Capital increase through retained earnings. YOU: an increase in the authorized capital at the expense of retained earnings of previous years does not entail income for the founder. Changes to the charter

The difference between the initial and new par value of the share of an individual - a participant in an LLC, arising from an increase in the authorized capital at the expense of retained earnings, is not the income of the founder and is not subject to personal income tax. This conclusion was reached by the Supreme Arbitration Court in the ruling of 11.10.13 No. VAS-13599/13 on the refusal to transfer the case to the Presidium of the Supreme Arbitration Court of the Russian Federation.

The essence of the conflict

The general meeting of members of the limited liability company made a decision to increase its charter capital at the expense of retained earnings from previous years from 8 million to 150 million rubles. Accordingly, the nominal value of the shares of all three members of this company (individuals) increased. The tax authorities considered that the resulting difference between the new and the original value of the share is the income of the participants in the company, and therefore is subject to personal income tax. Since the tax was not withheld and paid, the inspectors assessed additional income tax to the LLC. individuals, penalties and a fine in the amount of 13 million rubles. By the way, the Ministry of Finance of Russia confirms the legitimacy of this approach. According to officials of the financial department, income in the form of the difference between the initial and increased par value of the share is subject to personal income tax. In this case, LLC in this case acts as a tax agent (see "").

Judges decision

The arbitrators of all instances, including the board of the Supreme Arbitration Court of the Russian Federation, made a decision in favor of the company. The judges reasoned as follows. Tax object taxation of personal income tax is the income received by the taxpayer (Article 209 of the Tax Code of the Russian Federation). And income is an economic benefit in cash or in kind (Article 41 of the Tax Code of the Russian Federation). According to civil law, in the event of an increase in the authorized capital of an LLC at the expense of its retained earnings, this profit remains the separate property of the company and does not go to the participants of the LLC. For the latter, only the nominal value of their shares increases (clause 1 of article 87 of the Civil Code of the Russian Federation, clause 2 of article 48 of the Civil Code of the Russian Federation). The real economic benefit will appear only when the property rights associated with participation in the authorized capital of the company are realized. In the event of the sale of a share, the income received will indeed be subject to personal income tax. By itself, the fact of an increase in the authorized capital does not entail the emergence of income for the participant. On this basis, the court recognized the additional accrual of personal income tax unlawful.

"Income tax: accounting for income and expenses", 2011, N 12

At the end of the financial year, many companies need to decide on what to spend the net profit received for reporting period... There are several options here. This profit can be used to pay dividends, create a reserve or any other fund, pay off losses of previous years, increase authorized capital, and other purposes (for example, to pay material assistance or employee benefits). It is about increasing the authorized capital of a JSC or LLC at the expense of retained earnings that will be discussed today.

What are the features of this procedure in JSCs and LLCs? Will it be considered income for tax purposes: for LLC participants - the difference between the new and old par value of the share; for shareholders of JSC - the difference between the par value of the new shares and the original? How can and authorized capital increase, and save on income tax?

Increase of authorized capital in joint-stock companies

According to the Law on JSC<1>net profit can be distributed to:

• payment of dividends. Distribution is made on the basis of a decision (announcement) on the payment of dividends on the outstanding shares. As a rule, the company has the right to make such a decision based on the results of the first quarter, six months, nine months of the financial year and (or) based on the results of the financial year (clause 1 of article 42 of the JSC Law);
• creation of a reserve fund (in the amount stipulated by the charter of the company, but not less than 5% of its authorized capital) (clause 1 of article 35 of the Law on JSC);
• formation of a special fund for corporatisation of the company's employees (provided for by the company's charter). Its funds are spent exclusively on the purchase of shares of the company, sold by the shareholders of this company, for subsequent placement by its employees (clause 2 of article 35 of the Law on JSC);
• increase the authorized capital.

For your information. Decision-making on the distribution of net profit (losses) of a JSC based on the results of the financial year is within the exclusive competence of the general meeting of shareholders of the company (clause 1 of article 47, clause 11 of clause 1 of article 48 of the Law on JSC).

As follows from paragraph 1 of Art. 28 of the Law on JSC, the authorized capital of a joint-stock company can be increased by:

• increase in the par value of shares;
• placement of additional shares.

In the first case, the decision to increase the authorized capital of the company is made by the general meeting of shareholders, in the second - by the general meeting of shareholders or the board of directors (supervisory board) of the company, if, in accordance with the charter, he is granted the right to make such a decision (clause 2 of article 28 of the Law on AO).

An increase in the authorized capital by placing additional shares can be carried out at the expense of the company's property. An increase in the authorized capital by increasing the par value of shares is carried out only at the expense of the company's property. This is stated in paragraph 5 of Art. 28 of the Law on JSC.

It is also indicated here that the amount by which the authorized capital is increased at the expense of the company's property should not exceed the difference between the value of the company's net assets and the amount of its authorized capital and reserve fund. The procedure for assessing the value of the net assets of joint-stock companies was approved by the joint Order of the Ministry of Finance of Russia N 10n, Federal Commission for the Securities Market of Russia N 03-6 / pz dated January 29, 2003. According to clause 1 of this Procedure, the value of the company's net assets is understood to be the value determined by subtracting from the amount of assets accepted for calculation, the amount of the company's liabilities accepted for calculation. The assets (liabilities) involved in the calculation are listed in clause 3 (clause 4) of the Procedure.

When the authorized capital of a joint-stock company is increased at the expense of its property by placing additional shares, these shares are distributed among all shareholders. In this case, each shareholder is allocated shares of the same category (type) as the shares that he owns, in proportion to the number of shares he owns. An increase in the authorized capital of a company at the expense of its property by placing additional shares, as a result of which fractional shares are formed, is not allowed (clause 5 of article 28 of the Law on JSC). (The placement of additional shares, as a result of which fractional shares are formed, is not allowed. If the JSC already had fractional shares, then the shareholder - the holder of such shares, upon the distribution of additional shares, will receive a certain number of whole shares and fractional shares.)

Example 1... The authorized capital of CJSC "Mercury" is 1,000,000 rubles. and consists of 100 shares with a par value of 10,000 rubles.

The company has a reserve fund in the amount of 200,000 rubles.

The value of his net assets is 4,700,000 rubles.

Retained earnings of previous years - 4,100,000 rubles.

The maximum amount by which the authorized capital of CJSC "Mercury" can be increased is 3,500,000 rubles. (4,700,000 - 1,000,000 - 200,000).

Option 1. Shareholders of CJSC "Mercury" made a decision to increase the authorized capital by increasing the par value of shares.

In this case, the cost of each share will increase by 35,000 rubles. (3,500,000 rubles / 100 shares) and will amount to 45,000 rubles. (10,000 + 35,000).

Option 2. Shareholders of CJSC "Mercury" made a decision to increase the authorized capital by placing additional shares.

Let's calculate how many additional shares will fall on each share. For this, the maximum amount by which the authorized capital can be increased (3,500,000 rubles) should be divided by the amount of the authorized capital (1,000,000 rubles). It turns out that there will be 3.5 per share. That is, fractional shares were formed, which is prohibited by paragraph 5 of Art. 28 of the Law on JSC. Therefore, the maximum allowable amount by which the authorized capital can be increased by placing additional shares will be 3,000,000 rubles, then each share will have 3 additionally placed shares (3,000,000 rubles / 1,000,000 rubles).

Suppose two shareholders each had 2.5 shares. In this case, each of them will receive 7.5 additional shares (3 shares x 2.5). In total, these two shareholders will have 10 shares each (7.5 + 2.5).

An increase in the authorized capital of a JSC requires amendments to the charter of the company. Such a change in accordance with paragraph 2 of Art. 12 of the JSC Law is carried out based on the results of the placement of shares on the basis of the decision of the general meeting of shareholders to increase the authorized capital or the decision of the board of directors (supervisory board) of the company, if the latter, according to the charter, has the right to make such a decision.

Changes and additions to the company's charter are subject to state registration with the body that carries out state registration of legal entities (FTS), in the manner prescribed by the Federal Law on State Registration of Legal Entities (Article 13, Clause 1, Article 14 of the JSC Law). These changes become effective for third parties from the moment of their state registration (clause 2 of article 14 of the Law on JSC).

Increase of authorized capital in limited liability companies

According to the LLC Law<2>the net profit of a limited liability company can be used as follows:

• distributed among its members. The adoption of such a decision is within the competence of the general meeting of the company's participants (subparagraph 7 of paragraph 2 of article 33 of the Law on LLC). Moreover, the decision can be made quarterly, once every six months or once a year (clause 1 of article 28 of the Law on LLC);
• the company can create a reserve fund and other funds in the manner and amount provided for by the charter of the company (Article 30 of the Law on LLC). Note that the creation of a reserve fund is a right, not an obligation of an LLC (as opposed to a JSC);
• LLC can increase its authorized capital.

According to Art. 17 of the LLC Law, an increase in the authorized capital of a company is allowed only after full payment(p. 1). This increase can be carried out at the expense of the property of the company, and (or) at the expense of additional contributions of the members of the company, and (or), if it is not prohibited by the charter of the company, at the expense of contributions of third parties accepted into the company (clause 2).

As a rule, this increase is carried out by the decision of the general meeting of the company's participants, adopted by a majority of at least 2/3 of the total number of votes of the participants. Moreover, the decision can be made only on the basis of the data of the company's financial statements for the year preceding the year during which such a decision was made (clause 1 of article 18 of the Law on LLC).

Note! According to paragraph 2 of Art. 18 of the Law on LLC, the amount by which the authorized capital of the company is increased at the expense of the property of the company should not exceed the difference between the value of the company's net assets and the amount of the authorized capital and the reserve fund of the company.

By virtue of paragraph 3 of Art. 20 of the LLC Law, the value of the company's net assets is determined in accordance with the procedure established by federal law and issued in accordance with it. regulations... However, such a procedure has not been established. According to the Ministry of Finance, LLC has the right to use the methodology for calculating net assets intended for JSC (Letters dated January 27, 2010 N 03-02-07 / 1-27, dated December 07, 2009 N 03-03-06 / 1/791, dated December 17. 2008 N 03-03-06 / 1/696).

With an increase in the authorized capital of a company at the expense of net profit, the nominal value of the shares of all participants in the company increases proportionally without changing the size of their shares (clause 3 of article 18 of the Law on LLC).

Example 2... The authorized capital of Mars LLC is 200,000 rubles:

• 30% of the authorized capital belongs to participant 1 (the par value of the share is 60,000 rubles);
• 70% - to participant 2 (par value of the share - 140,000 rubles).

The number of participants in the company and the ratio of their shares are unchanged.

The company has a reserve fund in the amount of 30,000 rubles.

The cost of his net assets is 370,000 rubles.

Retained earnings at the end of 2010 amounted to 190,000 rubles.

The amount by which the authorized capital of Mars LLC can be increased will amount to 140,000 rubles. (370,000 - 200,000 - 30,000). By the decision of the company's participants, the net profit in the indicated amount is directed to increase the authorized capital.

After the increase, the size of the authorized capital amounted to 340,000 rubles. (200,000 rubles + 140,000 rubles). At the same time, the shares of the participants remain the same (30% and 70%), only the nominal value of the shares increases. For participant 1, it will be 102,000 rubles. (340,000 rubles x 30%), participant 2 - 238,000 rubles. (340,000 rubles x 70%).

Amendments to the charter in connection with changes in the amount of the authorized capital and the par value of the company's shares must be registered. For this purpose, it is necessary to submit the documents listed in clause 1 of Art. 17 Federal Law N 129-FZ<3>:

• an application for state registration of changes to the charter of an LLC, signed by a person acting as a sole proprietor executive body society, in the form of N P13001<4>... The application confirms that the changes being made comply with the requirements established by the legislation of the Russian Federation, the information contained in the charter and the statement is reliable and the procedure for making a decision on amendments to the charter of an LLC provided for by the Federal Law has been observed;
• decision to amend the charter of the company;
• changes made to the constituent document of the company;
• document confirming the payment of the state fee. In accordance with paragraphs. 3 p. 1 of Art. 333.33 of the Tax Code of the Russian Federation, the amount of the fee for state registration of changes made to constituent documents legal entity, today is 800 rubles.

The listed documents must be submitted to the registering authority within a month from the date of the decision to increase the authorized capital at the expense of the retained earnings of the company (clause 4 of article 18 of the Law on LLC). It is from the moment of state registration that these changes become effective for third parties.

Income tax

In cases where the company's net profit is used to increase its authorized capital, the question arises as to whether it will be considered income for tax purposes:

• for LLC participants - the difference between the new and old par value of the share;
• for shareholders of JSC - the difference between the par value of the new shares and the original?

Organizations - shareholders of JSC. For taxpayers-shareholders, the situation with an increase in the authorized capital of a joint-stock company is directly spelled out in Ch. 25 of the Tax Code of the Russian Federation, therefore, does not raise any special questions. So, according to paragraphs. 15 p. 1 of Art. 251 of the Tax Code of the Russian Federation when determining the tax base income is not taken into account as:

• the value of the shares additionally received by the shareholder organization, distributed among the shareholders by the decision of the general meeting in proportion to the number of shares they own;
• the difference between the par value of the new shares received instead of the initial ones and the original shares of a shareholder when distributing shares among shareholders when the authorized capital of a joint-stock company is increased (without changing the share of the shareholder in this company).

Thus, if the share of a shareholder in a joint-stock company does not change, then with an increase in the par value of shares, the shareholder does not receive income for tax purposes of corporate profits (Letter of the Ministry of Finance of Russia dated 24.10.2011 N 03-03-06 / 1/685).

Organizations - members of the LLC. But with taxpayers - members of an LLC, everything is much more complicated. According to the Ministry of Finance, the norm prescribed in paragraphs. 15 p. 1 of Art. 251 of the Tax Code of the Russian Federation, does not apply to them. He believes that with an increase in the nominal value of shares in the authorized capital without changing the shares of participants, as, for example, when distributing retained earnings of previous years, these organizations have non-operating income taxed on profit in accordance with paragraph 1 of Art. 284 of the Tax Code of the Russian Federation (see Letters of 09/26/2011 N 03-03-06 / 1/588, of 08/25/2011 N 03-03-06 / 1/518, of 06/08/2011 N 03-03-06 / 3 / 4, dated 12.03.2010 N 03-04-06 / 2-30).

We believe that if the organization does not adhere to the Ministry of Finance's approach, then it will not avoid disputes with the tax inspection. You may have to prove your case in court. Let us give an example of a successful resolution of the issue for a taxpayer - Resolution of the Federal Antimonopoly Service on February 16, 2009 N A65-11409 / 2006.

The essence of the matter was as follows. According to the tax authority, the organization, in violation of paragraph 1 of Art. 250 of the Tax Code of the Russian Federation unreasonably did not include income from equity participation in an LLC in the taxable base for income tax, which served as the basis for additional income tax.

The judges indicated the following. In accordance with the basic principles of legislation on taxes and fees, recognizing the universality and equality of taxation (clause 1 of article 3 of the Tax Code of the Russian Federation), an increase in the share in the authorized capital of an LLC, as well as in a JSC, is exempt from taxation. The principles of universality and equality of taxation, non-differentiation depending on the forms of ownership, social, racial or other criteria (including the organizational and legal form) are enshrined in paragraph 1 of Art. 3 of the Tax Code of the Russian Federation.

Limited Liability Company in accordance with clause 1 of Art. 87 of the Civil Code of the Russian Federation is considered a commercial organization, the authorized capital of which is divided into shares of sizes determined by the constituent documents. Society is self-reliant legal entity and owns the property by right of ownership, while the property of the company is separated from the property of its founders (participants).

By virtue of paragraph 2 of Art. 48 of the Civil Code of the Russian Federation, a company participant does not have ownership of the property of the created organization, but has in relation to it the rights of obligation, certified by shares.

Based on the analysis of the norms of the Law on LLC, the judges concluded that the share certifies the participant's right to receive net profit in proportion to the share (Art.28), to receive the actual value of the share (in cash and in kind) in the event of withdrawal or exclusion of the participant (cl. 4 Art. 23 and Art. 26), part of the property of the company after its liquidation (paragraph 7, clause 1 of Art. 8). When these rights are exercised, the owner of the share receives income, for example, in the case of payment of a part of the company's profit to him.

The members of the company can decide to increase the authorized capital at the expense of retained earnings, while the profit does not pass to the participants, but remains the separate property of the company. Participants only increase the nominal value of their shares. The owners of the shares will receive real economic benefits only when any of the property rights are realized.

Consequently, as rightfully indicated in previously adopted judicial acts, an organization - a member of the company does not have economic benefits and income, as well as a taxable base for calculating profits, because an increase in capital due to retained earnings of the company, which does not change the actual shares of the participants in the authorized capital , does not lead to a change in their property (obligation) rights.

Foreign organizations - members of the LLC. According to the Ministry of Finance, income tax is also levied on the income of foreign organizations - members of an LLC, obtained as a result of an increase in the authorized capital of an LLC at the expense of retained earnings of previous years. In the Letter dated 07.10.2011 N 03-08-05, the financiers indicated: according to paragraphs. 2 p. 1 art. 309 of the Tax Code of the Russian Federation, income of a foreign organization from sources in the Russian Federation subject to tax withheld at the source of payment of income includes income received as a result of distribution of profits or property of organizations, other persons or their associations in favor of foreign organizations. Tax on these types of income is calculated at the rate provided for in paragraphs. 1 p. 2 art. 284 of the Tax Code of the Russian Federation, - 20%.

If the foreign organization is a resident of a state with which Russian Federation an international treaty on the avoidance of double taxation has been concluded, the norms of the relevant international treaty are subject to application.

Accounting

According to the Instructions for the application of the Chart of Accounts, account 80 "Authorized Capital" is intended to summarize information on the state and movement of the authorized capital of the organization. The balance on this account must correspond to the size of the authorized capital, fixed in the constituent documents of the organization. Account 80 entries are made during the formation of the authorized capital, as well as in cases of an increase and decrease in capital only after the appropriate amendments are made to the constituent documents.

An increase in the authorized capital at the expense of retained earnings in accounting is reflected by an entry on the credit of account 80 in correspondence with the debit of account 84 "Retained earnings (uncovered loss)".

Analytical accounting for account 80 "Authorized capital" is organized in such a way as to ensure the formation of information on the founders of the organization, stages of capital formation and types of shares.

A few words for the organization - a member of the LLC. The share of the LLC participant is reflected upon acquisition on account 58 "Financial investments" at the initial cost and in the event of an increase in the authorized capital of the company at the expense of retained earnings, it does not change, since the participant has no acquisition costs (clauses 8, 18 PBU 19/02 "Accounting for financial investments"<5>).

<5>Approved by Order of the Ministry of Finance of Russia dated December 10, 2002 N 126n.

If the participant is guided by the opinion of the financial department, then in tax accounting he recognizes income from participation in an LLC, and income will not arise in accounting. In this case, in accordance with clauses 4, 7 of PBU 18/02 "Accounting for calculations of corporate income tax"<6>there is a permanent difference in accounting and the corresponding permanent tax liability (PNL). PNO is reflected in the accounting records on debit 99 "Permanent tax liabilities" and credit 68 "Calculations of taxes and fees".

<6>Approved by Order of the Ministry of Finance of Russia dated November 19, 2002 N 114n.

Example 3... Let's use the data of example 2. Suppose that the tax accounting of Mars LLC reflects non-operating income in the form of the difference between the new and old nominal value of the participants' shares.

The following entries will be made in the accounting records of Mars LLC:

Optimization for LLC

So, as noted above, the official position regarding the need to pay income tax by organizations - members of the LLC is that they are not subject to the provisions of paragraphs. 15 p. 1 of Art. 251 of the Tax Code of the Russian Federation, which means that they must pay income tax from the difference between the new and old par value of the share. We have cited a positive example from arbitration practice, nevertheless, there is no need to talk about a trend - we could not find similar examples in reference and legal databases. It is impossible to imagine how the judges will behave in such a case. And not all organizations have the ability and desire to sue. Therefore, you have to look for "workarounds" in order to save on income tax on a legal basis.

Suppose that the participants of the LLC (legal entities) decide to increase the authorized capital of the company, while they do not want to argue with the tax inspectorate on the issue of including the amount of the increase in the authorized capital in the income.

Example 4... The authorized capital of Jupiter LLC is 1,000,000 rubles:

• 40% of the authorized capital belongs to Venera LLC (the par value of the share is 400,000 rubles);
• 35% - LLC Saturn (par value of the share - 350,000 rubles);
• 25% - LLC "Pluton" (par value of the share - 250,000 rubles).

In September 2011, at the general meeting of participants, it was decided to increase the authorized capital by 2,000,000 rubles. at the expense of the net profit of previous years. The nominal value of the shares of all participants in the company increases proportionally without changing the size of their shares.

The participants are not going to argue with the tax office and decide to pay income tax on the difference between the new and old par value of the share.

The size of the authorized capital after the increase will be 3,000,000 rubles. (1,000,000 + 2,000,000).

The new par value of the participants' shares will be:

• from LLC "Venera" - 1,200,000 rubles. (RUB 3,000,000 x 40%);
• from OOO Saturn - 1,050,000 rubles. (RUB 3,000,000 x 35%);
• from LLC "Pluton" - 750,000 rubles. (3,000,000 rubles x 25%).

Let's calculate the amount of income tax that each of the participants must pay (based on the rate of 20%).

Can participants somehow save on income tax?

As an option, you can offer the following: first, draw up a decision on the payment of dividends, and then deposit into the settlement account of the LLC cash by increasing the authorized capital. The LLC will withhold 9% from the amount of dividends received - not 20% from the difference between the old and new par value of the share.

Let's consider an example of obtaining savings.

Example 5... Let's use the data from Example 4.

On September 2, 2011, at the general meeting of participants, it was decided to pay dividends at the expense of retained earnings of previous years in the amount of 2,000,000 rubles. in proportion to the size of the shares of the participants. In the same month, dividends were transferred to the settlement accounts of the participants.

On October 5, 2011, at the general meeting of participants, it was decided to increase the size of the authorized capital by 2,000,000 rubles.<7>.

<7>We believe that these two decisions should be made on different dates so that the tax inspectorate has no reason to doubt the reliability of these transactions. It is desirable that the amounts appear differently. For example, 2 200 000 rubles were allocated for the payment of dividends, 2 000 000 rubles were allocated for the increase of the authorized capital.

Let's calculate the amount of income tax that Jupiter LLC will withhold from the income in the form of dividends of each of the participants, based on the rate of 9%.

Note that the indicated tax amounts "turned out" to be the maximum. If, for example, LLC "Jupiter" itself received dividends in 2011 in the amount of 2,000,000 rubles. and more, then the amount of income tax withholding from participants would be equal to 0 rubles.<8>.

We remind readers that the following rule applies to dividends accrued based on the results of organizations' activities for 2010 and subsequent periods. A 0% rate is applied to the tax base, determined by income received in the form of dividends, provided that on the day of the decision on the payment of dividends, the organization receiving the dividend for at least 365 calendar days continuously owns at least 50% contribution to the authorized capital of the organization paying dividends (subparagraph 1 of paragraph 3 of article 284 of the Tax Code of the Russian Federation).

Example 6... The authorized capital of LLC "Zemlya" is 1,000,000 rubles.

50% of the authorized capital belongs to Uran LLC, 50% - to Neptune LLC. The nominal values ​​of the shares of both participants are, respectively, RUB 500,000.

Both members have held shares for over 365 days.

Option 1. The participants decided to increase the authorized capital by 2,000,000 rubles. due to retained earnings in 2010

The size of the authorized capital after the increase will be 3,000,000 rubles. (1,000,000 + 2,000,000).

The new par value of the share of each of the participants is equal to 1,500,000 rubles. (3,000,000 rubles x 50%).

The amount of income tax that each of the participants will have to pay (based on the rate of 20%) will amount to 300,000 rubles. (1,500,000 rubles x 20%).

Option 2. The participants decided to pay dividends in the amount of 2,000,000 rubles. at the expense of the profit received from the results of the organization's activities for 2010, in proportion to the size of the participants' shares.

Then it was decided to increase the authorized capital by 2,000,000 rubles.

Due to the fact that the profit received for 2010 is distributed and the conditions set forth in paragraphs. 1 p. 3 art. 284 of the Tax Code of the Russian Federation (ownership of shares for at least 365 calendar days, size of shares not less than 50%), a tax rate on dividend income of 0% will be applied.

After two participants receive funds to the current account, they can send them to increase the authorized capital.

The goal has been achieved - and the authorized capital has been increased, and there is no need to pay income tax.

Now let's look at how to correctly arrange all these operations.

First, the decision of the LLC participants (adopted at the general meeting) on ​​the payment of dividends must be recorded.

Secondly, dividends must be transferred to the settlement accounts of the participants.

Thirdly, a decision is made to increase the authorized capital of the LLC at the expense of an additional contribution. In accordance with paragraph 1 of Art. 19 of the LLC Law, additional contributions can be made by the company's participants within two months from the date of the adoption of such a decision by the general meeting (unless a different period is established by the charter of the company or the decision of the general meeting).

Fourth, no later than one month after the end of the term for making additional contributions, the general meeting of the company's participants must decide on the approval of the results of making additional contributions by the participants and on making changes to the company's charter related to an increase in the size of the authorized capital.

Fifth, within a month from the date of the decision to amend the charter of the LLC, the following documents must be submitted to the registering authority (IFTS):

• an application for state registration of changes to the constituent documents of a legal entity (form P13001);
• documents confirming the making of deposits (copies of the bank statement on the settlement account of the LLC, payment order of the participant);
• the decision of the general meeting of participants of the LLC to increase its authorized capital by making additional contributions;
• the decision of the general meeting of LLC participants on the approval of the results of making additional contributions and on making changes to the charter related to an increase in the authorized capital;
• new edition of the charter;
• payment order for payment of state duty for registration of changes to the charter.

Organization - member of LLC on the date of registration<9>changes in the Unified State Register of Legal Entities will reflect the increase in the value of the share in this company in tax and accounting records.

<9>The date of registration of changes is indicated in the certificate of amendments to the Unified State Register of Legal Entities (Form R50003).

E. L. Yarmoshyna

Magazine editor

"Income tax:

accounting of income and expenses "

The participants (participant) of the company have the right to make a decision to increase the authorized capital at the expense of own property organizations. Such a decision can be made:

• general meeting of participants (if the company has more than one participant). In this case, the decision is made by a majority (at least 2/3) of votes (unless a different ratio is established by the charter of the company);

• the only founder (participant).

Make the decision to increase the authorized capital of the company accordingly:

• minutes of the general meeting of participants;

• by the decision of the sole founder (participant).

A decision to increase the charter capital of a company at the expense of its property can be made only on the basis of the data in the financial statements for the year preceding the year when such a decision was made.

This follows from paragraph 2 of Article 17, paragraph 1 of Article 18, subparagraph 2 of paragraph 2 of Article 33, paragraph 6 of Article 37 and Article 39 of the Law of February 8, 1998 No. 14-FZ.

Be careful: all LLCs, including those with a single participant, must be certified by a notary decision on increasing the authorized capital. These are the requirements of paragraph 3 of Article 17 of the Law of February 8, 1998 No. 14-FZ (letter of the Federal Tax Service of Russia dated February 24, 2016 No. GD-3-14 / [email protected]).

Sources of increasing the Criminal Code

Sources of increasing the authorized capital at the expense of property can be:

• additional capital of the company;

• retained earnings of previous years;

• funds created by the company in accordance with the charter (for example, a development fund).

With an increase in the authorized capital at the expense of the company's property, the nominal value of the shares of all its participants increases proportionally. At the same time, the sizes of the shares of participants themselves do not change. The increase in the authorized capital of the company also does not affect the actual value of the participants' shares.

The amount by which the authorized capital is increased should not exceed the difference between the value of net assets and the amount of the authorized capital and the organization's reserve fund.

Such rules are established in paragraph 2 of paragraph 2 of Article 14, paragraphs 2 and 3 of Article 18 of the Law of August 8, 1998 No. 14-FZ.

An example of how to determine the par value of the participants' shares and maximum amount, by which the authorized capital of the company can be increased at the expense of its own property

The authorized capital of the organization is 100,000 rubles, of which the first participant paid 80,000 rubles. (the size of its share - 80% of the authorized capital), and the second participant - 20,000 rubles. (the size of his share is 20% of the authorized capital). The organization does not have a reserve fund.

For the previous year, the value of the net assets of the organization amounted to 300,000 rubles.

The actual value of the shares of the participants in the company is:
- the first participant - 240,000 rubles. (300,000 × 80%);
- the second participant - 60,000 rubles. (300,000 × 20%).

In the current year, the organization made a decision to increase the authorized capital at the expense of retained earnings of previous years by 100,000 rubles. This amount does not exceed the difference between the value of net assets and the amount of the authorized capital of the company (100,000 rubles.< (300 000 руб. - 100 000 руб.)).

After the increase, the authorized capital of the organization is equal to 200,000 rubles. (100,000 rubles + 100,000 rubles).

- 160,000 rubles. (80,000 rubles + 100,000 rubles × 80%) - from the first participant;
- 40,000 rubles. (20,000 rubles + 100,000 rubles × 20%) - from the second participant.

- 80 percent (160,000 rubles: 200,000 rubles × 100%) - the share of the first participant;
- 20 percent (40,000 rubles: 200,000 rubles × 100%) - the share of the second participant.

The actual value of the shares of the participants in the company also did not change: 240,000 rubles. - the first and 60,000 rubles. - at the second.

Changes to the charter

With an increase in the authorized capital, changes must be made to the charter of the organization. The decision to amend the charter is made by the general meeting of participants (the only founder). The changes must be registered with the tax office.This is provided for by paragraph 4 of article 12, articles 13, 39 of the Law of February 8, 1998 No. 14-FZ, article 2 of the Law of August 8, 2001 No. 129-FZ, paragraph 2 of paragraph 1 of the Regulation approved by the decree of the Government of the Russian Federation of September 30 2004 No. 506.

Submit documents for state registration within a month from the date of the decision to increase the authorized capital.

An application for state registration of amendments to the charter must be signed by the person who performs the functions of the sole executive body of the company (for example, the general director). The statement confirms that the increase in the authorized capital was made in accordance with the requirements of the legislation.

For the state registration of changes in the charter, you need to pay a state duty (article 3 of the Law of August 8, 2001, No. 129-FZ, sub. 1, 3, paragraph 1, article 333.33 of the Tax Code of the Russian Federation). Its dimensions are given in table.

Accounting

In accounting, reflect the increase in the authorized capital on the date of state registration of the changes made to the charter of the organization. This is due to the fact that the amount of the authorized capital reflected in the accounting must correspond to its size recorded in the constituent documents of the organization (letter of the Ministry of Finance of Russia dated March 21, 2007 No. 07-05-12 / 03).

Depending on the source of the increase in the authorized capital, make the entry in the accounting:

Debit 83 Credit 80

- the increase in the authorized capital at the expense of the additional capital of the company is reflected;

Debit 84 Credit 80

- reflected an increase in the authorized capital at the expense of the company's retained earnings.

Include the state duty for registration of changes in the charter in the composition of other expenses (clause 11 of PBU 10/99). For the amount of the paid state duty, make the following entries in the account:

- the state duty was transferred to the budget;

- the cost of the state duty is attributed to other expenses.

An example of an increase in the authorized capital at the expense of the additional capital of the organization. The decision to increase the authorized capital was made by the general meeting of participants. The society has two members - Russian organizations

The size of the authorized capital of LLC "Trading Firm" Hermes "is 300,000 rubles, of which the first participant paid 180,000 rubles. (the size of its share - 60% of the authorized capital), and the second participant - 120,000 rubles. (the size of his share is 40% of the authorized capital).

On September 5, the minutes of the general meeting of participants approved the decision to increase the authorized capital at the expense of the additional capital of the organization, previously formed as a result of the revaluation of fixed assets, by 200,000 rubles. This amount does not exceed the difference between the value of net assets and the amount of the authorized capital of the company. The organization did not create a reserve fund.

After the increase, the authorized capital of the organization amounted to 500,000 rubles. (300,000 rubles + 200,000 rubles).

The nominal value of the shares of the company's participants increased proportionally and amounted to:
- 300,000 rubles. (180,000 rubles + 200,000 rubles × 60%) - from the first participant;
- 200,000 rubles. (120,000 rubles + 200,000 rubles × 40%) - from the second participant.

The size of the shares of the participants in the company remained the same:
- 60 percent (300,000 rubles: 500,000 rubles × 100%) - the share of the first participant;
- 40 percent (200,000 rubles: 500,000 rubles × 100%) - the share of the second participant.

Debit 68 subaccount "State duty" Credit 51

Debit 83 Credit 80
- 200,000 rubles. - the increase in the authorized capital at the expense of the additional capital of the organization is reflected;

Debit 91-2 Credit 68 subaccount "State duty"

From the amount of the difference between the initial and new par value of the shares of participants - individuals, which was formed as a result of an increase in the authorized capital, you need to withhold personal income tax (clause 19 of article 217, article 209, clause 1 of article 210, clause 1 of article 226 of the Tax Code of the Russian Federation).

An example of an increase in the authorized capital at the expense of the organization's retained earnings. The decision to increase the authorized capital was made by the sole founder - an individual

On September 5, the sole founder of OOO "Trading Firm" Hermes "" A.V. Lvov (he is director general organization) a decision was made to increase the authorized capital of the company at the expense of retained earnings of previous years by 100,000 rubles.

This amount does not exceed the difference between the value of net assets and the amount of the authorized capital of the company. The organization did not create a reserve fund.

On October 3, Hermes submitted documents for state registration of changes in the organization's charter. For filing an application for state registration, the organization paid a state fee in the amount of 800 rubles.

On October 8, an increase in the authorized capital of the organization was registered.

In October, Lvov received a salary. The employee does not have the right to deduction for personal income tax. Personal income tax from the amount of the increase in the par value of Lviv's share in the authorized capital of the company is withheld on a general basis.

The accountant of the organization made the following entries in the accounting.

Debit 68 subaccount "State duty" Credit 51
- 800 rubles. - the state duty is listed for registration of changes in the charter.

Debit 84 Credit 80
- 100,000 rubles. - reflected the increase in the authorized capital at the expense of the retained earnings of the company;

Debit 91-2 Credit 68 subaccount "State duty"
- 800 rubles. - attributed to other expenses the state duty for registration of changes in the charter.

The accountant withheld personal income tax from the amount of the increase in the par value of Lvov's share in the authorized capital of the company at the time of paying salaries for October:

Debit 70 Credit 68 subaccount "Personal income tax settlements"
- 13,000 rubles. (RUB 100,000 × 13%) - personal income tax withheld.

Income tax

With an increase in the authorized capital at the expense of the company's property, the tax base for corporate income tax does not increase. As a result of such an operation, the organization does not receive any economic benefit and, accordingly, taxable income (Article 41 of the Tax Code of the Russian Federation).

At the same time, when the par value of the shares increases, the organizations - members of the LLC have non-operating income (the amount of the increase). Such income must be subject to income tax at the rate of 20 percent (clause 1 of article 284 of the Tax Code of the Russian Federation). The Ministry of Finance of Russia explained that the privilege provided for by subparagraph 15 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation for participants in joint stock companies does not apply in this case (letter dated August 25, 2011 No. 03-03-06 / 1/518).

Situation: is it necessary to withhold income tax from the income of a participant - a foreign organization, which he received due to the fact that the authorized capital was increased at the expense of his own property?

Yes need.

With an increase in the authorized capital at the expense of the company's property, the nominal value of the shares of all its participants increases proportionally. In this case, the sizes of the shares themselves do not change.

When paying income to foreign organizations that do not have permanent missions in Russia, Russian organizations recognized by income tax agents ... In this case, income received from a Russian organization is subject to income tax.

This follows from paragraph 4 of Article 286, paragraph 1 of Article 309, paragraph 1 of Article 310 of the Tax Code of the Russian Federation.

When the authorized capital is increased at the expense of the company's property, no payments are made to the foreign member organization. At the same time, the nominal value of the participant's share in the authorized capital of the company increases. In this case, income is the amount of that increase.

The legislation does not contain provisions excluding such amounts from taxable income. Such a norm is provided only for joint stock companies (subparagraph 15 of clause 1 of article 251 of the Tax Code of the Russian Federation).

In this regard, with an increase in the authorized capital of an LLC, the participant receives non-operating income in the amount of an increase in the par value of his share in the authorized capital of the company. In this case, the organization must act as a tax agent and withhold income tax.

This conclusion follows from the letters of the Ministry of Finance of Russia dated May 30, 2013 No. 03-03-06 / 1/19742, dated November 9, 2011 No. 03-03-06 / 1/732, dated March 12, 2010 No. 03- 04-06 / 2-30.

Advice: there are arguments that allow not to withhold income tax from the income of a participant - a foreign organization that does not operate in Russia through a permanent establishment, received by him with an increase in the par value of his share in the authorized capital of the company. They are as follows.

Income is recognized as an economic benefit in cash or in kind (Article 41 of the Tax Code of the Russian Federation). With an increase in the authorized capital at the expense of the organization's property, the size of the participants' shares and the scope of their rights does not change (clause 3 of article 18 of the Law of February 8, 1998, No. 14-FZ). That is, there is no economic benefit and, accordingly, taxable income for a foreign member organization with such an increase.

Taxable income from a foreign participant may arise, for example, upon the further sale of its share in the authorized capital (Article 41, Subclause 5, Clause 1, Article 309 of the Tax Code of the Russian Federation).

Consequently, the amount of the difference between the new and the original par value of the shares of the foreign participant is not taken into account in the calculation of income tax. Earlier, the same point of view was expressed by representatives of the tax service (see, for example, letter from the Federal Tax Service of Russia for Moscow dated June 30, 2005, No. 20-12 / 46422). However, with the release of later letters of the financial department, the organization should not be guided by these explanations. When checking, the tax office may disagree with this approach. Then the organization will have to defend its position in court.

In arbitration practice there is an example of a court decision adopted in favor of an organization (see, for example, the resolution of the FAS of the Volga District of February 16, 2009 No. A65-11409 / 2006).

The amount of the state duty paid for amending the charter should be included in other expenses (subparagraph 1 of clause 1 of article 264 of the Tax Code of the Russian Federation, letter of the Federal Tax Service of Russia for Moscow dated June 26, 2006 No. 20-12 / 56686). When using the accrual method, take into account the amount of the state duty at the time of its accrual (subparagraph 1 of clause 7 of article 272 of the Tax Code of the Russian Federation). With the cash method - as it is paid to the budget (subparagraph 3, paragraph 3, article 273 of the Tax Code of the Russian Federation).

STS

For organizations applying the simplified system, an increase in the authorized capital at the expense of the company's property does not affect the tax base for the single tax, since in fact the organization does not receive any income. At the same time, with an increase in the par value of the shares, the organizations participating in the LLC generate non-operating income (the amount of the increase). The Ministry of Finance of Russia explained that the privilege provided for by subparagraph 15 of paragraph 1 of article 251 of the Tax Code of the Russian Federation for participants in joint-stock companies is not applied in this case (letter dated August 25, 2011 No. 03-03-06 / 1/518).

Organizations that pay a single tax on the difference between income and expenses can include in the composition of expenses the amount of state duty paid for registering changes in the charter (subparagraph 22, clause 1 of article 346.16 of the Tax Code of the Russian Federation). This must be done at the time the state duty is transferred to the budget (clause 2 of article 346.17 of the Tax Code of the Russian Federation).

UTII

The object of taxation of UTII is imputed income (clause 1 of article 346.29 of the Tax Code of the Russian Federation). Therefore, an increase in the authorized capital at the expense of the company's property does not affect the calculation of the tax base.

OSNO and UTII

Since the payment of the state duty for registering changes in the charter is simultaneously associated with the activities of the organization for common system taxation and activities subject to UTII, the amount of the fee must be distributed (clause 9 of article 274, clause 7 of article 346.26 of the Tax Code of the Russian Federation). For more on this, seeHow to take into account income tax expenses when combining OSNO with UTII .

Income tax expenses include only the amount of the state duty related to the organization's activities in the general taxation system (subparagraph 1 of clause 1 of article 264 of the Tax Code of the Russian Federation).

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 size 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 the present time 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. This 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 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 liability should include long-term loan and credit commitments and other long-term commitments, short-term loan and credit commitments, payables, debts to founders for payment of income, reserves for future expenses and other short-term liabilities.

Simply put, 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.

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 Russian Ministry of Finance, 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 taxpayer's income, 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 nominal 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 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 the 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. In the actual exercise of any of these rights, 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 inquiry, 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 members 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 members 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 paragraph 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 increase in the nominal size of the share of the founder.

Retained earnings can be defined as the final financial results, for a specific reporting period, minus taxes and fees payable, as well as any penalties due to profits. At the same time, retained earnings are often used to increase the authorized capital of Joint Stock Companies and Companies with Limited Liability, on the basis of the relevant decision of the shareholders or members of the Company.

The main goal of increasing the authorized capital of the Company at the expense of retained earnings is to increase its attractiveness for investors and creditors. In addition, sometimes, an increase in MC is caused by production necessity, for example, in cases when certain types the current legislation of the Russian Federation establishes the authorized capital of a certain size. In any case, the process of increasing the Criminal Code has its own characteristics.

Distribution of net profit of JSC

The current legislation on Joint Stock Companies obliges them to maintain accounting records, as well as, based on the results of the financial year, compile accounting statements and approve the distribution of profits and losses. Consequently, making a decision on the distribution of net profit based on the results of a financial year in a JSC falls within the exclusive competence General Meeting shareholders. In addition, the Federal Law “ About Joint Stock Companies»Establishes the main directions of distribution of net profit, which include:

• 1.

  Payment of dividends.
  In this case, the distribution of profits occurs only on the basis of a decision that the Company has the right to make based on the results of the first quarter, half a year, nine months, or based on the results of a financial year;

• 2.

  Creation of a reserve fund.
  In this case, the size of the fund must be established in the Charter of the company, however, its minimum size is 5% of the Authorized Capital;

• 3.

  Formation of a special fund for corporatization of the Company's employees.
  Similarly, as in the previous case, this provision should be spelled out in the Articles of Association of JSC. In this case, the funds of the corporatization fund are spent only on the acquisition of the Company's shares sold by its shareholders;

• 4.

  Increase the authorized capital.

Ways to increase the authorized capital of JSC

In accordance with the current legislation of the Russian Federation, the authorized capital of a JSC can be increased either by increasing the par value of shares; or by placing additional shares. In the first variant, the decision to increase the authorized capital of the Company must be made at the general meeting of shareholders.

In the second case, the decision can be made by both the general meeting and the board of directors, if such a right is granted to it by the Charter. An increase in the authorized capital of the Company by placing additional shares may be carried out at the expense of the company's property. In this case, additional shares can be distributed among all shareholders, where each shareholder is given shares of the same category or the same type that he owns and in proportion to their number.

The law does not allow an increase in the Authorized Capital at the expense of the property of the Company by placing additional shares, if as a result fractional shares are formed. In addition, if, for example, in Joint Stock Company if there are fractional shares, then their holders, upon distribution, will receive both a certain number of whole shares and fractional shares.

In turn, an increase in the Authorized Capital by increasing the par value of the Company's shares is carried out exclusively at the expense of its property in an amount that should not exceed the difference between the value of the company's net assets and the amount of the Authorized Capital and the reserve fund.

Any of the options for increasing the authorized capital of the company is associated with the need to amend the Charter and the passage of the state registration procedure in accordance with the procedure established by law, since such changes come into force for third parties only after passing this procedure.

Distribution of profits and losses of LLC

The current LLC legislation also obliges the Limited Liability Company to maintain accounting records, draw up accounting reports and approve the distribution of profits and losses. In addition, the Federal Law “ About LLC»Defines the purposes for which the net profit of the Company can be used, namely:

• 1.

  Distribution among the members of the Society. Decision-making on the distribution of profits between the members of the LLC falls within the competence of the General Meeting and can be made just every few months (quarterly) or every six months or a year;

• 2.

  Creation of a reserve fund and other funds. The procedure for creating a fund, as well as its size, must be determined in the Charter of the Company. At the same time, the creation of a reserve fund is a right, and not an obligation of a Limited Liability Company, in contrast to Joint Stock Companies;

• 3.

  Increase the authorized capital. LLC at the expense of non-distributed profit can increase its authorized capital.