How to increase the authorized capital at the expense of retained earnings. How to reflect in the accounting an increase in the authorized capital of an LLC at the expense of its own property. Increase of authorized capital in joint-stock companies

If the company works successfully and after paying all taxes it has retained earnings, then its founders have the right to increase authorized capital society for the amount of this profit.

In accordance with paragraph 1 of Article 18 of Law N 14-FZ, an increase in the authorized capital of a company at the expense of its property is carried out by decision general meeting participants. This decision must be voted for by at least 2/3 of the total number of votes of the participants in the company. However, the need for a larger number of votes to make such a decision may be provided for in the company's charter. At the same time, a decision to increase the authorized capital of a company at the expense of its property can be made only on the basis of data from the financial statements for the year that preceded the year during which such a decision was made.

In accounting, this operation is reflected easily:

Debit 84 "Retained earnings (uncovered loss) Credit 80.

As we already know, information about the amount of the authorized capital of the company and the size of the share of each of its founders is contained in the charter and the memorandum of association of the company - paragraph 1 of Article 12 of Law N 14-FZ. Therefore, with an increase in the authorized capital of a company, appropriate changes must be made to its constituent documents. These changes are subject to state registration in the same state body where the company was originally registered, that is, at present with the tax office.

As a rule, the increase in the nominal shares of the founders at the expense of the retained earnings of the firm is made in proportion to their existing shares. Thus, the percentage of the share of each founder to the total amount of the authorized capital of the company does not change. Only the nominal value of the share changes. So it is spelled out in paragraph 3 of Article 18 of Law N 14-FZ.

However, the same law establishes an important restriction on the way to increase the authorized capital of a company at the expense of its property. It is contained in paragraph 2 of Article 18 of Law No. 14-FZ. It says that the amount by which the charter capital of a company is increased at the expense of its property should not exceed the difference between the value of the company's net assets and the amount of its charter capital and reserve fund.

The company's net assets are calculated based on the requirements set out in the order of the Ministry of Finance of Russia and the Federal Commission for the Securities Market of Russia dated January 29, 2003 N 10n, 03-6 / pz. Although the procedure for calculating net assets contained in this document is prescribed only for joint stock companies, practice shows that companies with limited liability can also use it.

Determining the amount of net assets is not difficult. To do this, you need to find the difference between the assets and liabilities of the balance sheet of the company involved in the calculation. The composition of assets must be included outside current assets, which are reflected in the first section of the balance sheet, and current assets, shown in its second section. In this case, the debts of the founders for contributions to the authorized capital are excluded from the calculation.

The liabilities should include long-term commitments on loans and credits and other long-term commitments, short-term commitments on loans and credits, accounts payable, debts to founders for payment of income, reserves for future expenses and other short-term liabilities.

To put it simply, net assets are the amount that would remain at the disposal of the firm if it suddenly repaid all its liabilities at a time. This is the asset that the firm can "freely" dispose of, since it is not bound by any counter-obligation.

Let us recall that if, according to the results, the value of the company's net assets is less than the authorized capital, then it is obliged to reduce it. This requirement for limited liability companies is contained in paragraph 4 of Article 90 of the Civil Code of the Russian Federation.

If the firm does not do this, then its creditors may well require it to return their money. At the same time, the tax inspectorate, as a registering body, will have the right to apply to the court with a demand for the compulsory liquidation of the company.

But all these issues can be completely resolved at the level of the founders of the company. Much more significant is the problem of paying personal income tax from the amount of increasing the share of founders at the expense of retained earnings.

There are two completely opposite points of view on this issue. Let's figure it out.

The first point of view, which is disadvantageous to taxpayers, is supported not only by employees of the Ministry of Finance of Russia, but also by a large number of specialists. It consists in the following.

There are situations when it is necessary to increase the authorized capital at the expense of the profit received. This raises the question of how best to do this, given the tax implications of this step.

The easiest way for owners to achieve this goal is not to withdraw profits from the company, having decided to increase the authorized capital at the expense of retained earnings. An alternative is to distribute dividends, and then increase the authorized capital through additional contributions. Let's analyze the tax implications of each method.

The easiest route leads to double taxation

An increase in the authorized capital at the expense of the company's property (retained earnings) leads to a proportional increase in the nominal value of the shares of all participants (clause 2 of article 17, clause 3 of article 18 of the Federal Law of 08.02.98 No. 14-FZ "On limited liability companies "). As a result of such a decision, the society itself does not have income owners.

However, the Russian Ministry of Finance is confident that the income comes from the participants. And from this income taxes must be paid during the period of registration of changes to the charter of the company. Such clarifications are given in letters dated 09.11.11 No. 03-03-06 / 1/732, dated 26.09.11 No. 03-03-06 / 1/588, dated 25.08.11 No. 03-03-06 / 1/518 ( in relation to legal entities) and letters dated 26.01.07 No. 03-03-06 / 1/33, dated 17.09.12 No. 03-04-06 / 4-281 (in relation to individuals). I agree with the regulatory authorities, in particular, the Constitutional Court of the Russian Federation (ruling No. 81-О-О dated January 16, 2009) and the Federal Arbitration Court of the North Caucasus District (resolution dated December 02, 2010 No. A32-38158 / 2009).

Note that with an increase in the par value of shares due to retained earnings, the JSC does not generate income in accordance with the special rule of subparagraph 15 of paragraph 1 of article 251 of the Tax Code of the Russian Federation. According to officials, this benefit is targeted and does not apply to LLCs.

In some cases, the courts came to the conclusion that at the time of the increase in the authorized capital, the member of the company did not receive income. Indeed, this does not change the actual shares of the participants in the authorized capital of the company, their property (obligation) rights. Real income arises from the sale of a share increased in nominal terms (decisions of the Federal Arbitration Courts of Moscow No.KA-A41 / 1046-09 dated February 26, 2009, No. No. A29-5650 / 2007, North Caucasian districts dated February 25, 2010 No. A32-38158 / 2009-51 / 646, Volga districts dated February 16, 2009 No. A65-11409 / 2006).

It turns out that it is possible to defend the legality of a tax-free increase in the authorized capital at the expense of the company's retained earnings only through a court of law. Therefore, in our calculations, we will proceed from the more common practice - the income of the participants arises and the tax is paid during the period of registration of changes to the company's charter.

In the long term, the troubles of the participants with the payment of tax after the increase in the authorized capital does not end there. When they decide to get rid of their share, they will have to pay tax on the same amount again.

It does not matter in what way the legal entity decides to part with the share in the LLC - to sell, leave the company and receive the actual value of the share, or liquidate the company and receive the property upon distribution. In any case, the participant will not pay income tax only on the cost of the initial contribution and related expenses (subparagraph 2.1, paragraph 1 of article 268, subparagraph 4 of paragraph 1 of article 251 of the Tax Code of the Russian Federation).

Individuals reduce the income received by the amount of the deposit only when the share is sold (subparagraph 1 of paragraph 1 of article 220 of the Tax Code of the Russian Federation). It is logical to reduce this income by the amount of income from which the tax was previously paid - as provided for in relation to transactions with securities (paragraph 8, clause 13 of article 214.1 of the Tax Code of the Russian Federation). But for transactions with property rights, there is no similar rule, as well as the right to include in expenses at least the amount of previously paid tax.

In the event of a withdrawal from society or its liquidation, the consequences for individual participants are even worse. According to the Ministry of Finance of Russia (letters dated 15.06.12 No. 03-04-06 / 3-170, dated 07.06.12 No. 03-04-06 / 3-157, dated 21.06.10 No. 03-04-06 / 2-126 , dated 06.09.10 No. 03-04-06 / 2-204), in such situations, article 220 of the Tax Code of the Russian Federation does not apply and the entire amount received is the income.

Consequently, this method of increasing the authorized capital of an LLC is potentially problematic.

Alternative way: receive, then give

It is also possible to increase the authorized capital at the expense of retained earnings in a roundabout way. At the expense of the property of the owners, by making additional contributions (Art. 19 of Law No. 14FZ). For this, the founders of the company first receive dividends (distribute profits), then decide to increase the authorized capital and make additional contributions.

For subsequent transactions with shares, taxation is governed by the previously mentioned rules. But the amount of participants' contributions includes additional contributions. Only individuals will have to pay the tax again upon liquidation of an LLC or exit from it. In these cases, it is possible to recommend the individual participant to sell his share to a legal entity.

If profits are distributed first, the tax burden is reduced by almost half.

Obviously, the option with the payment of dividends is more convenient from a tax point of view. It not only allows in the process of increasing the authorized capital to pay taxes in a smaller amount compared to the first option, but in the future the owners will be able to take into account the amount of the additional contribution when receiving income from the disposal of the share.

However, in the practical implementation of the alternative method, the question arises at whose expense to pay taxes arising from the payment of dividends. That is, should these amounts be deducted from the capitalized profit or the amount of increase in the authorized capital should be left unchanged. And the participants will take taxes at their own expense. Consider the tax consequences of all the described scenarios (see table).

On numbers

The authorized capital of the LLC is 100 thousand rubles. Both participants have equal shares - 50 percent each (50 thousand rubles). The profit of the LLC to be distributed is 200 thousand rubles, each of the participants accounts for 100 thousand rubles. (20050%). In the first option, the profit was capitalized. In the second and third, dividends were distributed and made additional investments in the amount of received dividends (second option) and distributed (with additional investments in the amount of tax withheld by LLC - third option). After some time, both participants sell their shares at a price of 225 thousand rubles.

Comparison of options for increasing the authorized capital

The founder and his company [From the creation of the LLC to the exit from it] Anischenko Alexander Vladimirovich

2.4. Increase of the authorized capital due to retained earnings

If the company works successfully and after paying all taxes it has retained earnings, then its founders have the right to increase the authorized capital of the company by the amount of this profit.

In accordance with paragraph 1 of Article 18 of Law N 14-FZ, an increase in the authorized capital of a company at the expense of its property is carried out by decision of the general meeting of participants. This decision must be voted for by at least 2/3 of the total number of votes of the participants in the company. However, the need for a larger number of votes to make such a decision may be provided for in the company's charter. At the same time, a decision to increase the authorized capital of a company at the expense of its property can be made only on the basis of data from the financial statements for the year that preceded the year during which such a decision was made.

In accounting, this operation is reflected easily:

Debit 84 Retained earnings (uncovered loss) Credit 80.

As we already know, information about the amount of the authorized capital of the company and the size of the share of each of its founders is contained in the charter and the memorandum of association of the company - paragraph 1 of Article 12 of Law N 14-FZ. Therefore, with an increase in the authorized capital of a company, appropriate changes must be made to its constituent documents. These changes are subject to state registration in the same state body where the company was originally registered, that is, at present with the tax office.

As a rule, the increase in the nominal shares of the founders at the expense of the retained earnings of the firm is made in proportion to their existing shares. Thus, the percentage of the share of each founder to the total amount of the authorized capital of the company does not change. Only the nominal value of the share changes. So it is spelled out in paragraph 3 of Article 18 of Law N 14-FZ.

However, the same law establishes an important restriction on the way to increase the authorized capital of a company at the expense of its property. It is contained in paragraph 2 of Article 18 of Law No. 14-FZ. It says that the amount by which the charter capital of a company is increased at the expense of its property should not exceed the difference between the value of the company's net assets and the amount of its charter capital and reserve fund.

The company's net assets are calculated based on the requirements set out in the order of the Ministry of Finance of Russia and the Federal Commission for the Securities Market of Russia dated January 29, 2003 N 10n, 03-6 / pz. Although the procedure for calculating net assets contained in this document is prescribed only for joint stock companies, practice shows that limited liability companies can also use it.

Determining the amount of net assets is not difficult. To do this, you need to find the difference between the assets and liabilities of the balance sheet of the company involved in the calculation. The composition of assets must include non-current assets, which are reflected in the first section of the balance sheet, and current assets, shown in its second section. In this case, the debts of the founders for contributions to the authorized capital are excluded from the calculation.

The liabilities should include long-term commitments on loans and credits and other long-term commitments, short-term commitments on loans and credits, accounts payable, debts to founders for payment of income, reserves for future expenses and other short-term liabilities.

To put it simply, net assets are the amount that would remain at the disposal of the firm if it suddenly repaid all its liabilities at a time. This is the asset that the firm can "freely" dispose of, since it is not bound by any counter-obligation.

Let us recall that if, according to the results, the value of the company's net assets is less than the authorized capital, then it is obliged to reduce it. This requirement for limited liability companies is contained in paragraph 4 of Article 90 of the Civil Code of the Russian Federation.

If the firm does not do this, then its creditors may well require it to return their money. At the same time, the tax inspectorate, as a registering body, will have the right to apply to the court with a demand for the compulsory liquidation of the company.

But all these issues can be completely resolved at the level of the founders of the company. Much more significant is the problem of paying personal income tax from the amount of increasing the share of founders at the expense of retained earnings.

There are two completely opposite points of view on this issue. Let's figure it out.

The first point of view, which is disadvantageous to taxpayers, is supported not only by employees of the Ministry of Finance of Russia, but also by a large number of specialists. It consists in the following.

According to article 209 of the Tax Code of the Russian Federation, the object of taxation for personal income tax is income received by taxpayers. According to paragraph 1 of Article 210 of the Tax Code of the Russian Federation, when determining the tax base, all income of the taxpayer, received by him both in cash and in kind, or the right to dispose of which he has arisen, as well as income in the form of material benefit, determined in accordance with article 212 of the Tax Code of the Russian Federation.

The income received from the company by its founders in the form of the difference between the new and original par value of the property share in the authorized capital is not subject to personal income tax in only one case - if the increase in the par value of the founders' share is carried out as a result of revaluation of the company's fixed assets. For this, the Tax Code of the Russian Federation has a special clause 19 of Article 217.

And if the increase in the share occurred as a result of the distribution of the company's profits, then there is no reason to exempt such income from personal income tax. According to experts who adhere to this point of view, the taxpayer should be guided by subparagraph 10 of paragraph 1 of Article 208 of the Tax Code of the Russian Federation, that is, the increase in the nominal value should be attributed to "other income received by the taxpayer as a result of his activities in the Russian Federation."

The tax authorities and the accounting employees who joined them are not lost in determining the date of receipt of income. In accordance with paragraph 3 of Article 225 of the Tax Code of the Russian Federation, the total amount of personal income tax is calculated based on the results of the tax period in relation to all income of the taxpayer, the date of receipt of which relates to the relevant tax period. It turns out that the taxpayer's obligation to pay tax is associated with the fact of receiving income. At the same time, it does not matter whether the income was actually received or whether the taxpayer has just acquired the right to dispose of it.

Thus, in the case under consideration, the date of receipt of income is the date of the decision to increase the authorized capital of the company and, accordingly, the par value of the shares of each participant.

Well? Seems quite logical? Let's now look at the arguments of the opponents.

They rely not only on quotes from Chapter 23 "Personal Income Tax" of the Tax Code of the Russian Federation, but operate with definitions throughout the Tax Code of the Russian Federation, as well as the Civil Code of the Russian Federation and Law N 14-FZ.

Indeed, they say, the object taxation of personal income tax is the income received by the taxpayer. But what is income? Its definition is given in article 41 of the Tax Code of the Russian Federation - it is an economic benefit in cash or in kind. And what happens when the authorized capital is increased?

As stated in paragraph 1 of Article 87 of the Civil Code of the Russian Federation, a limited liability company is commercial organization, the authorized capital of which is divided into shares, the sizes of which are determined in constituent documents... The company is an independent legal entity and owns property. At the same time, please note that the property of the company is separated from the property of its founders.

Thus, the founder does not have ownership of the property of the company created by him. He has in relation to him the rights of obligation, certified by shares, as indicated in paragraph 2 of Article 48 of the Civil Code of the Russian Federation. These rights are as follows:

the right to receive net profit in proportion to the share of the founder;

the right to receive the actual value of the share (in cash or in kind) in the event of the withdrawal or expulsion of the founder from the company;

the right to a part of the company's property after its liquidation;

the right to participate in the management of the company, to receive information about its activities, etc.

It is easy to see that the first 3 groups of rights are property rights. When any of these rights are actually exercised, the owner of the share receives income, for example, dividends, the actual value of the share in money or property. In this case, the property of the company really becomes the property of its participant. There are no other such cases in the legislation.

The founders of a limited liability company have the right to increase the authorized capital of the company at the expense of its retained earnings. However, after all, the profit distributed in this way does not go directly to the participants, it actually remains in the ownership of the society. Only the nominal value of the shares of the founders increases. In other words, the potential for them to make a profit.

This potential will actually be realized only when the owners of the shares exercise any of their property rights granted to them by their shares in the authorized capital. Yes, that's when such income will already be subject to personal income tax. But the increase in the authorized capital at the expense of the retained earnings of the company does not in itself entail income for its founders.

In addition, it is inappropriate to equate the increase in the nominal shares of the founders at the expense of retained earnings and income in kind. After all, what is a share in the authorized capital? This is a complex property right of a participant, as well as some related non-property rights. And in article 211 of the Tax Code of the Russian Federation, the in-kind form of income is defined as the receipt of goods, works, services or other property. So, in tax legislation, thanks to paragraph 2 of Article 38 of the Tax Code of the Russian Federation, the concept of "property" does not include "property rights". Therefore, the increment in the share of the founder cannot be defined as the receipt by him of income in kind.

By itself, an increase in the nominal size of the share does not lead to a decision on the distribution of profits and their payment. And without this, the founder of the company does not have actual income, which means that there will be no object of personal income tax.

Oddly enough, but confirmation of such a position can be found in the letter of the Ministry of Finance of Russia dated January 8, 2004 N 04-04-06 / 5. Although it is an answer to a particular request, this answer is given in general terms, and therefore applies to other similar situations. The following was said there.

“The difference between the new and the original value of the shares of the participants of the limited liability company, formed in connection with the increase in the authorized capital at the expense of retained earnings, is the income of the participants of the company, which is subject to taxation.

At the same time, in accordance with paragraph 1 of Article 223 of the Code, the date of actual receipt of income in cash is determined as the day of payment of income.

If the payment of income is carried out only after the sale (sale) of the share of a member of the company, the payment of tax is made within the established time frame for the relevant tax period to which the actual date of receipt of the above income belongs. " That's it!

On the other hand, when answering the same private request, the same Ministry of Finance of Russia in a letter dated September 30, 2004 N 03-05-01-04 / 29 warmly supported the first point of view on this issue.

They agreed that "a change in the size of the authorized capital of a limited liability company in itself is not subject to taxation on personal income tax." However, "the difference between the new and the original par value of the shares of the participants of the limited liability company, formed in connection with the increase in the authorized capital of the limited liability company at the expense of retained earnings, is the income of the participants of the company, received in kind, subject to taxation."

Both the first and second letters were signed by the deputy directors of the same Department of the Ministry of Finance of Russia. Apparently, there is no unanimity among officials either.

So what do you do? What will happen if you do not argue with them in court, but agree with their demand?

Then, on the basis of subparagraphs 1 and 3 of Article 226 of the Tax Code of the Russian Federation, the company will be a tax agent for personal income tax. Therefore, it is obliged to calculate, withhold from taxpayers and pay the amount of personal income tax to the budget.

It is good if the founders are also employees of the company. Then the amount of tax can be withheld from his accrued wages when it is actually paid. At the same time, on the basis of clause 4 of Article 226 of the Tax Code of the Russian Federation, the withheld amount of personal income tax cannot exceed 50% of the payment amount. Withholding personal income tax from the wages of employees is reflected by posting:

Debit 70 Credit 68 "Settlements for personal income tax".

According to the decision of the general meeting of founders of LLC "Orion", held on April 27, 2005, part of the retained earnings of 2004 in the amount of 100,000 rubles. was aimed at increasing the authorized capital of the company. Changes to the founding documents of the company were registered in May 2005.

The founders of the company work in it and receive wages... Consequently, the society can withhold personal income tax directly from the income paid to it.

If the company "follows the lead" of the tax authorities, then it will have to make the following entries:

In May 2005:

Debit 84 Credit 80

RUB 100,000 - reflected an increase in the authorized capital of the company due to retained earnings.

In June 2005:

Debit 70 Credit 68 "Settlements for personal income tax"

RUB 13,000 (100,000 rubles x 13%) - withholding personal income tax, calculated from the income of the founders of the company;

Debit 68 subaccount "Personal income tax settlements" Credit 51

RUB 13,000 - withholding tax is transferred to the budget.

The situation is worse if the founders do not work in the society and do not receive any money from it. Since the company is not able to withhold personal income tax, each founder must calculate and pay tax on his own on the basis of subparagraph 4 of paragraph 1 of Article 228 of the Tax Code of the Russian Federation. In this case, the company, within a month from the moment of increasing the nominal share of the founder, must inform tax office that he is not able to withhold personal income tax from a citizen. This is a requirement of paragraph 5 of Article 226 of the Tax Code of the Russian Federation. In addition, at the end of the year, the company must submit to the tax office form N 2-NDFL with the relevant information on the basis of paragraph 2 of Article 230 of the Tax Code of the Russian Federation. This information is submitted no later than April 1 of the year following the year of the increase in the nominal size of the founder's share.

Note!

The payment of personal income tax at the expense of tax agents is not allowed. When concluding agreements and other transactions, it is prohibited to include tax clauses in them, in accordance with which tax agents paying income assume obligations to bear the costs associated with the payment of tax for individuals. This is a condition of the Tax Code of the Russian Federation - it is spelled out in paragraph 9 of Article 226 of the Tax Code of the Russian Federation.

2.1. Formation of the authorized capital In accordance with paragraph 1 of Article 14 of the Federal Law of February 8, 1998 N 14-FZ "On Limited Liability Companies" (hereinafter - Law N 14-FZ), the size of the authorized capital of the company and the nominal value of the participants' shares