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

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

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

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

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

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

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

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

1. Free transfer of property on the basis of subparagraph 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation. By itself, it comes in two forms:

transfer of property from "mother" or individual- a participant (shareholder) in favor of an organization whose authorized capital consists of more than 50% of the contribution of the transferring party;

"child gift". This is a transfer from the subsidiary to the parent company, which owns more than 50% in the authorized capital of the subsidiary.

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

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

Let's look at the mechanisms in detail.

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

Firstly, only property can be transferred. Money is property.

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

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

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

In other words, significant restrictions are imposed on the use of property: it cannot be sold, rented or otherwise disposed of. The legislator's logic is understandable - a kind of assistance from a member of his company is exempted from taxation, because he transferred the property for use by the company itself, and not for rent, for example.

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

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

Signed 3.7. paragraph 1 of Art. 251 of the Tax Code allows you to exempt from taxation the investments of participants both in the form of property and in the form of property or non-property rights. In this case, the size of the share of the participant does not matter.

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

Tax Code of the Russian Federation

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

Subparagraph 3.7 of paragraph 1 of Article 251 is new and appeared in the Tax Code only in 2018. He replaced the famous sub-clause 3.4, which received the popular name "contribution in order to increase net assets." Subclause 3.7 has a more concise content, referring to civil law - you can transfer everything that allows the Civil Code of the Russian Federation and special laws.

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

Property, property or non-property rights may be transferred only from the participant (shareholder) the respective business company. That is, the transfer in the opposite direction - from the "daughter" in favor of the parent company - is impossible.

Investments in property are possible only in relation to business companies or partnerships. For example, in production cooperative such a contribution tax consequences cannot be carried out.

3. "Child Gift"

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

Important!

Transferring a “child gift” to a participant - an individual without taxes will not work. Such payment will be equated to dividends.

At some point, the tax authorities had problems with the “daughter gift”: they stubbornly charged income tax when transferring property to parent organizations, citing the fact that gifts are prohibited between legal entities.

The Presidium of the Supreme Arbitration Court of the Russian Federation put an end to this matter, indicating in its Resolution:

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

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

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

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

the holding period of 365 days has not been met;

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

About debt forgiveness

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

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

1. When determining the tax base, the following incomes are not taken into account:

3.4) in the form of property, property rights or non-property rights in the amount of their monetary value, which are transferred to a business company or partnership in order to increase net assets ... This rule also applies to cases of an increase in the net assets of a business company or partnership with a simultaneous decrease or termination of an obligation business company or partnership to the relevant shareholders or participants ...

Tax Code of the Russian Federation as amended until December 31, 2017

Now there is no such clarification, although the possibility is still relevant.

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

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

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

Neither the Ministry of Finance of the Russian Federation, nor the courts have yet voiced their position.

We believe that the way out of the situation is as follows:

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

The decision is made but not implemented.

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

As a result, the obligation subsidiary before the participant is repaid without taxes.

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

A spoon of tar. VAT

But what happens if a participant, for example, a company on the DOS, transfers not money, but property as a contribution? Is this transaction subject to VAT? Yes and no. In the sense that the transfer of property itself is not subject to VAT, but the transferring party (if it is on the general taxation system) 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 ...

How to get a deposit back

A contribution to property is irrevocable: unlike a loan, it cannot be demanded back.

A kind of return on investment is possible only in the form of dividends. As well as for investments in the form of a contribution to the authorized capital.

However, unlike contributions to authorized capital, the amount of contributions made to property will not be used to offset the costs of acquiring a share (shares) in the event of the subsequent sale of a share (shares), exit or liquidation of the company.

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

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

"Underwater rocks"

Any tax-free transactions traditionally attract the attention of regulatory authorities. Investing in property is no exception.

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

For example, new member makes a generous contribution and immediately leaves the company. The tax authority will most likely say that the lender "investor" 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 transfer expensive property or money without tax.

taxCOACH® example

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 property! Retail companies establish (let's designate it as an investment center) and contribute as contributions to the property the agreed funds received from the sale of products. There is no need to pay income tax, and the investment center can freely dispose of the participants' money, for example, by investing it in new areas of activity.

Transaction form

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

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

The agreement will need to mention the following:

transferred object - property, property and non-property rights. Details must allow state registration transfer of rights, if necessary, and also put the asset on the balance sheet of the receiving party in a proper way;

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

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

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

Instead of the total, let us once again denote MAIN POINTS:

A contribution to property is an operational way of tax-free transfer of funds and other property of a subsidiary. There is no need to visit a notary and make changes to founding documents, which is mandatory when increasing the authorized capital.

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

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

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

"Financial newspaper", 2005, N 36

The term "contribution to the property of a company" was introduced by Federal Law No. 14-FZ of February 8, 1998 "On companies with limited liability"(hereinafter - Law N 14-FZ), Article 27 of which establishes the obligation of the participants in the company to make contributions to the property of the company if:

this is provided for by the charter of the company;

the corresponding decision of the general meeting of participants of the company was adopted.

Contributions to the property of the company are made by all participants in the company in proportion to their shares in the authorized (share) capital of the company, unless a different procedure for determining the amount of contributions to property is provided for by the charter of the company (clause 2, article 27 of Law N 14-FZ). By general rule Contributions to the company's property are made in money. It is possible to make a contribution with other property, if this is provided for by the charter of the company or by the decision of the general meeting of participants in the company (clause 3, article 27 of Law N 14-FZ). Contributions to the property of the company do not change the size and nominal value of the shares of the company's participants in the authorized (share) capital of the company (clause 4, article 27 of Law N 14-FZ).

For accounting purposes, the issue of classifying a contribution to property as property transferred on a reimbursable or non-reimbursable basis is brought to the fore. Law N 14-FZ does not contain norms that directly determine the nature of the relationship between a participant in a company and the company itself when making a contribution to property both on a reimbursable and non-reimbursable basis. In a number of publications on accounting and taxation issues, in separate letters of the Ministry of Taxation of Russia (for example, Letter of the Office of the Ministry of Taxation of Russia for Moscow dated 02.08.2002 N 11-14 / 35285), a contribution to the company's property made in accordance with Art. 27 of Law N 14-FZ, is considered as a donated property, since this contribution to the property does not change the size and nominal value of the shares of participants in the authorized capital of the company. For the purposes of tax accounting, the definition of property received free of charge is given in Art. 248 of the Tax Code of the Russian Federation. Property or property rights are considered to be received free of charge, if this is not associated with the recipient's obligation to transfer property (property rights) to the transferor (perform work for the transferor, provide services to the transferor). Indeed, Law N 14-FZ does not directly establish the occurrence of any obligations for a company when receiving a contribution to its property. As a result, the position of the tax authorities regarding the classification of a contribution to the property of a company as property received free of charge for the purposes of calculating income tax looks quite convincing.

Property relations within entrepreneurial activity regulated by civil law (Article 2 of the Civil Code of the Russian Federation). Article 423 of the Civil Code of the Russian Federation determines that:

a reimbursable contract is a contract under which a party must receive payment or other consideration for the performance of its obligations;

a contract is recognized as gratuitous, under which one party undertakes to provide something to the other party without receiving payment from it or other counter provision.

Thus, a contribution to the property of a company can be recognized as a gratuitous transfer of property from a member of the company to the benefit of the company in the absence of any counter provision from the side of the company to the participant for the fulfillment by him of his obligation to make a contribution to the property established by the charter of the company.

Consider economic essence contribution to the company's property.

Paragraph 2 of Art. 14 of Law N 14-FZ introduced the following concepts:

the nominal value of the share of a member of the company as part of the authorized capital of the company, proportional to the size of its share;

the actual value of the share of a member of the company as part of the value of the net assets of the company, proportional to the size of his share.

This rule makes it possible to legally establish general guarantees for the participants of the company in order to maintain the size of their shares: contributions to the authorized capital of the company increase the nominal value of the shares of its participants (clause 1, article 19 of Law N 14-FZ), while contributions to other property companies increase the actual value of the shares of participants without affecting the size and face value of their shares in the authorized capital (clause 4, article 27 of Law N 14-FZ). In this way, the existing balance of mutual property interests of the company's participants is maintained (see Definition of the Constitutional Court of the Russian Federation of 08.04.2004 N 166-O).

Article 26 of Law N 14-FZ establishes that a company participant has the right to withdraw from the company at any time, regardless of the consent of its other participants or the company. In the event that a participant in a company withdraws from the company, his share shall be transferred to the company from the moment of filing an application for withdrawal from the company. At the same time, the company is obliged to pay to the company member who submitted the application for withdrawal from the company, the actual value of his share, which includes, among other things, the monetary value of the assets transferred by the company member both in the form of a contribution to the authorized capital and in the form of a contribution to property. Thus, the legislation recognizes the right of a company member to reimburse not only his contribution to the company's charter capital, but also his contribution to the company's property as of the date of his withdrawal from the company. The right to receive the actual value of the share arises from the participant of the company also in the event of the exclusion of the participant from the company (clause 4, article 23 of Law N 14-FZ).

If the company, as a commercial organization, carries out ordinary activities aimed at making profit, the actual value of the shares of participants (the value of the company's net assets) increases by the amount of the company's retained earnings. The share of retained earnings belonging to the participant is income for the entire amount of his investments in the company, both in the form of a contribution to the authorized capital and in the form of a contribution to property. The company has the right to quarterly, every six months or once a year to make a decision on the distribution of its net profit between the participants in the company (clause 1, article 28 of Law N 14-FZ).

Thus, subject to the implementation by the company of the usual commercial activities the participants of the company are entitled not only to the return of their contributions to the authorized capital and property of the company, but also to income from these contributions in the form of an appropriate share of net profit. Recognition of a contribution to the company's property as property donated to the company in the situation under consideration clearly contradicts the norms of civil law. This conclusion is confirmed and arbitration practice(for example, Decree of the Federal Antimonopoly Service of the East Siberian District of January 18, 2002 N A33-10307 / 01-S2-F02-3445 / 01-S2).

The conclusion about the gratuitous nature of the contribution to property also seems unreasonable in the case when the company's activities are unprofitable and the participants' contributions to the company's property are aimed at covering current losses (for example, if the losses are due to marketing strategy a society that assumes unprofitability business transactions at the initial stage of activity, due to the promotion of a new product and the desire to capture a market segment).

In the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of August 24, 1999 N 1987/98, it was concluded that the gratuitous receipt of funds is a circumstance of economic relations and depends on the will of its participants. Evidence of the gratuitous receipt of property by the company should be the will of the owner (participant of the company), aimed at alienating this property in favor of the company without any property obligations on the part of the latter. In the case of a contribution to property, the will of the participants in the company is to increase the net assets of the company (the actual value of their share in the authorized capital of the company) and make a profit as the main goal of the commercial organization.

Based on the above, from the point of view of civil law and existing arbitration practice, the thesis on the recognition of a contribution to the property of a company, carried out in accordance with Art. 27 of Law N 14-FZ, as property donated, it seems controversial and unreasonable.

Let us consider the accounting procedure for making a contribution to the company's property when classifying it as a donated property (option A) and recognizing the paid nature of this transaction (option B).

Company accounting

Option A. Accounting entries are made taking into account the norms of clause 8 of PBU 9/99:

Debit 08, 10, Credit 98 - tangible assets made as a contribution to the property of the company are credited,

Debit 98, Credit 91 - non-operating income is reflected as depreciation is accrued and the received values ​​​​are released into production,

Debit 51, Credit 91 - funds received as a contribution to the property of the company.

It should be noted that the above methodology for accounting for participants' contributions to the company's property as part of the company's income contradicts the requirements of PBU 9/99 "Income of the organization". According to paragraph 2 of PBU 9/99, an organization's income is recognized as an increase in economic benefits as a result of the receipt of assets (cash, other property) and (or) the repayment of obligations, leading to an increase in the capital of this organization, with the exception of contributions from participants (property owners).

Option B. Accounting is carried out according to the rules established by paragraph 2 of PBU 9/99 and Letter of the Ministry of Finance of Russia dated 24.02.2000 N 04-02-05 / 5.

A contribution to property increases the value of the company's net assets without changing the size and nominal value of the participants' shares. In terms of economic content, it is similar to the amount of the excess of the actual value of the additional contribution of the participant over the amount of the increase in the nominal value of the share of the participant in the company with an increase in the authorized capital of the company. The amount of the specified excess should be reflected in a separate sub-account of account 83 "Additional capital". Guided by the requirement of the priority of content over form, it is advisable to reflect the contribution of participants in the property of the company in accounting as part of additional capital in the assessment established by the decision of the general meeting of participants. The use of account 75 "Settlements with the founders" in this case is mandatory, since it is intended to summarize information on all types of settlements with the founders (participants) of the organization.

Accounting records:

Debit 75, Credit 83 - reflects the amount of debt of participants on contributions to the property of the company based on the decision of the general meeting of participants in the company,

Debit 08, 10, 51, Credit 75 - received material assets and cash as a contribution to the property of the company.

An additional argument in favor of this approach can be the norm of clause 2 of PBU 9/99, which does not provide for the inclusion of contributions from participants (property owners) in the organization's income.

Accounting for a member of the company

Option A. Accounting entry:

Debit 91, Credit 01, 10, 51 - material assets and cash were transferred as a contribution to the property of the company.

Option B. Analysis of the norms of clause 2 of PBU 19/02 "Accounting for financial investments" allows us to conclude that it is necessary to accept a contribution to the company's property for accounting from a company member as financial investment, since all the necessary conditions are met:

the presence of properly executed documents confirming the existence of the organization's right to financial investments (charter of the company, decision of the general meeting of participants in the company);

transition to the organization of financial risks associated with financial investments (the risk of the company's entrepreneurial activity);

ability to bring organizations economic benefits(income) in the future (increase in the actual value of the share of the participant due to the retained earnings of the company).

In accordance with paragraph 3 of PBU 10/99 "Expenses of the organization", if the contribution to the company's property is accepted for accounting as a long-term financial investment, the contribution to the property cannot be recognized as an expense of the organization. Accounting entry, taking into account the norms of paragraph 2 of PBU 19/02:

Debit 58, Credit 01, 10, 51 - material assets and cash were transferred as a contribution to the property of the company.

Contribution of property to the authorized capital of LLC

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

The authorized capital is the minimum amount of property of the organization, which allows to ensure the interests of its creditors. Its size cannot be less than 10 thousand rubles. (Part 1, Article 14 of the Federal Law “On Companies ...” dated February 8, 1998 No. 14). At the same time, paragraph 1 of Art. 15 of the Federal Law No. 14 establishes the possibility of including movable or immovable property in the authorized capital of an enterprise.

According to Art. 130 of the Civil Code of the Russian Federation, real estate is a material object that is closely connected with the land and cannot be moved without losing its characteristics. This category includes subsoil plots and land plots, buildings, structures, construction in progress, etc. aircraft(for example, satellites and spaceships). All other assets are categorized as movable property.

Property valuation

The procedure for establishing the value of property contributed to the authorized capital is determined by paragraph 2 of Art. 15 of Federal Law No. 14. Valuation of assets in monetary terms is carried out during the general meeting of the company's participants, as a result of which a decision is made that is subject to documentary registration.

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

Sometimes in the course of the organization's activities there is a need to sell assets (for example, in the event of bankruptcy of an enterprise). If at the same time it turns out that the appraiser deliberately overestimated the value of the property at the stage of its introduction into the authorized capital, he, together with the founder of the company, is held jointly and severally liable in the amount by which the value was overestimated. At the same time, such liability can be imposed on them within 3 years from the moment the property was included in the authorized capital of the LLC.

Contribution of property to an LLC that does not change its authorized capital

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

Don't know your rights?

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

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

There are no restrictions regarding the value of the property transferred to the balance of an LLC (except for situations when it is enshrined in the charter). Established sub. 4 p. 1 art. 575 of the Civil Code of the Russian Federation, a ban on donating assets worth more than 3 thousand rubles. between commercial organizations in the situation under consideration is also not valid, since the transferred property has the status of a contribution, not a gift.

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

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

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

Documentation of the deposit

The contribution to the property of the enterprise is formalized by drawing up an act of acceptance and transfer. The list of mandatory details of this document is established by paragraph 2 of Art. 9 of the federal law "On Accounting" dated December 6, 2011 No. 402, according to which it is necessary to indicate in it:

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

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

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

There are 2 ways to avoid legal problems:

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

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

Any of the founders of a limited liability company, and since the summer of 2016, any shareholder of a JSC, can contribute additional funds to the property fund of the organization. Thus, you can finance your company for free. If you correctly execute this operation, you can carry out it in such a way that it will not grow, which means that it will not be necessary to redistribute the shares of participants or change the value of shares.

Let's get acquainted in more detail with the possibility of making such a contribution, its legal justification, the correct bookkeeping and tax implications.

What do the laws say?

Federal legislation allows making gratuitous contributions to property assets, while not affecting the amount of authorized capital. At first, such a right was valid only in relation to LLC: according to Art. 27 of the Federal Law of February 8, 1998 No. 14-FZ "On Limited Liability Companies", the right of investors to contribute funds to the fund of the company is not limited.

Since mid-summer 2016, this possibility has been legally extended to joint-stock companies: Federal Law No. 339-FZ dated July 03, 2016, which entered into force on July 15, made appropriate changes to the previously valid regulatory act.

Features of a gratuitous contribution from the founder

Why should participants contribute funds to the company without increasing their share and authorized capital? Such funding is designed to solve several problems at the same time:

• increase the net assets of the organization;
• add to working capital additional;
• acquire the necessary tangible or other property;
• improve the reporting indicators on the balance sheet.

Unless otherwise provided in the Articles of Association, capital shall be contributed in cash. The law does not prohibit prescribing in the statutory documents permission to make a contribution in any form, such as:

• movable property;
• things;
• real estate objects;
• share in the authorized capital of another organization;
• shares of any other company;
• securities;
• intangible assets (exclusive rights, licenses, patents, etc.).

IMPORTANT! The obligation of such contributions is regulated solely by the decision of the founders and is included in the statutory documents.

Options for the legal recognition of transferred property

The founder, especially if he is also a legal entity, transferring property to the foundation of the organization free of charge, must correctly reflect this operation in his accounting documents. It is impossible to recognize such an act as a donation procedure, since its size, as a rule, exceeds the limits allowed for donation between organizations. In order for the ban on donation between legal entities, justified in paragraph 1. Art. 575 Civil Code RF, has not been violated, the contribution of participants to the LLC should be considered as:

• investment deal;
• generally accepted implementation.

NOTE! In both cases, the contribution of property is considered a gratuitous transfer, therefore these funds are neither an expense of the transferring party, nor an income of the receiving party.

Transactions of the gratuitous transfer of property according to accounting

On the balance sheet, the procedure for the gratuitous return and acceptance of property assets is carried out in accordance with paragraph 11 of PBU 10/99 "Organization's expenses", Instructions for the application of the Chart of Accounts and Letter of the Ministry of Finance of Russia dated January 29, 2008 No. 07-05-06 / 18.

Sending side postings:

• if a contribution is made in the form of cash: debit 91-2 “Other expenses”, credit 50 or 51 “Long-term loans” or 51 “Settlement accounts”, the content of the transaction indicates that a cash deposit is reflected;
• if materials, goods, etc. are transferred to the property: debit 91-2 “Other expenses”, credit 10 “Fixed assets”, 40 “Authorized capital” or 41 “Share capital”, the content of the operation is a reflection of the transfer of non-monetary contributions;
• if any property is transferred: debit 01 “Fixed assets” (disposal), 02 “Depreciation of fixed assets” or 91-2 “Other expenses”, credit 01 “Fixed assets” (operation), 01 “Disposal of fixed assets”, a recorded transaction is a write-off of the initial cost of a fixed asset accrued on it, or a transfer of a non-monetary contribution.

Receiving Party Postings(depending on whether value added tax was charged):

• if the receipt of property was considered as a sale: debit 91-2 “Other expenses”, credit 68 “Calculations on taxes and fees”, the transaction for calculating VAT is reflected when making a contribution in non-monetary form;
• if the deposit was considered as an investment transaction: debit 91-2 “Other expenses”, credit 68 “Calculations on taxes and fees”, the recovery of VAT accepted for deduction is reflected;
• if the contribution was made in cash: debit 75 “Settlements with founders”, credit 83 “Additional capital”, an operation to reflect a cash contribution to the property of a subsidiary; debit 50 or 51, credit 75, receipt from the participant as a contribution to the property of funds;
• when making goods or materials: debit 75 “Settlements with the founders”, credit 83 “Additional capital”, making a non-monetary contribution; debit 10 “Fixed assets” or 41 “Share capital” - receipt of a non-monetary contribution from the participant;
• upon receipt of a fixed asset: debit 75 “Settlements with founders”, credit 83 “Additional capital”, making a non-monetary contribution; debit 08-4 “Investment in non-current assets, acquisition of fixed assets”, credit 75 “Settlements with founders” - receipt from the founder of a fixed asset as a property contribution.

NOTE! If the contribution is made not in cash, but in property form, then the party that received it will not be able to deduct this contribution.

Reflection of a gratuitous contribution in tax accounting

As a result of making gratuitous contributions by the founders, the tax burden is somewhat reduced if it is made for the sake of increasing net assets. In all other cases, the contribution affects the tax accounting of the receiving party (changes the composition of the shares of the founders).

Tax consequences for the giving party

income tax will not be taken into account, since from the point of view of taxation, the transferred property is not profit, and therefore, expenses and costs associated with its transfer are not recognized (clause 16, article 270 of the Tax Code of the Russian Federation).

can be considered in two ways:

• if funds are transferred, or the procedure is regarded as a sale, VAT must be charged, since the object of the transaction is available (letter of the Ministry of Finance of July 15, 2013 No. 03-07-14 / 27452);
• if the transfer is considered as an investment transaction, there is no need to charge VAT, since there is no object of taxation itself (clause 1, clause 2, article 146 of the Tax Code of the Russian Federation, clause 4, clause 3, article 39 of the Tax Code of the Russian Federation).

Tax implications for the host

income tax is also not accepted for accrual, since, according to the law, the organization did not receive any taxable income. The law does not put forward additional conditions that are obligatory for the receiving party to comply with (such as the amount of participation in the capital, the particulars of the disposal of the property received, etc.).

Nuances can arise only in connection with the depreciation of fixed assets received as such contributions. The received property should be valued at market value at the time of making the contribution, but not lower than the book value of the transferring party, and then depreciate (this is allowed by letters of the Ministry of Finance of Russia dated 28.04.09 No. 03-03-06/1/283 and dated 05.12.08 No. 03-03-06/1/ 674). Depreciation premium is prohibited.

If subsequently the property received needs to be written off or sold, their value will need to be included in tax expenses (clause 2 clause 1 article 268 of the Tax Code of the Russian Federation), since from the moment of transfer the contribution becomes the property of the organization that accepted it.

value added tax will not be accepted for deduction, since it cannot be restored by the party that transferred the contribution. There are no special provisions for VAT deduction in the case of gratuitous deposits in the tax legislation of the Russian Federation.

In the last issue, we talked in detail about contributions to the property of an LLC. Then we noted that since recently, not only LLC participants, but also JSC shareholders can make contributions to property. In this issue, we will tell you how shareholders can support the company by investing in property.

For more information about contributions to the property of an LLC, read the article by Alexander Rosikov “How to support an LLC with a contribution to property”

Why was change needed?

The opportunity to make a contribution to the property of a JSC without increasing its authorized capital officially appeared for shareholders on July 15, 2016. It was on this day that the the federal law dated July 3, 2016 No. 339-FZ “On Amendments to the Federal Law “On Joint Stock Companies””.

The authors of the law indicate that it expands the possibilities for JSCs to receive financial and material support from shareholders. This support is especially relevant in times of crisis. Contribution to property can be an effective transfer tool financial resources from interested shareholders to a joint-stock company to improve its economic condition (for example, to prevent bankruptcy) without increasing the authorized capital. Such contributions are usually made by shareholders - legal entities: parent or dominant companies.

The legislator draws attention to the fact that the amendments made to the Federal Law of December 26, 1995 No. 208-FZ “On Joint Stock Companies” (hereinafter referred to as the JSC Law) are fully consistent with law enforcement practice.

A bit of history

The possibility of making contributions to the property of a joint-stock company without increasing the authorized capital has been recognized by the courts for a long time. Four years ago, the Presidium of the Supreme Arbitration Court of the Russian Federation, in its decision of December 4, 2012 No. 8989/12 in case No. A28-5775 / 2011-223 / 12, indicated that economic relations between the main and subsidiary JSC are of a special nature. Therefore, the main company can make contributions to the property of the "daughter" not only during the establishment, but also at any other time. Moreover, the supreme arbitrators also allowed the possibility of a return transfer of property.

In fact, when making a contribution to property, the activities of interconnected companies are optimized. At the same time, the rights of creditors of these companies, in the opinion of the Presidium of the Supreme Arbitration Court of the Russian Federation, are not violated. Their interests are protected, in particular, by the norms of the bankruptcy law (transactions made on the eve of bankruptcy can be challenged) and the liability of persons entitled to give the company mandatory instructions.

New article

So, from July 15, 2016, the JSC Law was supplemented with a new article 32.2 "Contributions to the property of the company that do not increase the authorized capital of the company." In accordance with it, shareholders, in order to maintain the activities of the company, can at any time make gratuitous contributions to the property of the JSC, which do not increase the authorized capital and do not change the nominal value of the shares. Such contributions can be made both in money and other property. The main thing is that the property belongs to the types specified in Art. 66.1 of the Civil Code of the Russian Federation.

Document Fragment

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Paragraph 1 of Art. 66.1. Civil Code of the Russian Federation

The contribution of a participant in a business partnership or company to its property may be cash, things, shares (shares) in the authorized (share) capital of other business partnerships and companies, state and municipal bonds. Such a contribution may also be exclusive, other intellectual rights and rights under license agreements subject to monetary value, unless otherwise provided by law.

It is important to note that when making a contribution to property, the rules on interested party transactions (Chapter XI of the JSC Law) do not apply. This is stated in the new para. 9 p. 2 art. 81 of the JSC Law. However, you still have to receive the “go-ahead” for making a contribution to the property. But more on that below.

The focus is on the contract

The contributions must be transferred on the basis of an agreement concluded between the shareholder and the company. This agreement does not provide for any counter-provision by AO. But it cannot be considered a donation agreement. The Presidium of the Supreme Arbitration Court of the Russian Federation in the already mentioned decision of 04.12.2012 No. 8989/12 in case No. A28-5775 / 2011-223 / 12 explained this by the peculiarities of the relationship between “mother” and “daughter”, which from an economic point of view constitute a single economic entity.

Nevertheless, Rosreestr, until recently, could qualify a shareholder's contribution to the company's property as a donation and refuse to register the right (if it is subject to registration). The argument given by Rosreestr's specialists is extremely simple: donations are prohibited in relations between companies (subclause 4, clause 1, article 575 of the Civil Code of the Russian Federation). And then the shareholder had to prove his case in court (see, for example, the decision Arbitration Court of the Central District dated 02.03.2016 No. F10-116 / 2016 in case No. A14-7898 / 2015).

Now such disputes should not arise. In para. 3 p. 1 art. 32.2 of the JSC Law expressly states that the norms on donation (Chapter 32 of the Civil Code of the Russian Federation) do not apply to an agreement on making a contribution to the property of a JSC.

A sample contract is shown in the Example.

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As a general rule, an agreement on the basis of which a shareholder makes a contribution to the property of a JSC must be preliminarily approved by a decision of the board of directors (supervisory board). It turns out that in order to make a contribution, it is necessary, firstly, the desire of the shareholder himself, and secondly, the preliminary approval of the transaction. However, this statement is true only for public JSCs. But for non-public companies Art. 32.2 of the JSC Law provides special rules.

Note

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Those joint-stock companies are non-public, the shares (equity securities convertible into shares) of which cannot be offered for purchase to an unlimited circle of persons (clause 2, article 7 of the JSC Law). Previously, non-public JSCs were called CJSCs.

Deposits and property of non-public JSCs

Let's say right away that special rules for making contributions to the property of a non-public joint-stock company apply only if they are provided for by the company's charter. If the charter does not contain any special provisions on making contributions to property, then the shareholder simply concludes a pre-approved agreement on making a contribution with the company.

First, the charter of a non-public JSC may provide that, by decision of the general meeting, shareholders obliged to make a contribution to property, as well as the procedure, terms and grounds for making a contribution. The decision on "forced" contributions must be made unanimously (paragraph 2, clause 3, article 32.2 of the JSC Law).

If the shareholder does not comply with the decision of the general meeting, then another shareholder or a non-public joint-stock company itself may, through the court, oblige the “deviator” to make a contribution to the property (clause 4, article 32.2 of the JSC Law).

Secondly, the charter can fix that, by decision of the general meeting, it is allowed to impose the obligation to make a contribution only on the owners of a certain category of shares. Such a decision is considered to be adopted if two conditions are simultaneously met (paragraph 3, clause 3, article 32.2 of the JSC Law):

• the decision received at least three-quarters of the votes of the shareholders participating in the general meeting;
• the decision was unanimously supported by all shareholders, who will be required to make contributions.

Thirdly, the charter may provide for various restrictions related to making contributions to the property of a non-public company (clause 2, article 32.2 of the JSC Law). A classic example is limiting the maximum value of contributions made by all or certain shareholders.

In all three cases, contributions are made:

• in proportion to the shares of shareholders in the authorized capital of the company. However, a disproportionate distribution can be fixed in the charter (paragraph 4, clause 3, article 32.2 of the JSC Law);
• money. Making contributions in another form may be fixed in the charter or in the decision of the general meeting of shareholders (paragraph 5, clause 3, article 32.2 of the JSC Law).

Note

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The obligation to contribute to the property of a non-public joint-stock company is assigned to those persons who were shareholders on the date of the adoption of the relevant decision (paragraph 6, clause 3, article 32.2 of the JSC Law). Therefore, a person who subsequently ceased to be a shareholder is not released from the obligation to contribute to the property.

Taxation

AT explanatory note The authors of the amendments to the Law on Joint-Stock Companies propose that the taxation of contributions to property be guided by subpara. 11 p. 1 art. 251 of the Tax Code of the Russian Federation. It says that when determining the income tax base, income in the form of property (including money) received free of charge from:

• mothers or daughters. To determine “motherhood”, the criterion of owning more than half of the authorized capital is used;
• "physicist", owning more than 50% of the authorized capital.

The main thing is that the received property (money not counted) should not be transferred to third parties during the year.

However, this point of view is debatable. In our opinion, in this case, another rule should apply - sub. 3.4 p. 1 art. 251 of the Tax Code of the Russian Federation. In accordance with it, the tax base does not include income in the form of the value of property (property rights), which the shareholder transfers to the company to increase net assets. The validity of this approach is confirmed by the letters of the Ministry of Finance of Russia (No. 03-03-06/1/71620 of 08.12.2015, No. 03-03-06/2/53555 of 17.09.2015 and No. 03-03-06/1 of 20.04.2011 /257) and the Federal Tax Service of Russia (dated November 22, 2012 No. ED-4-3/19653). At the same time, the size of the shareholder's share and the period during which the company will own the received property do not matter.