R.A. Simonov

Deputy Director for Corporate Procedures

Is it possible to increase the net assets of a joint-stock company at the expense of the gratuitous assistance of its shareholders?

The problem of non-compliance of the size of net assets (hereinafter - NA) with the requirements of the legislation is relevant for a significant number of business entities. In accordance with paragraph 3 of Article 20 of the Federal Law "On companies with limited liability”(hereinafter - the Federal Law “On LLC”), clause 11 of article 35 of the Federal Law “On joint-stock companies ah” (hereinafter referred to as the Federal Law “On JSC”), the company may be forcibly liquidated on this basis. There are few options for bringing the size of the NA in line with the requirements of the law, and their list is especially limited for joint-stock companies (hereinafter referred to as JSC).

Firstly, an increase in the authorized capital of a JSC with a negative NA is recognized as unacceptable by both the FFMS of Russia, and judicial practice. Secondly, if the Federal Law on LLC contains provisions on the possibility of making contributions by participants to the company's property without increasing the authorized capital (Article 27), then the Federal Law on JSC does not contain similar provisions.

At the same time, when deciding on a way to increase the NA, such options as gratuitous assistance of participants (shareholders), debt forgiveness by participants (shareholders) are often not considered. Meanwhile, these methods deserve separate consideration, especially given the effective from 01.01.2011. amendments to the Tax Code of the Russian Federation (hereinafter - the Tax Code of the Russian Federation). In this article, we will consider the original situation, which remains relevant today, and the novelties introduced by these changes.

Free transfer of property and property rights from a shareholder

Such an option for increasing the net assets of a business entity is not contained in the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) and in the norms of legislation on business entities. The assumption of its admissibility and expediency of use follows from the analysis of the provisions of Article 251 of the Tax Code of the Russian Federation “Incomes not taken into account when determining the tax base”. To such income until 01.01.2011. in accordance with subparagraph 11, paragraph 1, article 251 of the Tax Code of the Russian Federation, income was not included:

“11) in the form of property received Russian organization free of charge:

• from the organization, if the authorized (share) capital (fund) of the receiving party consists of more than 50 percent of the contribution (share) of the transferring organization;
• from the organization, if the authorized (share) capital (fund) of the transferring party consists of more than 50 percent of the contribution (share) of the receiving organization;
• from an individual, if the authorized (share) capital (fund) of the receiving party consists of more than 50 percent of the contribution (share) of this individual.

At the same time, the received property is not recognized as income for tax purposes only if, within one year from the date of its receipt, the said property (with the exception of cash) is not transferred to third parties.

The application of this norm has caused and causes controversy regarding some points.

Sometimes the question arises about the fundamental admissibility of this method of increasing net assets for JSCs. It is doubtful that the Federal Law “On LLC” contains rules on making contributions to the property of a company, while the Federal Law “On JSC” does not provide for such a possibility. It should be noted that the norms of Article 27 of the Federal Law “On LLC” regulate the corporate action for the implementation of the rights and obligations of the company's participants, in particular, they assume that the decision of the supreme management body - the general meeting of participants on making contributions is mandatory for all participants. At the same time, the norms of the Tax Code of the Russian Federation regarding gratuitous assistance imply the individual nature of the decision-making and transaction on the part of the participant (shareholder), that is, they are not related to the implementation of corporate rights and obligations of participants (shareholders). Thus, the provision of gratuitous assistance through a unilateral transaction by a participant (shareholder) or the conclusion of an agreement between a participant (shareholder) and the company cannot be considered unacceptable only because such transactions are not directly regulated by the laws on LLC or JSC.

The admissibility of applying subparagraph 11, paragraph 1, article 251 of the Tax Code of the Russian Federation to relations between a JSC and a shareholder was also supported by the Department of Tax and Customs Tariff Policy of the Ministry of Finance of the Russian Federation: “Subparagraph 11 of paragraph 1 of Article 251 of the Code is applied regardless of the form in which this company was created (JSC, CJSC, LLC, etc.)”.

However, the main controversy is the question of how the specified norm of the Tax Code of the Russian Federation is combined with civil law, that is, what is the qualification of gratuitous assistance from the point of view of the Civil Code of the Russian Federation?

Free transfer of property can be qualified in accordance with Article 572 of the Civil Code of the Russian Federation as a donation, and in accordance with paragraph 4 of paragraph 1 of Article 575 of the Civil Code of the Russian Federation, donation between commercial organizations. Consequently, a legal conflict arises when the norms of tax legislation provide for the legal consequences of transactions that are void from the standpoint of civil law.

This collision causes serious discussions in the theory of law, first of all, on the question whether, in principle, a transaction for the gratuitous transfer of property from a participant can be recognized as a donation? This article does not aim to study the arguments in favor of a particular position. It is only worth noting that there is no unity on this issue, just as there is no unity in law enforcement practice: the courts make decisions both in favor of the admissibility of such transactions and recognize them as invalid. Let's give a couple of examples.

“The Tax Code of the Russian Federation allows a Russian organization to receive property free of charge from an organization if the authorized capital of the receiving party consists of more than 50% of the contribution (share) of the transferring party Article 575 of the Civil Code of the Russian Federation in this case is not applicable.”

“As the purpose of the payment, the transfer of a gratuitous contribution is indicated with reference to paragraph 11 of part 1 of article 251 of chapter 25 tax code Russian Federation Guided by paragraph 4 of part 1 of article 575, article 168 Civil Code Russian Federation, the court reasonably recognized the transaction as inconsistent with the requirements of the law.

Thus, in the case of a gratuitous transfer of property from a shareholder - a commercial organization, the main risk is the possibility of recognizing the transaction as invalid.

In addition to the risks of recognizing gratuitous aid as an illegal gift, one should take into account the restrictions imposed by subparagraph 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation and related to the taxation of transactions (exclusion from taxable income for the recipient):

With regard to cash, the tax authorities do not question their classification as property. This position is explained by the fact that, in accordance with paragraph 2 of Article 38 of the Tax Code of the Russian Federation, property in tax legislation means "types of objects of civil rights (with the exception of property rights) related to property in accordance with the Civil Code of the Russian Federation", and the Civil Code of the Russian Federation in Article 128 refers to objects of civil rights "things, including money and securities."

From this date, amendments to Article 251 of the Tax Code of the Russian Federation came into force, which again raise the question of the possibilities of using methods to increase the NA provided by the Tax Code of the Russian Federation. In particular, clause 3.4 was added to clause 1, which excludes from taxable income, in addition to those previously provided, also income “in the form of property, property rights or non-property rights in the amount of their monetary value, which are transferred to a business company or partnership in order to increase net assets, including through the formation of additional capital and (or) funds, by the relevant shareholders or participants. This rule also applies to cases of an increase in the net assets of a business company or partnership with a simultaneous decrease or termination of the obligations of a business company or partnership to the relevant shareholders or participants, if such an increase in net assets occurs in accordance with the provisions provided for by the legislation of the Russian Federation or the provisions constituent documents of a business company or partnership, or was the result of the will of a shareholder or participant in a business company, partnership, and in cases of recovery in the retained earnings of a business company or partnership unclaimed by shareholders or participants in a business company, partnership, dividends or part of the distributed profit of a business company or partnership.

Thus, tax legislation, regulating the tax consequences of the actions of participants in commercial organizations, allows that net assets, including JSCs, can be increased in the following ways:

• through the transfer of property and non-property rights by shareholders;
• through debt forgiveness by shareholders;
• at the expense of unclaimed dividends by shareholders.

Consequently, the tax legislation expands the list of cases when actually gratuitous assistance is recognized as legitimate. In addition, in accordance with the said norm, all restrictions imposed by paragraph 11 of paragraph 1 of Art. 251 of the Tax Code of the Russian Federation to exempt such income from income tax:

• it does not matter the percentage of participation in the authorized capital of the shareholder (participant) providing the company with gratuitous assistance;
• property, property and non-property rights can be transferred as gratuitous assistance;
• there are no restrictions on the disposal of property (when applying subparagraph 11, paragraph 1, article 251 of the Tax Code of the Russian Federation, if the received property was sold before the end of one year from the date of transfer, then the right to the benefit is lost).

At the same time, in the case of the application of clause 11, clause 1, article 251 of the Tax Code of the Russian Federation, assistance can be received by both a subsidiary and a shareholder, in the case of clause 3.4, clause 1, article 251 of the Tax Code of the Russian Federation, assistance can only be sent from the shareholder to the company , but not vice versa.

However, the main contradiction that exists in connection with the gratuitous transfer of funds remains - the issue of qualifying such a transaction as a gift, which results in a ban on such a transaction between commercial organizations. Despite the fact that the norm of tax legislation directly speaks about the purpose of such a transaction - an increase in net assets, in essence this branch of legislation establishes only the fiscal consequences of the actions of participants in legal relations, but not the types of obligations regulated by the Civil Code of the Russian Federation.

Is it possible to provide gratuitous assistance without violating the prohibition of clause 4 of article 575 of the Civil Code of the Russian Federation?

One of the options, at first glance, may be the provision of assistance by a shareholder - a non-resident of the Russian Federation with the subordination of the transaction to foreign law, which allows such legal relations. However, this possibility is also largely debatable. On the one hand, in accordance with Article 1210 of the Civil Code of the Russian Federation, the principle of autonomy of will is enshrined, allowing the parties to a transaction with a foreign element to independently choose the law applicable to their contract.

On the other hand, clause 1 of Article 1192 establishes the priority of a special category of imperative norms, the so-called super-imperative norms, which exclude the effect of the conflict of laws norm of the Civil Code of the Russian Federation, in particular, on the autonomy of the will of the parties, and the application of foreign law on its basis: “The rules of this section do not affect the operation of those imperative norms of the legislation of the Russian Federation, which, due to the indication in the imperative norms themselves or due to their special significance, including for ensuring the rights and legally protected interests of participants in civil circulation, regulate the relevant relations, regardless of the applicable law” .

That is, the choice by the parties to the transaction of foreign law eliminates the need to apply imperative rules, but it cannot eliminate the need to apply super-imperative rules. The legislation does not contain a specific list of such norms. In some cases, this is directly stated in the legislation, for example, by virtue of the provisions of Article 1213 of the Civil Code of the Russian Federation, transactions with real estate located on the territory of the Russian Federation are subject only to the legislation of the Russian Federation, regardless of the choice of the applicable law by the parties to the transaction. In most cases, however, the decision on which rules are super-mandatory and operate regardless of the choice of the applicable law by the parties is actually taken by the courts.

Will the prohibition of Russian legislation on donation transactions between commercial organizations operate regardless of the choice of foreign law by the parties to the agreement? available to the author judicial practice the issue has not been investigated, therefore, the risk of the transaction being recognized as invalid remains even if a foreign shareholder renders gratuitous assistance to a Russian joint-stock company.

An indisputable option, in which there are no restrictions on donation, is the transfer of funds from a shareholder - an individual:

• there is no ban on gratuitous transactions between individuals and legal entities;
• taking into account the provisions of subclause 3.4, clause 1, article 251 of the Tax Code of the Russian Federation, the percentage of ownership by a participant (shareholder) of shares (shares) does not matter to exclude the profit received from the taxable base.

However, the answer to the question of whether this option is possible depends on the structure of the company and the relationship between shareholders.

conclusions

1. Provision of gratuitous assistance by a shareholder is the fastest way to increase the net assets of a JSC - no need to corporate events, appeals to registration, regulatory authorities (FTS, FFMS, FAS, Rosreestr, if not real estate is transferred).

2. The free assistance of the founder - a legal entity bears the risk of declaring the transaction invalid due to the ban on donations between commercial organizations.

Wherein:

• the importance of providing assistance should be weighed against the consequences. The parties to an invalid transaction are obliged to return to each other everything received under the transaction. It is possible that in a holding structure, such likely future consequences for the parties to the transaction will be less negative compared to the risk of forced liquidation of a subsidiary at the current moment;
• the risk looks less significant in the case of transfer of gratuitous assistance from a participant (shareholder) - a non-resident of the Russian Federation with the subordination of the transaction to foreign law, which allows for the gratuitous nature of transactions between the shareholder and the company;
• there is no risk in case of receiving gratuitous assistance from a participant (shareholder) - an individual.

3. From the point of view of tax consequences, it would be more correct to use the provisions of paragraph 3.4 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation in comparison with the provisions of paragraph 11 of paragraph 1 of Article 251. This should be taken into account when drawing up contractual, administrative, payment documents, that is, the purpose of the transfer of property (property rights) should be recorded in these documents, so that later there will be no misunderstandings with the tax authorities when determining the norm to be applied.

Debt Forgiveness

The situation with debt forgiveness is in many ways similar to the situation with gratuitous assistance.

In accordance with Article 415 of the Civil Code of the Russian Federation, an obligation can be terminated by releasing the debtor from the debtor's obligations by the creditor. Subclause 3.4, Clause 1, Article 251 of the Tax Code of the Russian Federation directly states that such income is not taken into account when determining the tax base if they are made in order to increase the company's net assets by the founder. In this regard, the question again arises - is the forgiveness of debt a gift?

And again, as in the case of gratuitous assistance, there is no unity in understanding the institution of debt forgiveness in legal theory, as well as in the qualification of such transactions in judicial practice.

With the position of the ban, everything is clear, basically the courts qualify debt forgiveness as a kind of donation and recognize it as void, as contrary to paragraph 4 of article 575 of the Civil Code of the Russian Federation: “Article 415 of the Civil Code of the Russian Federation establishes that the obligation is terminated by the release by the creditor of the debtor from his obligations. From the meaning of this norm, debt forgiveness is assessed as one of the types of donation, and therefore must be subject to the restrictions and prohibitions established by Chapter 32 of the Civil Code of the Russian Federation.

Another position is to assess debt forgiveness as a unilateral transaction, which leads to the conclusion that the provisions on donation, which is a bilateral transaction, do not apply to it.

In addition, this point of view appeals to the argument that recognizing debt forgiveness as a kind of donation generally removes the question of the existence of debt forgiveness as an independent institution of civil law - what is the point in an independent form of termination of obligations established by Article 415 of the Civil Code of the Russian Federation? After all, it was enough to indicate that the release of the debtor from the performance of an obligation can be terminated by donation in the manner of Chapter 32 of the Civil Code.

Judicial practice sometimes also supports this approach: i> “The applicant's argument that debt forgiveness becomes one of the types of donation is untenable and, therefore, should be subject to the prohibitions established by Article 575 of the Civil Code of the Russian Federation. The prohibition provided for by Article 575 of the Civil Code of the Russian Federation does not apply to debt forgiveness, since in this case the application of Article 415 of the Civil Code of the Russian Federation would be excluded. Opponents of this approach, in turn, say that in this way, through the institution of debt forgiveness, one can easily circumvent the ban on gifts between commercial organizations.

Between these two extreme positions there is a third, more balanced one. This position is formulated in the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 21, 2005. No. 104. In particular, the situation was considered when debt forgiveness was understood as the lender's refusal to pay interest for the use of funds and penalties for late repayment of the loan amount when fulfilling the requirement to return the principal amount of the loan. The court agreed with the arguments that in this case there is no fact of donation, stating: “The relationship between the creditor and the debtor to forgive the debt can be qualified as a gift only if the court establishes the intention of the creditor to release the debtor from the obligation to pay the debt as a gift.” Various circumstances may testify to the absence of the creditor's intention to gift the debtor, primarily the receipt by the creditor of any other benefit in the relationship with the debtor as a result of forgiveness of the debt. In this case, the court held that “the purpose of the debt forgiveness transaction was to ensure the return of the amount of the debt in the unforgiven part without going to court, that is, the creditor had no intention to bestow the debtor.”

Is it possible to apply this position of the Supreme Arbitration Court of the Russian Federation to the situation under consideration?

It seems that the answer may be positive. Forgiveness of debt in order to increase net assets in the wording of paragraph 3.4 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation already speaks of a different intention than "to release the debtor from the obligation to pay the debt as a gift". Debt forgiveness, motivated by the intention of the creditor shareholder to increase the net assets of the debtor company, in its essence can be considered as obtaining a property benefit by the shareholder, that is, indicating the absence of a prohibited intention to bestow a JSC.

In addition, this argument can be supplemented by those that make it possible not to consider contributions to the property of an LLC as a donation. After all, the legitimacy of this action is due not only to the fact that it is allowed by the Federal Law "On LLC". In other cases, as was shown above, the presence of a norm of legislation does not yet mean the admissibility of its use. Ownership of shares in the authorized capital implies the existence of a property interest in relation to the company, that is, the receipt of part of the profit. Making contributions to the property of the company implies that the participants intend to improve its financial condition not for charitable purposes, but pursue the goals of subsequent profit. Thus, there is no sign that the creditor is aware of the gratuitousness of the transfer, which is mandatory for donation.

Similarly, the intention of a shareholder to increase the net assets of the company indicates his property interests - forced liquidation JSC on the basis of non-compliance with the requirements of the legislation on the amount of net assets may entail for the shareholder not only the loss of the source of dividend income, but also losses in the amount of expenses incurred for the acquisition of shares.

However, before the advent of judicial practice or clarifications of judicial and government agencies this is just an opinion on the matter. Accordingly, as in the case of gratuitous financial assistance, there is a risk of recognizing a debt forgiveness transaction as a donation.

In terms of tax implications, the following should be kept in mind.

With regard to the exemption from taxation of income received from debt forgiveness, provided for in clause 11, clause 1, article 251 of the Tax Code of the Russian Federation, the position of the Ministry of Finance was not always unambiguous. Previously, the absence of benefits was denied, for example: “In the situation under consideration, the subsidiary organization does not receive any property from the parent company as a result of the above operations. In this regard, she has no grounds for applying the benefits provided for by subparagraph 11 of paragraph 1 of Article 251 of the Code". Then the position changed, and it was indicated that income in the form of funds received under a loan agreement from an organization, if the obligation under the loan agreement was subsequently terminated by debt forgiveness (subject to the requirements of paragraph 11, paragraph 1, article 251 of the Tax Code of the Russian Federation in in relation to participation in the authorized capital), profits are not taken into account for tax purposes.

Considering that the letters of the Ministry of Finance are not of a regulatory nature, the later ones do not cancel the previously issued ones, it is impossible to predict the position of a particular tax authority in a particular situation. Accordingly, when carrying out such an operation, it is preferable to use the provisions new norm Subclause 3.4, Clause 1, Article 251 of the Tax Code of the Russian Federation, which leaves no doubt about the legality of the exemption of such income from taxation.

You should also take into account the following nuances:

conclusions

1. In the presence of accounts payable of the company for loan obligations to the shareholder, debt forgiveness along with the provision of gratuitous assistance from the participant (shareholder) is the most efficient way to increase net assets.

2. The exclusion from the varieties of donation of a debt forgiveness transaction by a shareholder using the provisions of subparagraph 3.4 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation as a tax justification looks more justified than gratuitous assistance. However, the risk of the transaction being invalidated due to the ban on gifts between commercial organizations remains, so the level of risk depending on the status of the creditor shareholder looks similar:

• the most risky is debt forgiveness by a legal entity - a resident of the Russian Federation;
• it is more controversial to recognize debt forgiveness as a donation by a legal entity - a non-resident of the Russian Federation with the subordination of the transaction to foreign law, which allows such transactions;

Letter from the Department of Tax and Customs Tariff Policy of the Ministry of Finance of the Russian Federation dated 30.03.2007. No. 03-03-06/1/201.

Letter from the Department of Tax and Customs Tariff Policy of the Ministry of Finance of the Russian Federation dated 14.10.2010. No. 03-03-06/1/646, Letter of the Ministry of Finance of the Russian Federation of January 14, 2011 No. 03-03-06/1/11.

Forgiveness of debt by the founder is not subject to income tax and only if it goes to increase net assets?

Under what conditions the forgiveness of the debt by the founder is not subject to income tax, the article will explain.

Question: Financial assistance to increase net assets in income is not taken into account. This rule also applies to those situations when, at the request of the participants, founders or shareholders, the company's debt to them is reduced or terminated. For example, if a company has not fulfilled its obligations to a participant under a loan agreement or payment for goods, it can forgive the debt and use it to increase net assets. Thus, he terminates the obligations of the company under the agreement (letters of the Ministry of Finance of Russia dated July 16, 2015 No. 03-03-06 / 2 / 40933 and the Federal Tax Service of Russia dated July 20, 2011 No. ED-4-3 / 11698). When determining income on a simplified tax system, the same receipts are not taken into account as when calculating income tax. This means that financial assistance received from a dependent founder or someone who owns more than 50 percent in the authorized capital of the recipient is also not taken into account when calculating the single tax. As, however, and assistance to increase net assets. "How to issue and take into account assistance from the founder (participant, shareholder): loans, loans, donations, deposits." Or from a founder owning more than 50% - anyway? what are the entries in each case? Dt76 Kt 91 - just forgiveness and Dt 76 Kt 83 - net assets?

Answer: 1. Yes, only if it goes to increase net assets, as in subparagraph 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation we are talking on the transfer of property, and with the forgiveness of a debt, there is no transfer of property.

Formally, of course, net assets increase even without any decisions and protocols, but the controlling departments require them to be registered.

2. Debt forgiveness posting Debit 76 Credit 91.

Many are mistaken that if we are talking about an increase in net assets, then account 83 should be applied. There is no such rule in the legislation.

83 account is used when receiving a contribution to the organization's property, which is usually accompanied by an increase in net assets and in relation to the contribution and reflect the posting Debit 08, 10, 50, 51 Credit 83.

In this case, there is no contribution to property, but there is debt forgiveness in order to increase net assets. They increase in the case of posting Debit 76 Credit 91, since accounts payable decrease, and other income will eventually be reflected in section III of the balance sheet.

Situation: whether it is necessary to take into account in income when calculating income tax the amount of forgiven debt under a contract for the purchase of goods (works, services, property rights). The debt is forgiven by the founder who has a contribution in the authorized capital of the organization of more than 50 percent

According to the Ministry of Finance of Russia, the amount of forgiven debt should increase taxable income. However, the Federal Tax Service of Russia expressed a different position.

The tax base for income tax is not increased only by the value of property received free of charge from the founder, whose share in the authorized capital of the organization exceeds 50 percent ( sub. 11 p. 1 art. 251 Tax Code of the Russian Federation). As a result of forgiveness of the debt, the transfer of property does not occur ( paragraph 2 of Art. 38 Tax Code of the Russian Federation). For tax purposes, this operation should be considered as a write-off of accounts payable, which is included in non-operating income on the basis of paragraph 18 article 250 of the Tax Code of the Russian Federation. There are no exceptions in the procedure for its taxation by the Tax Code of the Russian Federation.

This conclusion is confirmed by the clarifications of the regulatory agencies (see, for example, letters from the Ministry of Finance of Russia April 5, 2010 No. 03-03-06/1/232 , March 30, 2007 No. 03-03-06/1/201 , dated March 28, 2006 No. 03-03-04/1/295 , dated March 17, 2006 No. 03-03-04/1/257 , Federal Tax Service of Russia dated May 22, 2009 No. 3-2-13/76).

The chief accountant advises: there is a way not to take into account in income the amount of the debt forgiven by the founder under the contract for the purchase of goods (works, services, property rights).

12.77451 (6,9,24)

Situation: whether it is necessary to take into account in income when calculating income tax the amount of forgiven debt for the return of the loan amount. The debt is forgiven by the founder, who has a contribution in the authorized capital of the organization of more than 50 percent

According to the Ministry of Finance of Russia, the amount of the forgiven loan should not be taken into account in income. However, claims tax inspectors are not excluded.

The Ministry of Finance of Russia indicates that the amount of the loan received, forgiven by the founder, whose share in the authorized capital of the organization exceeds 50 percent, should not be included in income (see, for example, letters dated September 30, 2013 No. 03-03-06/1/40367 , dated October 14, 2010 No. 03-03-06/1/646). This is explained like this.

When the debt is forgiven on the main obligation of the loan, the organization actually receives property free of charge. Property received free of charge is included in non-operating income ( paragraph 8 of Art. 250 Tax Code of the Russian Federation). But for the case when the donor is the founder of the organization, an exception is provided. Property received free of charge is not included in the composition of income if, at the time when the notice (agreement) on debt forgiveness is signed, the share of the founder in the authorized capital of the organization exceeds 50 percent. This follows from subparagraph 11 paragraph 1 of Article 251 of the Tax Code of the Russian Federation.

The Ministry of Finance of Russia is convinced that the condition on the amount of the contribution (share) in the authorized capital must be met at the time of the conclusion of the loan agreement ( letter of the Ministry of Finance of Russia dated January 31, 2011 No. 03-03-06/1/45).

Forgiveness of the principal amount of the debt (excluding interest debt) under a loan agreement may be subject to the rule subparagraph 11 paragraph 1 of Article 251 of the Tax Code of the Russian Federation, therefore, the taxable base of the organization does not increase.

The tax department also agrees with the stated point of view (see, for example, the letters of the Federal Tax Service of Russia dated May 22, 2009 No. 3-2-13/76 , dated March 6, 2009 No. 3-2-06/32).

However, based on the position of the regulatory authorities on a similar issue of accounting for the amount of debt forgiven by the founder under a contract for the purchase of goods (works, services, property rights), it is possible that non-reflection of income when forgiving a debt under a loan agreement may cause claims from inspectors. The fact is that, if you follow the norms of civil law, debt forgiveness is a way to terminate the obligation under the initial reimbursable contract(Article and Civil Code of the Russian Federation). Therefore, it is impossible to consider the amount of forgiven debt, including under a loan agreement, as property received free of charge (). For tax purposes, this operation should be considered as a write-off of accounts payable, which is included in non-operating income on the basis of paragraph 18 article 250 of the Tax Code of the Russian Federation. There are no exceptions regarding the non-reflection of income received from the founder in relation to this paragraph. Therefore, when forgiving debt under a loan agreement (as well as under any other agreement), it is necessary to generate income.

In this situation, the organization has the right to independently decide which of these positions to follow. All ambiguities in the legislation are interpreted in favor of taxpayers ( paragraph 7 of Art. 3 Tax Code of the Russian Federation).

The chief accountant advises: there is a way not to take into account in income the amount of the debt forgiven by the founder under the loan agreement.

Situation: whether it is necessary to take into account when calculating the single tax income in the form of a loan amount received from the founder. The founder forgives the debt of the organization. The organization applies the simplification

The answer to this question depends on what part of the authorized capital of the organization is the contribution of this founder.

If the share contributed by the founder is 50 percent or less, include the amount of the written-off debt on the loan as income. Do the same if the property transferred to the organization as a result of debt forgiveness was transferred to third parties during the year. This follows from paragraph 1 articles 346.15 and paragraph 8 article 250 of the Tax Code of the Russian Federation. Recognize income at the date the debt forgiveness agreement is signed ( paragraph 1 of Art. 346.15, Tax Code of the Russian Federation).

An example of settlements with the founder of the organization for the provided loan. The share of the founder in the authorized capital of the organization is 45 percent. The organization applies the simplification

One of the founders of Alpha LLC is A.V. Lvov. The share contributed by Lvov to the authorized capital of the organization is 45 percent.

In January, Lvov provided Alfa with an interest-free loan in the amount of 100,000 rubles. for a period of three months. In March, due to severe financial position organization Lvov forgives Alfa the debt on the loan.

The accountant of the organization took into account the loan amount when calculating the single tax during the period of signing the debt forgiveness agreement (in the first quarter).

If the share of the founder is more than 50 percent, the issue of including the amount of written-off debt in income ambiguous. Since the dispute is based on the provisions subparagraph 11 paragraph 1 of Article 251 of the Tax Code of the Russian Federation, the conclusions contained in it can be guided not only by payers of income tax, but also by organizations that apply simplified taxation ( sub. 1 p. 1.1 art. 346.15 of the Tax Code of the Russian Federation).

Answered by Alexander Sorokin,

Deputy Head of the Operational Control Department of the Federal Tax Service of Russia

“CCP should be used only in cases where the seller provides the buyer, including its employees, with a deferral or installment plan for paying for their goods, works, services. It is these cases, according to the Federal Tax Service, that relate to the provision and repayment of a loan to pay for goods, work, and services. If an organization issues a cash loan, receives a return of such a loan, or itself receives and repays a loan, do not use the cash desk. When exactly you need to punch a check, look at

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Makarov Pavel

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Hello. I take it you have an LLC?

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Hello!

An exhaustive list of income not taken into account when determining the tax base for income tax is established in Art. 251 NK.

the federal law dated December 28, 2010 N 409-FZ “On Amendments to Certain Legislative Acts of the Russian Federation Regarding the Regulation of the Payment of Dividends (Profit Distribution)” expanded the list of income not taken into account when determining the tax base for corporate income tax.

As a result, on the basis of paragraphs. 3.4 p. 1 art. 251 of the Tax Code exempt income in the form of property, property rights or non-property rights in the amount of their monetary value, which are transferred to a business entity in order to increase net assets, including through the formation of additional capital by the relevant participants.

This rule also applies to cases of an increase in the net assets of a business company with the simultaneous termination of the obligations of the business company to the relevant participants, if such an increase in net assets was, in particular, the result of the will of the participant in the business company.

The company has not fulfilled the counter obligations stipulated by the loan agreement, and the participant (you) decides to increase the net assets (by forming additional capital) of the company at the expense of the previously transferred property and property rights, with the simultaneous termination of the company's obligations to its participants.

In this regard, for such a situation, it is possible to apply paragraphs. 3.4 p. 1 art. 251 of the Tax Code and not to take into account income in the form of funds transferred by its participants when determining the tax base for income tax.

Good afternoon, Katherine!

Yes, there is such a possibility:

Article 19 of the Federal Law “on limited liability companies” Increase in the authorized capital of a company at the expense of additional contributions from its participants and contributions from third parties accepted into the company

1. The general meeting of the company's participants, by a majority of at least two-thirds of the total number of votes of the company's participants, if the need for a larger number of votes to make such a decision is not provided for by the company's charter, may decide to increase the authorized capital of the company by making additional contributions by the company's participants. Such a decision should determine the total cost of additional contributions, as well as establish a common ratio for all participants in the company between the value of the additional contribution of a company participant and the amount by which the nominal value of his share is increased. This ratio is established based on the fact that the nominal value of the share of a company member may increase by an amount equal to or less than the value of his additional contribution.

Each member of the company has the right to make an additional contribution, not exceeding a part of the total value of additional contributions, proportional to the size of the share of this participant in the authorized capital of the company. Additional contributions may be made by the company's participants within two months from the date of adoption by the general meeting of the company's participants of the decision specified in the first paragraph of this paragraph, unless a different period is established by the company's charter or the decision of the general meeting of the company's participants.

Not later than one month from the date of the expiration of the period for making additional contributions, the general meeting of the company's participants must decide on approving the results of making additional contributions by the company's participants and on introducing amendments to the company's charter related to an increase in the size of the company's authorized capital. At the same time, the nominal value of the share of each member of the company who has made an additional contribution shall increase in accordance with the ratio specified in the first paragraph of this clause.

2. The general meeting of the company's participants may decide to increase its charter capital on the basis of an application by a company participant (applications of the company's participants) for making an additional contribution and (or), if this is not prohibited by the company's charter, an application by a third party (applications of third parties) for acceptance him to society and contributing. Such a decision is made by all members of the company unanimously.

The application of the participant of the company and the application of the third party must indicate the amount and composition of the contribution, the procedure and term for its payment, as well as the amount of the share that the participant of the company or a third party would like to have in the authorized capital of the company. The application may also specify other conditions for making contributions and joining the company.

Simultaneously with the decision to increase the authorized capital of the company, on the basis of the application of the participant of the company or the applications of the participants of the company for making an additional contribution by him or them, a decision must be made to amend the charter of the company in connection with an increase in the authorized capital of the company, as well as a decision to increase the nominal value of the share a member of the company or the shares of the company's members who submitted applications for making an additional contribution, and, if necessary, a decision to change the size of the shares of the company's members. Such decisions are taken by all members of the company unanimously. At the same time, the nominal value of the share of each member of the company who submitted an application for making an additional contribution is increased by an amount equal to or less than the value of his additional contribution.

2.1. An application for state registration of amendments to the company's charter provided for by this article must be signed by a person exercising the functions of the sole executive body of the company. The application confirms that the participants of the company have made additional contributions or contributions by third parties in full. Within three years from the moment of state registration of the relevant changes in the charter of the company, the participants of the company jointly and severally bear, in case of insufficiency of the property of the company, subsidiary liability for its obligations in the amount of the value of unpaid additional contributions.

The above application and other documents for state registration of changes provided for by this article in connection with an increase in the authorized capital of the company, an increase in the nominal value of the shares of the company's participants who made additional contributions, the admission of third parties to the company, the determination of the nominal value and size of their shares and, if necessary, with a change the size of the shares of the company's participants, as well as documents confirming that the participants in the company have made additional contributions in full or contributions by third parties, must be submitted to the body responsible for state registration legal entities, within a month from the date of the decision to approve the results of making additional contributions by the company's participants in accordance with paragraph 1 of this article or making additional contributions by the company's participants or third parties based on their applications.

For third parties, such changes become effective from the moment of their state registration.

3. If the increase in the authorized capital of the company did not take place, the company is obliged within a reasonable time to return to the participants in the company and third parties who made contributions in money, their contributions, and in case of non-return of contributions within the specified period, also pay interest in the manner and within the time limits provided for in Article 395 Civil Code of the Russian Federation.

The participants of the company and third parties who have made non-monetary contributions, the company is obliged to return their contributions within a reasonable time, and in case of non-return of the contributions within the specified period, also compensate for the lost profit due to the inability to use the property contributed as a contribution.

4. By decision of the general meeting of participants in the company, adopted by all participants in the company unanimously, the participants in the company on account of making additional contributions by them and (or) third parties on account of making contributions by them have the right to set off monetary claims against the company.

Good luck to you!

Sincerely,
Vasiliev Dmitry.

received
fee 10%

Hello Katerina, indeed the Ministry of Finance of the Russian Federation expressed its position regarding the taxation of an LLC participant in case of an increase in the size of the authorized capital and the nominal value of the shares of the participants in this company due to additional capital (without changing the size of the shares themselves) in a letter dated May 25, 2007 N 03-03-06 /1/324:

“The list of income not taken into account when determining the tax base for income tax, established by Art. 251 of the Tax Code of the Russian Federation, does not contain such a type of income as the income of a participant in an organization in the form of an increase in the nominal value of his share in the authorized capital of an organization.

Thus, when a limited liability company increases its charter capital without changing the shares of its participants, the taxpayer - a member of this company receives non-operating income, which is taken into account when taxing organizations' profits, in the amount of an increase in the nominal value of its share in the charter capital of a limited liability company.

Since you are the lender and founder, it is possible to change the subject of the loan agreement in such a way that the loan (the result of the loan) will be a contribution to the authorized capital.

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Issue dated March 18, 2016

Account correspondence schemes

A selection based on the materials of the information bank "Correspondence of accounts" of the ConsultantPlus system

Situation:

How to reflect in the accounting of a borrowing organization (LLC) the fact that a former participant - an individual (lender) forgives a debt under an interest-free loan agreement in order to increase the company's net assets?

The participant provided LLC with an interest-free loan in the amount of 200,000 rubles. Borrowed funds received on the current account and sent for payment running costs. Subsequently, a notice of debt forgiveness was received from the lender in order to increase the net assets of the LLC. At the time the LLC receives the notification, the lender is no longer a member of the LLC. The organization uses the accrual method for income tax purposes.

Account correspondence:

Civil law relations

An interest-free loan is provided to an organization on the basis of a loan agreement concluded in writing, with a direct indication in the agreement of the condition that the loan is interest-free. The loan agreement is considered concluded from the moment the lender transfers funds to the account of the borrowing organization (clause 1 of article 807, clauses 1, 3 of article 809 of the Civil Code of the Russian Federation).

An obligation under a contract may also be terminated by debt forgiveness. Debt forgiveness is the release by the creditor of the debtor from his obligations, if this does not violate the rights of other persons in relation to the property of the creditor (clause 1, article 407, clause 1, article 415 of the Civil Code of the Russian Federation).

The obligation is considered terminated from the moment the debtor receives the creditor's notification of debt forgiveness, if the debtor does not send objections to the creditor against debt forgiveness within a reasonable time (clause 2, article 415 of the Civil Code of the Russian Federation).

It should be noted that the forgiveness by the lender of the debt to repay the loan, executed by the appropriate notification of the debtor, cannot be considered as a donation, since (unlike a donation) it is an expression of the will of one person (the lender), that is, a unilateral transaction (paragraph 2 of article 154 , Article 155 of the Civil Code of the Russian Federation, Determination of the Supreme Arbitration Court of the Russian Federation dated February 8, 2010 N VAC-384/10 in case N A65-5037/2009-SG-3). Forgiveness of a debt can be recognized as a donation only if the court establishes the intention of the creditor to release the debtor from the obligation to pay the debt as a gift (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of July 15, 2010 N 2833/10 in case N A82-7247 / 2008-99, paragraph 3 Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of December 21, 2005 N 104 "Review of the practice of applying arbitration courts norms of the Civil Code of the Russian Federation on certain grounds for termination of obligations"). For more information on debt forgiveness, see the Deal Guide.

In the situation under consideration, the lender forgives the debt under the loan agreement with the condition that the amount of the forgiven debt is used to increase the net assets of the LLC.

Accounting

The receipt by an organization of borrowed funds under a loan agreement does not lead to an increase in the capital of the organization, that is, it is not recognized as income in relation to clause 2 of the Accounting Regulation "Income of the organization" PBU 9/99, approved by Order of the Ministry of Finance of Russia dated 06.05.1999 N 32n.

The amount of the loan received is reflected as accounts payable (clause 2 of the Accounting Regulation "Accounting for expenses on loans and credits" (PBU 15/2008), approved by Order of the Ministry of Finance of Russia dated 06.10.2008 N 107n).

When a debt is forgiven under a loan agreement, the amount of the terminated obligation increases the capital of the LLC and is recognized as other income at the time the notice of debt forgiveness is received. This follows from paragraphs 2, 7, 10.6, 16 PBU 9/99.

Accounting entries for the transactions in question are reflected in the accounting accounts in the manner established by the Instructions for the Application of the Chart of Accounts for Accounting for the Financial and Economic Activities of Organizations, approved by Order of the Ministry of Finance of Russia dated October 31, 2000 N 94n, and are given in the posting table.

Corporate income tax

For the purposes of taxation of profits, funds received under a loan agreement are not included in the organization's income (clause 10 clause 1 article 251 of the Tax Code of the Russian Federation).

In general, according to official clarifications, the amounts of forgiven debts on loans are considered as funds received and left free of charge at the disposal of the borrower, which are recognized as non-operating income on the basis of paragraph 2 of Art. 248, paragraph 8, part 2, art. 250 of the Tax Code of the Russian Federation. This point of view is confirmed, in particular, by the Letters of the Ministry of Finance of Russia of October 11, 2011 N 03-03-06/1/652, of January 31, 2011 N 03-03-06/1/45.

According to paragraphs. 3.4 p. 1 art. 251 of the Tax Code of the Russian Federation, the amounts of an increase in the net assets of a business entity with the simultaneous termination of the obligation of this company to the participants are not recognized as income, if such an increase in net assets was the result of the will of the participant in the company. Explanations on the application of this norm in terms of the principal amount of the debt (loan amount) are given in the Letters of the Ministry of Finance of Russia dated 06/25/2014 N 03-03-06/1/30267, the Federal Tax Service of Russia dated 05/02/2012 N ED-3-3/1581@.

Since in this case, at the time of the conclusion of the debt forgiveness agreement, the lender is no longer a member of the LLC, we believe that the norm of paragraphs. 3.4 p. 1 art. 251 of the Tax Code of the Russian Federation cannot be applied when forgiving a debt on a loan. A similar point of view on the application of the norm of paragraphs. 3.4 p. 1 art. 251 of the Tax Code of the Russian Federation when a debt is forgiven by a person who is no longer a member of the company using the simplified tax system, is expressed in the Letter of the Ministry of Finance of Russia dated February 24, 2015 N 03-11-06 / 2/9035.

Thus, the amount of the forgiven loan in this case is subject to inclusion in non-operating income.

L.V. Guzheleva
Consulting and analytical accounting center and taxation

Imagine the following situation: the real beneficiary of the business provided externally independent company a number of loans that are due to be repaid. However, the organization does not have the necessary funds. How can you act in such a situation?

One of the options is that the owner, having already officially entered the business, can forgive the company's debt in order to increase its net assets. This tool is attractive in that it exempts the organization from paying income tax.

Advantages and disadvantages of contribution to net assets

A contribution to increase net assets (NA) is one of the tools for tax-free transfer of property in a business, enshrined in paragraphs. 3.4 p. 1 art. 251 of the Tax Code of the Russian Federation. But like other tools, it has its advantages and disadvantages.

For ease of understanding, we list them:

• any member of the company can make a contribution to net assets: legal or individual regardless of the size of the share in the authorized capital (for comparison: only a participant with a share of more than 50% can make a contribution to property on the basis of subparagraph 11 of paragraph 1 of article 251 of the Tax Code);
• when making a contribution to the NA, there are no restrictions on the subsequent disposal of the property within a year from the date of transfer (the limit of one year is established by subparagraph 11, paragraph 1, article 251 of the Tax Code);
• property can be transferred, as well as property and non-property rights (including the right to claim a loan, etc.), having a monetary value;
• however, only a participant/shareholder can make a contribution in order to increase the NA (a “subsidiary gift” is not possible - the transfer of property from a subsidiary to the parent company);
• this tool is only applicable to business partnerships and companies (JSC, LLC, etc., but not applicable to production cooperatives, economic partnerships);
• with a contribution to the NA, there is no increase in the authorized capital of the company.

We will consider how this tool can work successfully using the example of the case of experts from the taxCOACH Center for the retail sector. Imagine a business that is conducted within a group of companies. Retail Stores are independent legal entities(at the same time, the area of ​​\u200b\u200beach store allows the use of UTII). However, what about the profit of each operating point?

You can use the already known contribution to the CA! Retail companies establish entity(we will designate it as an investment center) and make the agreed funds from the sale of products as contributions to the property in order to increase the NA. There is no need to pay income tax and the investment center can freely dispose of the participants' money, for example, by investing them in new areas of activity.

Thus, contributions to the net assets of the company are not taxed on the income of the receiving party (at the same time, debt in the form of the amount of interest on a loan written off by debt forgiveness, on the basis of paragraph 18 of Article 250 of the Tax Code of the Russian Federation, is subject to inclusion in non-operating income of the debtor organization) .

And if you transfer not money, but property?

But what happens if a participant, for example, a company on the DOS, transfers not money, but property as a contribution to the NA? Is this transaction subject to VAT? Yes and no. In the sense that the transmitting party (if it is on common system taxation) must recover VAT from the residual value of the property.

In this case, the restored value added tax can be included in the costs. But the receiving party will not be able to deduct VAT, since it did not pay money for this property, because a contribution to property is a kind of gratuitous transfer. So you can’t do without a fly in the ointment in a barrel of honey ...

Now let's see what is interesting in using this tool that occurs in litigation.

Arbitrage practice

Judicial practice in challenging the tax authorities the use of benefits by taxpayers of paragraphs. 3.4 p. 1 art. 251 of the Tax Code of the Russian Federation is not very extensive. The main thing that the tax authorities pay attention to is the reality of completed transactions. Naturally, in the actions of the parties there should be business purpose which is the improvement financial condition companies. An increase in the value of net assets, an increase in the company's profitability after the "injections" of the founder may just indicate this.

At the same time, the courts pay attention to the reality of the increase in the net assets of the taxpayer. For example, when sending case No. A22-4288/2015 for a new trial to the court of first instance, the court of cassation ordered the lower court to examine the accounting and tax documentation of the taxpayer, confirming (or refuting) the actual increase in its net assets, and reflecting this operation in the balance sheet of the company for the respective calendar year.

In another example, the tax authority challenged the reality of the founder's contribution to net assets, which is claimed to be the right of claim redeemed from the creditor against the taxpayer (No. А53-31131/2015). The courts supported the tax authority in that initially the services were provided fictitiously, in order to overestimate VAT deductions, and the accumulated accounts payable were assigned to the founder only for appearances. Thus, the taxpayer tried to avoid non-operating income in the amount of unclaimed (bad) accounts payable.

What about bills?

What if a participant deposits a promissory note from a third party into the CA? At the first stage, there is general rule- the operation of depositing a promissory note in the CA is not subject to income tax, everything is logical.

Whereas the further transfer of this bill of exchange by the company to a third party to pay off accounts payable is already subject to taxation (see cases No. A53-20551 / 2015, A41-39593 / 2015): the taxpayer has the right to attribute to expenses for the purpose of taxing profits only the costs of selling the bill.

More controversial points

Another controversial point in practice arose in connection with the transfer by the participant to the company on the basis of paragraphs. 3.4 p. 1 art. 251 of the Tax Code of the Russian Federation of the gratuitous right to use the property belonging to him. As the courts pointed out, supporting the position of the tax authorities, the property to which the right to use was transferred should be accounted for separately from the organization’s own property on an off-balance account (paragraph 2, clause 5, PBU 1/2008, Instructions for the application of the Chart of Accounts). Therefore, this property does not increase the net assets of the organization. In this regard, income from the gratuitous temporary use of the property of a participant (shareholder) should be accounted for as non-operating on the basis of clause 8 of Art. 250 of the Tax Code of the Russian Federation. (See case nos. A66-9803/2015; A50-24058/2015).

Finally, what happens if the founder decides to contribute to the NA of the company, but at the time of the actual transfer of funds, he managed to withdraw from the membership? Such a dispute was in judicial practice and ended in favor of the taxpayer! Note that the decision to contribute to property in order to increase the NA was made by the only participant before he left the company. Whereas a contribution of 10 million rubles (in two tranches) was transferred two months after the composition of the participants in the LLC changed.

As the court of first instance pointed out, the obligation to contribute to the property of the company, accepted by it sole member, should have been performed by this participant even if he alienated his share. The Court of Appeal, on the contrary, upheld the tax authorities, insisting that cash, received by the taxpayer from the former participant, are property received free of charge.

The court of cassation put an end to this dispute, according to which, the obligation of the participant to provide financial assistance to the company does not pass to the acquirer of the share, and the moment of actual transfer of the amount of money to the taxpayer does not change the qualification of this contribution as income of the taxpayer received in the form of property transferred by the participant of the economic companies in order to increase net assets (see case No. A40-21501/2014). Unfortunately more detailed information there are no details of the transaction on the alienation of the share by the participant in the case file (which would allow assessing whether the position of the cassation court in this case is an isolated case or this decision is reasonable).

The Ministry of Finance of the Russian Federation, meanwhile, takes the opposite position and regards the contribution of the former participant as non-operating income: if on the date of the conclusion of the agreement on debt forgiveness (consider, on the date of making the contribution, and not the decision to do so), the person was not a member of the company, then the benefit income tax does not apply.

Conclusion

Thus, in solutions general meetings participants and shareholders of organizations, however, do not forget to indicate that the transfer of property is carried out on the basis of paragraphs. 3.4 p. 1 art. 251 of the Tax Code of the Russian Federation precisely in order to increase net assets (so that the tax authorities would not have a reason to doubt the essence of the operation).

Remember: having forgiven the debt to the company, its new participant should not immediately leave the shareholders (participants). Otherwise, the tax authority will say that the lender did not intend to participate in the activities of the company and receive profit from this activity, and his only goal when entering the business was to forgive the debt and exclude taxation from the company.