of shares (shares), since it makes it possible to maintain a small amount of the authorized capital, which, accordingly, entails a decrease in the risks that are possible if the amount of the authorized capital following the results of the second and each subsequent financial year will exceed the amount of the net assets of the company. Also, the liability of the participants (shareholders) of the company to creditors is limited by the size of their shares (shares).

VAT evasion schemes using contributions to the authorized capital

Let us dwell a little on the abuses by taxpayers related to the payment of shares, shares in the authorized capital, which have already been well studied by the tax authorities.

The first method is the use of a contribution to the authorized capital as a way to evade VAT payment.

When using a contribution to the authorized capital as a method of evading VAT payment, the transfer of property to the authorized capital of a company is not carried out for the purpose of acquiring shares (stakes) to obtain income from investments, but is actually aimed at the alienation (sale) of the company's property for the purpose of non-payment of VAT upon its sale ...

The transferring party receives in return the share of participation in the receiving party and sells them, thereby receiving an equivalent compensation for the property contributed to the authorized capital and without paying VAT.

Such a scheme was considered by the arbitration court, the conclusions of which are contained in the resolution of the FAS of the North Caucasus District of 20.11.2006 No. F08-5894 / 2006-2447A. The judicial authority concluded that the transfer of funds to the authorized capital was not of an investment nature and therefore could not be exempted from VAT.

The second method is to receive VAT refunds from the budget by a person who did not actually pay for the goods.

The funds are transferred from the parent organization to the subsidiary, and the latter almost immediately pays with these funds for the goods purchased from the parent organization. In the scheme, one more intermediate link can be used through which funds are transferred. In this case, the paying party for the goods is not directly related to the organization - the supplier of the goods. As a result, the goods are transferred to the party that did not pay any money for it and received the right to a VAT deduction, and the money originally deposited is returned to the parent parent organization.

At the same time, often the actual goods remain in the warehouse of the parent organization. In this regard, the decree of the Federal Antimonopoly Service of the North Caucasian District of 05.04.2006 No. F08-1281 / 2006-548A is noteworthy. The court concluded that the transaction to increase the authorized capital in cash and the payment on the account of these funds for the work performed in favor of the organization financing the authorized capital the next day represent the payment of invoices of one organization with invoices of the same organization. For this reason, in this situation, there is no statutory condition for VAT refund - payment at the expense of the organization's own funds.

Contributions to the property of the company as a method of financing

This method of financing can only be used in relation to a subsidiary. Advantages of this form of financing:

the authorized capital does not increase, and, therefore, the risks associated with the excess of the authorized capital over the net assets of the company are minimized;

no changes are required in the constituent documents and no registration procedures are required with the Federal Tax Service and the Federal Financial Markets Service of Russia 1;

no involvement required independent appraiser when making contributions to the property of the company;

subject to sub. 11 p. 1 art. 251 of the Tax Code of the Russian Federation, the company does not have taxable non-operating income;

there is no tax base for VAT;

The legislation does not contain restrictions on the size and frequency of making deposits.

Legal regulation

The possibility of making contributions to the property of the company is provided for by Art. 27 of Federal Law No. 14-FZ. For its implementation, it is necessary that the obligation to make contributions to the property of the company is contained in the Charter of the LLC.

The deposit itself is carried out on the basis of the decision of the general meeting of participants. Contributions are made by all members of the company in proportion to their shares in the charter capital of the company, unless a different procedure is provided for by the Charter. Failure to fulfill this obligation by a participant gives the company the right to require the participant to make an appropriate contribution. As a general rule, contributions are made in cash, unless otherwise provided by the charter or the decision of the general meeting of the company's participants.

It is necessary to consider this legal institution from a civil and tax point of view. From the point of view of corporate law, a contribution to the company's property is not a gratuitous transfer of funds, since it increases the actual value of the share, which each participant has the right to demand upon leaving the membership of the LLC. This conclusion is confirmed by the materials of judicial practice (decisions of the Federal Antimonopoly Service of the Moscow District of January 23, 2006 No. KA-A40 / 13961-05-P, of March 09, 2007 No. KA-A40 / 875-07, FAS of the West Siberian District of 05/04/2006 No. F04 -5209/2005 (22104-A27-3)).

From a tax point of view, a contribution to the property of a company is considered a gratuitous transfer of funds. Part 2 of Art. 248 of the Tax Code of the Russian Federation contains a provision according to which property (work, services) or property rights are considered received free of charge if the receipt of this property (work, services) or property rights is not associated with the recipient's obligation to transfer property (property rights) to the transferor (perform work for the transferor, provide services to the transferor).

In this case, the company does not have such an obligation, therefore, the property received in accordance with Art. 27 of Federal Law No. 14-FZ, should be considered as non-operating income in accordance with clause 8 of Art. 250 of the Tax Code of the Russian Federation. An exception to this rule is contained in sub. 11 p. 1 art. 251 of the Tax Code of the Russian Federation, according to which, when determining the tax base for income tax, income in the form of property received by a Russian organization free of charge from:

■ an organization, if the authorized (joint-stock) capital (fund) of the receiving party consists of more than 50% of the contribution (share) of the transferring organization;

■ an organization, if the authorized (share) capital (fund) of the transferring party consists of more than 50% of the contribution (share) of the receiving organization;

■ of an individual, if the authorized (share) capital (fund) of the receiving party consists of more than 50% of the contribution (share) of this individual.

In this case, the property received is not recognized as income for tax purposes only if, within one year from the date of its receipt, the specified property (except for monetary funds) is not transferred to third parties.

Thus, the use of a contribution to the company's property as a method of financing an LLC is associated with the attribution of such property to non-operating income as property received free of charge, with the exception of the intra-holding transfer of funds in accordance with subpara. 11 p. 1 art. 251 of the Tax Code of the Russian Federation.

Contribution to the property of JSC

A separate discussion deserves the question of whether it is possible to carry out such a procedure as a contribution to the property of a joint-stock company.

The legislation on joint stock companies does not provide for the possibility of making contributions to the property of the company. But there is also no prohibition on the implementation of this procedure. Subparagraph 11, part 1 of Art. 251 of the Tax Code of the Russian Federation does not contain a reference to the type of business entity that can take advantage of this privilege. There is also a letter from the Ministry of Finance of Russia dated 09.11.2006 No. 03-03-04 / 1/736, in which the financial department notes that sub. 11 p. 1 art. 251 of the Tax Code of the Russian Federation is applied regardless of the form in which the organization was created (OJSC, CJSC, LLC, etc.).

If the contribution to the property of a joint-stock company is made by a shareholder - a legal entity, then a certain conflict arises. On the one hand, civil law prohibits donations between commercial organizations (even if it is a subsidiary and parent company). On the other hand, formally signed. 11 p. 1 art. 251 of the Tax Code of the Russian Federation allows the free transfer of property, without specifying for which business companies it is possible.

Considering this situation, it is necessary to take into account that the Tax Code of the Russian Federation does not regulate civil law relations - it can only determine their tax consequences.

On the one hand, since there is no prohibition, it is possible to apply the analogy of the law and make a contribution according to the rules established in Federal Law No. 14-FZ, in compliance with the restrictions on donation (donation issues will be discussed in detail below). By making a contribution to the property of a joint-stock company, a shareholder expects the development of the company, an increase in its liquidity and, as a result, an increase in the market value of its shares, an increase in the amount of dividends paid. This includes arguments in favor of the absence of donation from a civil point of view.

But, despite this, it is impossible to exclude the risk of recognition of this transaction in court as invalid (resolution of the Federal Antimonopoly Service of the Moscow District of 05.12.2005, 18.11.2005 No. KA-A40 / 11321-05).

If you do not consider civil law qualifications, then the tax consequences will not differ from those associated with an LLC. These contributions will be considered a donation of funds. If the contribution is made by a shareholder owning more than 50% of the authorized capital, non-operating income will not arise. If financing is provided by a shareholder owning less than 51%, then the company will have non-operating income.

The resolution of the Federal Antimonopoly Service of the Moscow District of 20.02.2008 No. KA-A41 / 420-08 contains confirmation that the property received free of charge can be excluded from the tax base from the joint stock company. In this resolution, the application for invalidating the decision of the tax authority on the collection of penalties for income tax was satisfied lawfully, since the applicant legitimately did not take into account the property received by him as a result of taxation. Russian organization free of charge from the organization, since the authorized capital of the transferring party consists of more than 50% of the contribution of the receiving party.

The benefit provided by sub. 1 p. 1 of Art. 251 of the Tax Code of the Russian Federation, according to which the property received is not recognized as income for tax purposes, is valid provided that within one year from the date of its receipt, the specified property (except for monetary funds) is not transferred to third parties. As can be seen from the above norm, problems arise if property was transferred in non-monetary form. What problematic situations can arise here?

Transfer of property received free of charge from the parent (subsidiary) organization within a year on a title other than ownership

If the received property is transferred for lease, trust management, use, pledge, as well as when transferring property on any other right that does not entail the transfer of ownership, the taxpayer does not have the right to apply the benefits provided for in sub. 11 p. 1 art. 251 of the Tax Code of the Russian Federation. Confirmation of this is contained in the letter of the Ministry of Finance of Russia dated 09.02.2006 No. 03-03-04 / 1/100.

There is also judicial practice confirming this position, for example, the resolution of the Federal Antimonopoly Service of the Moscow District dated 01.09.2008 No. KA-A40 / 8012-08. In the opinion of the court, a taxpayer transferring property for free use cannot apply the exemption under sub. 11 p. 1 art. 251 of the Tax Code of the Russian Federation.

The person who contributed to the property of the company did not fully pay his share (share)

Failure to pay a share in the authorized capital of an LLC does not affect the application of the tax benefit subp. 11 p. 1 art. 251 of the Tax Code of the Russian Federation. This is confirmed by multiple judicial practice. Thus, the arbitration court noted that “Art. 251 sub. 11 clause 1 of the Tax Code of the Russian Federation binds the right to a benefit not with the amount of the actually contributed authorized capital, but with the share of the receiving party in the authorized capital of the transferring party, which must be at least 50% and does not require full payment of the authorized capital at the time the benefits are presented ”(resolution FAS of the Moscow District of June 15, 2006 No. KA-A41 / 5286-06).

But if the share (share) is not paid within a year from the date of registration of the company, the ownership of it will pass to the company. And in this case, there will be completely different consequences.

The person who contributed to the property of the company left the membership

The withdrawal of the transferor from the membership during the year does not affect the application of the tax benefit sub. 11 p. 1 art. 251 of the Tax Code of the Russian Federation. This is confirmed by the conclusion contained in the resolution of the FAS of the Far Eastern District of 12/30/2005 No. F03-A73 / 05-2 / 4367. The court concluded that the withdrawal of an individual from the founders of the company before the end of the year does not change the legal status of these funds as received free of charge and not subject to accounting as income when determining the taxable base for income tax.

VAT when making a contribution to the property of the company

An analysis of the legislation on the subject of whether VAT is levied on transactions on deposits in the company's property in cash allows us to draw a reasonable conclusion that there is no obligation to pay the said tax.

The object of VAT taxation are operations on the sale of goods (works, services), including on a gratuitous basis (Article 146 of the Tax Code of the Russian Federation). However, money acts as a universal means of payment, and not as a product, work or service. For the purpose of taxing VAT, the transfer of funds, not related to payments for goods, works or services, within the meaning of Art. 39 and 146 of the Tax Code of the Russian Federation is not recognized as a sale. Making a contribution to the property of the company is of an investment nature (subparagraph 4 of paragraph 3 of article 39 of the Tax Code of the Russian Federation), that is, it is an operation that is not recognized as a sale for tax purposes.

Thus, in the case of making a contribution to the property of the company in cash, the transferor does not have an obligation to pay VAT. There is no object of taxation from the receiving party (clause 3 of article 153 of the Tax Code of the Russian Federation): the funds received are not related to payments for goods (works, services).

Is making a non-monetary contribution to property subject to VAT? There are two points of view on this score.

The first point of view, which the author of this article also adheres to, is that the transfer of property as a participant's contribution to the property of a subsidiary is considered as an investment transfer (subparagraph 4 of paragraph 3 of article 39 of the Tax Code of the Russian Federation), i.e. • as a transaction not recognized as a sale for tax purposes.

Making a contribution to the property of the company affects the increase in the size of its net assets and, consequently, on the amount of net profit distributed among the participants, therefore, it can be concluded that making this contribution is of an investment nature. There is a positive judicial practice confirming this position (for example, the resolution of the Federal Antimonopoly Service of the Central District of 20.02.2007 in case No. A-62-3799 / 2006).

However, a different point of view is expressed in the legal literature: when any material values ​​are transferred as a contribution to property, the ownership right to them is transferred from the participant to the society; for VAT purposes, the transfer of ownership of property (including on a gratuitous basis) is recognized as a sale. Consequently, the participant must charge VAT on the value of the property transferred to the company.

Thus, contributions to the company's property entail tax consequences in the form of taxable non-operating income, unless they are accepted from a parent or subsidiary organization or an individual - a majority participant or shareholder.

conclusions

Summing up, we can conclude that each of the considered financing methods, if used correctly, taking into account a specific situation, can be beneficial. The least risky and most profitable from the point of view of tax consequences can be called such a method of financing as the payment of shares (shares) above their nominal value and the gratuitous transfer of funds between parent and subsidiary organizations (contributions to the property of the company), subject to the conditions provided for in sub. 11 p. 1 art. 251 of the Tax Code of the Russian Federation.

1 federal Service on financial markets Russian Federation.

Contributions to property: a fresh analytical cut of taxCOACH and features of its application in practice.

Often, to ensure the property security of the business and the efficient use of property in the Group of Companies, a redistribution of assets is required. The economic meaning of the transfer of property in a holding structure is objectively different from the sale or other form of its transfer to third parties, because in fact we are transferring assets from one “our pocket” to another. Accordingly, the taxation of these transactions has its own characteristics: tax legislation provides for a tax-free transfer of assets within holding structures.

The practice of applying these norms is already almost settled. Less and less often, the tax authorities charge, calling the transfer of property within the Group of companies a gift that is prohibited between legal entities. Nevertheless, there are some fundamental nuances that affect the success of the entire asset transfer procedure, including taking into account the amendments made to the Tax Code of the Russian Federation.

Recall that the tax-free transfer of assets between related companies is different and includes, for example, such methods as contribution to, reorganization in the form of spin-off, etc.

Today we will focus on one of these ways - contributions to property without increasing the authorized capital of the organization when a participant (shareholder) transfers certain benefits to his company (cash, shares (shares) in other legal entities, real estate, etc.) to improve its financial and / or property status. At the same time, the authorized capital does not increase, the nominal size of the participants' shares does not change.

The civil law grounds for contributions to property are Article 66.1 of the Civil Code of the Russian Federation, Art. 27 of the Law "On LLC", Art. 32.2 of the Law "On JSC".

If the charter of the receiving party is standard and does not contain detailed norms, then the contribution to the property is possible only in money and only in proportion to all participants (shareholders). In LLC, the decision on the contribution to the property is made by at least 2/3 votes. V joint stock company making a contribution is possible on the basis of an agreement approved by the Board of Directors, or by decision of the general meeting of shareholders.

Wherein the Tax Code provides for two preferential mechanisms, which allow you to exempt inherently gratuitous deposits from taxation:

1. Gratuitous transfer of property on the basis of subparagraph 11 of clause 1 of article 251 of the Tax Code of the Russian Federation. By itself, it is possible in two forms:

transfer of property from a “mother” or an individual participant (shareholder) in favor of an organization, the authorized capital of which consists of more than 50% of the contribution of the transferor;

"Child gift". This is a transfer from the subsidiary to the parent company, which owns more than 50% of the subsidiary's charter capital.

2. Contribution to the property of a business company or partnership from its participant or shareholder (clause 3.7 of clause 1 of article 251 of the Tax Code).

In other words, the Tax Code divorced these grounds, including by the time they appeared in the law, endowing them with some peculiarities of application.

Let's consider the mechanisms in detail.

1. Gratuitous transfer of property under subparagraph 11, paragraph 1 of Art. 251 of the Tax Code of the Russian Federation

At first, only property can be transferred... Money is property.

That is, this rule does not apply to property and non-property rights (assignment of claims, corporate rights, intellectual property rights, etc.). Violation of these conditions will result in additional accrual of income tax, penalties and fines.

Exemption from taxation in accordance with paragraphs. 11 p. 1 art. 251 of the Tax Code also applies to debt forgiveness.

Secondly, it is impossible to transfer it to third parties within one year from the date of receipt of the property (with the exception of funds).

In other words, significant restrictions are imposed on the use of property: it cannot be sold, leased or otherwise disposed of. The logic of the legislator is clear - a kind of help of a member of his company is exempt from taxation, because he transferred the property for its own use, and not for rent, for example.

As a result, the transfer of assets on the basis of cl. 11 p. 1 art. 251 NK in certain situations seems impossible. However, these restrictions do not apply to deposits in the order of sub. 3.7 p. 1 of Art. 251 NK.

2. Contribution to property according to sub. 3.7. clause 1 of Art. 251 of the Tax Code of the Russian Federation.

Subp. 3.7. clause 1 of Art. 251 of the Tax Code allows the participants to be exempted from taxation both in the form of property and in the form of property or non-property rights. In this case, the size of the participant's share does not matter.

3.7) in the form of property, property rights or non-property rights in the amount of their monetary value, which are received as a contribution to the property of a business company or partnership in the manner prescribed by the civil legislation of the Russian Federation

Tax Code of the Russian Federation

The provisions of this clause apply to virtually any method of increasing property, including an increase in the company's assets in the form of a transfer of things, cash, stakes / shares in companies or securities, or, for example, rights of claim under an assignment agreement.

Subclause 3.7, clause 1 of article 251 is new and appeared in the Tax Code only in 2018. It replaced the famous clause 3.4, which is popularly known as “contribution to increase net assets”. Subclause 3.7 has a more concise content, referring to civil law - you can transfer everything that is allowed by the Civil Code of the Russian Federation and special laws.

Nevertheless, this method of tax-free transfer also has its limitations:

Property, property or non-property rights may be transferred only from the participant (shareholder) the relevant business community. That is, the transfer in the opposite direction - from the subsidiary to the parent company - is impossible.

Contributions to property are only possible in relation to business companies or partnerships... For example, in production cooperative such a contribution cannot be made without tax consequences.

3. "Daughter gift"

The Tax Code allows the transfer of property without taxes not only from the "mother", but also in the opposite direction - from the "daughter" to the company - "mother". The exemption is granted in accordance with subparagraph 11 of clause 1 of article 251 of the Tax Code, subject to an important condition - the share of the parent company in the authorized capital of the subsidiary is more than 50%.

Important!

To transfer a "child gift" to a participant - natural person without taxes it will not work. Such payment will be equal to dividends.

At some point, the tax authorities had problems with the “daughter gift”: they persistently charged income tax when transferring property to parent organizations, arguing that donation was prohibited between legal entities.

The point in this case was put by the Presidium of the Supreme Arbitration Court of the Russian Federation, indicating in its Resolution:

“Economic relations between the parent company and subsidiary companies may imply not only the investment of the parent company in the property of the subsidiary at the stage of its establishment, but also at any stage of its activity. In addition, the economic feasibility in the relationship between the subsidiary and the parent company may necessitate the transfer of property back. At the same time, the absence of direct counter-provision is a feature of the relationship between the main and subsidiary companies, which are, from an economic point of view, a single economic entity. "

Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of December 4, 2012 No. 8989/12

After that, the Ministry of Finance of the Russian Federation also supports the possibility of a tax-free “subsidiary gift”.

In some cases, a “daughter gift” is an alternative to the payment of dividends when the conditions for a tax-free transfer of the amount of profit from the subsidiary to the parent organization are not met, in particular:

the holding period of 365 days has not been met;

in addition to the majority shareholder with a share of more than 50%, there are minority shareholders who do not want to “distribute profits” in favor of which: dividends are distributed in most cases proportionally, and such a requirement is not imposed on a “child gift”.

Forgiveness of debt

As we have already mentioned, sub. 3.7. clause 1 of Art. 251 of the Tax Code of the Russian Federation replaced subparagraph 3.4, which directly provided for the possibility of contributing to property by forgiving a debt by a participant in his organization.

Article 251. Income not taken into account when determining the tax base

1. When determining the tax base, the following income is not taken into account:

3.4) in the form of property, property rights or non-property rights in the amount of their monetary value, which are transferred to a business company or partnership in order to increase net assets ... 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 obligation business company or partnership to the relevant shareholders or participants ...

Tax Code of the Russian Federation as amended up to 31.12.2017

There is currently no such clarification, although the possibility is still relevant.

Let's see if it is now possible to forgive debt without taxes.

When the share of participation is more than 50%, then we can confidently refer to the already known to us sub. 11 p. 1 art. 251 of the Tax Code of the Russian Federation.

If the share of participation in a subsidiary is less than 50%, then we can only be guided by the new subparagraph 3.7 of clause 1 of article 251 of the Tax Code of the Russian Federation.

Neither the RF Ministry of Finance nor the courts have yet voiced their position.

We believe that you can get out of the situation in this way:

At the first stage, the participant (shareholder) or the general meeting, as before, makes a decision on making a contribution to the property. But not in the form of debt forgiveness, but by transferring funds, the amount of which is just equal to the debt formed before him (for example, the amount of an outstanding loan).

The decision is made, but not executed.

At the second stage, the participant (shareholder) - the creditor signs an agreement with the subsidiary company on the offset of counterclaims (in our example with a loan - obligations to repay the loan and make a monetary contribution).

As a result, the liability of the subsidiary to the member is extinguished tax-free.

For reliability, it is advisable to include a provision on the possibility of making contributions to property not only in money in the charter of a subsidiary company, as well as in the application of paragraph 3.4 that has become invalid.

A spoon of tar. VAT

But what will happen if a participant, for example, a company on the OSN, donates not money, but property as a contribution? Is this transaction subject to VAT? Yes and no. In the sense that the transfer of property itself is not subject to VAT, but the transferring party (if it is common system taxation) must recover VAT on the residual value of the property. In this case, the recovered value added tax can be included in expenses.

But the receiving party will not be able to accept VAT for deduction, since it did not pay money for this property, because the contribution to the property is a kind of gratuitous transfer. So you can't do without a fly in the ointment ...

How to return a contribution to property

The contribution to the property is irrevocable: it cannot be claimed back, unlike a loan.

A kind of return on investments made is possible only in the form of dividends. The same as for investments in the form of a contribution to the authorized capital.

However, unlike contributions to the authorized capital, the amount of contributions made to property will not count towards the cost of acquiring a share (shares) upon the subsequent sale of the share (shares), exit or liquidation of the company.

This injustice will probably be eliminated soon. The State Duma is considering a bill according to which the receipt by the parent organization from the "daughter" of funds within the previously made contribution to the property will not be subject to income tax.

If the bill is passed, there will be a tax-free way to "return" deposits, along with dividends, which in some cases are taxed at a rate of 13%.

"Underwater rocks"

Any tax-free transactions traditionally attract the attention of regulatory authorities. Property contributions are no exception.

The tax authorities may try to recognize the transfer of property and (or) property / non-property rights between "related" organizations as economically unjustified, if reasonable " business purpose»Will be difficult to distinguish.

For example, a new member contributes generously and leaves the company immediately. Tax authority with a high probability will say that the lender “investor” did not intend to participate in the company's activities and receive profit from these activities, and his only purpose when entering the business was the tax-free transfer of expensive property or funds.

TaxCOACH® example

Let us 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 (while the area of ​​each store allows the use of UTII). However, what about the profit of each operating point? You can use the already known property contribution! Retail companies establish (we will designate it as an investment center) and contribute the agreed funds received from the sale of products as contributions to property. 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.

Deal form

Also, do not forget about the formalities. As a rule, a decision of the authorized body of a legal entity on the transfer of property to a subsidiary or parent company, as well as an act of acceptance and transfer of property, is sufficient for the Federal Tax Service.

If the transfer of rights to property requires registration, then Rosreestr sometimes requires the preparation of an appropriate document - agreement (agreement) for the alienation of property, property and non-property rights for investment purposes.

The agreement will need to mention the following:

transferred object - property, property and non-property rights. Requisites must allow to carry out state registration transfer of rights, if necessary, as well as properly put the asset on the balance of the receiving party;

the purposes of the transfer - they must be of an investment nature. This is necessary to emphasize the right to exemption from VAT when transferring property;

legal grounds for the transfer of property: subp. 3.7 or sub. 11 p. 1 art. 251 NK.

So, we briefly summarize the main features of the gratuitous transfer of property:

Instead of the total, we once again denote MAIN ABSTRACTS:

Contribution to property is an operational method of tax-free transfer of funds and other property of a subsidiary. It is not required to visit a notary and make changes to the constituent documents, which is mandatory when increasing the authorized capital.

The Tax Code of the Russian Federation provides for two preferential mechanisms - subparagraph 3.7 and subparagraph 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation. Each of them offers interesting opportunities, but also not without its limitations. Therefore, we carefully read the law and choose the appropriate method for a specific situation.

Do not forget that in order to make a contribution to property, the Charter of the company should provide for such an opportunity for its participants, including the ability to make contributions disproportionate to participation in the authorized capital, as well as any property, property rights or by forgiving a debt.

Subclause 11, clause 1 of article 251 of the Tax Code of the Russian Federation also makes it possible to transfer back - from a “daughter” to a mother organization, whose share in the authorized capital is more than 50%. We called this a "child gift". It can be an alternative to the payment of dividends, for example, when, in addition to the majority shareholder with a share of more than 50%, there are minority shareholders who do not want to “distribute the profit” in favor of which: dividends are distributed in most cases proportionally, and such a requirement is not imposed on a “child gift”.