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 changes 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. At the same time, the authorized capital does not increase, the nominal size of the shares of participants 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 a subsidiary to a parent company that owns more than 50% of authorized capital"daughters".

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 within one year from the date of receipt of the property (with the exception of Money) transfer it to third parties.

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 implications 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”.

Publication

Contributions to the authorized capital

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

Contribution to the authorized capital may be cash, securities, property, property and other rights having a monetary value.

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

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

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

Payment of shares/shares

When paying for shares (shares) in cash contentious issues does not occur. When making non-cash contributions to pay for shares (shares), the following points must be taken into account.

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

Property received in the form of a contribution to the authorized capital of the organization, for the purposes of taxation of profits, is accepted at cost (residual value). The cost (residual value) is determined according to the data tax accounting from the transferring party on the date of transfer of ownership of the said property (property rights), taking into account the additional costs that are incurred by the transferring party in such a contribution (contribution), provided that these costs are defined as a contribution (contribution) to the authorized (share) capital. If the receiving party cannot document the value of the contributed property (property rights) or any part thereof, then the value of this property (property rights) or part thereof shall be recognized as equal to zero.

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

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

An invoice for deduction is not required, and documents that formalize the transfer of property are registered in the purchase book (clause 8 of the Rules for maintaining registers of received and issued invoices, purchase books and sales books when calculating value added tax, hereinafter referred to as the Rules ).

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

In the event that the tax amount was not actually recovered by the transferring party, the company has no right to deduct. This position is confirmed judicial practice, for example, the decision of the Federal Antimonopoly Service of the Urals District dated January 27, 2009 No. Ф09-10568 / 08-С2. Necessary condition acceptance for deduction of amounts of VAT generated from the investment of property in the authorized capital, is the restoration of previously lawfully accepted for deduction of amounts of VAT by persons who have invested property in the authorized capital.

Contribution of property to the authorized capital by an individual

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

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

However, even if the amount of VAT is allocated, the company is not entitled to accept it for deduction. Yes, in a specific case. sole member Society - an individual transferred property as a contribution to the authorized capital. The courts rightly pointed out that this individual, not being a VAT payer, was not entitled to claim VAT (paid upon purchase of goods) for deduction. Accordingly, this individual did not need to restore the VAT amount in accounting, since this amount was not presented for reimbursement from the budget and could not be presented by an individual who does not have the status of an entrepreneur and is not a VAT payer (Decree of the Federal Antimonopoly Service of the North-Western District of 29.08. 2008 No. A42-5628/2007).

The unequivocal disadvantage of this method of financing is that if, at the end of the second and each subsequent financial year, the value of the company's net assets turns out to be less than its authorized capital, the company is obliged to announce a decrease in its authorized capital to an amount not exceeding the value of its net assets, and register such a decrease according to established order. If, after this period, the net asset value is less than minimum size authorized capital, then the company is subject to liquidation (clause 3, article 20 of the Federal Law of February 8, 1998 No. 14-FZ “On Companies with limited liability", hereinafter - Federal Law No. 14-FZ; p. 4, 5 art. 35 of the Federal Law of December 26, 1995 No. 208-FZ "On Joint-Stock Companies", hereinafter - Federal Law No. 208-FZ).

Judicial practice here follows the path of providing society with the opportunity to improve its financial position. For example, the court determined that the interrelated provisions of paragraph 4 of Art. 99 of the Civil Code of the Russian Federation and part 3 of Art. 20 of Federal Law No. 14-FZ do not imply that the company is subject to immediate liquidation as soon as net assets begin to decrease, but allow the founders to take the necessary measures to improve it financial condition. Taking into account the evidence presented that the financial condition of the company is stable, the requirements of the tax authority to liquidate the company are unfounded (Decree of the Ural District dated March 26, 2009 No. Ф09-1563/09-С4).

In another case, the court refused to satisfy the application for liquidation of the company. The court pointed out that a separate violation of regulatory legal acts, committed both during the creation of a legal entity and in the course of its activities, cannot in itself be the only reason for terminating the activities of a legal entity through its liquidation, provided that this violation is of a remedied nature. . Consequently, an LLC is not subject to immediate liquidation as soon as net assets begin to decrease, since the founders can take the necessary measures to improve its financial condition (decree of the Federal Antimonopoly Service of the Central District dated February 26, 2009 in case No. A68-2742 / 08-28 / GP-9- 08).

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

The claim for the liquidation of the legal entity was legitimately satisfied, since at the time of the tax audit, the value of the net assets of the latter was less than the minimum amount of the authorized capital (Decree of the Federal Antimonopoly Service of the Volga-Vyatka District dated January 23, 2009 in case No. A43-6947 / 2008-19-203) .

Payment of shares (shares) above their nominal value

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

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

Judicial practice in this area is on the side of the taxpayer. An example is the following case. The Inspectorate considered that the taxpayer unlawfully did not include income in the form of the difference between the market and nominal value of the contribution to the authorized capital in the composition of income subject to income tax. As the court pointed out, recognizing the position of the Inspectorate as unlawful, the fact that the market value of the contribution to the authorized capital of the company, made by its new participant, with a nominal value of 3800 rubles. (the share is 19% of the authorized capital of the company) is 103,800,000 rubles, does not change the essence of cash as a contribution to the authorized capital of the company, by virtue of subpara. 3 p. 1 art. 251 of the Tax Code of the Russian Federation not subject to income tax (Resolution of the Federal Antimonopoly Service of the Central District of October 23, 2008 No. A62-1202 / 2008).

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

VAT evasion schemes using contributions to the authorized capital

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

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

When using a contribution to the authorized capital as a way to avoid paying VAT, the transfer of property to the authorized capital of a company does not take place for the purpose of acquiring shares (shares) to receive investment income, but is actually aimed at alienating (selling) the property of the company in order to avoid paying VAT when it is sold .

The transferring party receives in exchange for shares in the receiving party and sells them, thereby receiving equivalent compensation for the property contributed to the authorized capital and without paying VAT.

Such a scheme was considered by the arbitration court, the conclusions of which are contained in the resolution of the Federal Antimonopoly Service of the North Caucasus District dated November 20, 2006 No. F08-5894 / 2006-2447A. The judicial body came to the conclusion that the transfer of funds to the authorized capital was not of an investment nature and therefore cannot be exempted from VAT.

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

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

In this case, the actual goods often remain in the warehouse of the parent organization. In this regard, the resolution of the Federal Antimonopoly Service of the North Caucasus District dated April 5, 2006 No. F08-1281 / 2006-548A is noteworthy. The court came to the conclusion that the operation to increase the authorized capital in cash and the next day payment at the expense of these funds for the work performed in favor of the organization financing the authorized capital constituted the payment of invoices of one organization with invoices of the same organization. For this reason, in this situation, there is no statutory condition for VAT refunds - payment at the expense of own funds organizations.

Contributions to the company's property as a way of financing

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

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

there is no need to amend the constituent documents and carry out any registration procedures with the Federal Tax Service and the Federal Financial Markets Service of Russia 1 ;

it is not required to involve an independent appraiser when making contributions to the property of the company;

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

there is no tax base for VAT;

The legislation does not contain restrictions on the amount and frequency of contributions.

Legal regulation

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

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

It is necessary to consider this legal institution from the civil law and tax points of view. From point of view corporate law a contribution to the company's property is not a gratuitous transfer of funds, since it increases the actual value of the share that each participant has the right to demand upon withdrawal from the LLC participants. This conclusion is confirmed by the materials of judicial practice (decisions of the Federal Antimonopoly Service of the Moscow District dated January 23, 2006 No. KA-A40 / 13961-05-P, dated March 9, 2007 No. KA-A40 / 875-07, Federal Antimonopoly Service of the West Siberian District dated May 04, 2006 No. Ф04 -5209/2005(22104-A27-3)).

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

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

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

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

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

At the same time, the received property is not recognized as income for taxation 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.

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

Contribution to JSC property

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

The legislation on joint-stock companies does not provide for the possibility of making contributions to the company's property. But there is no prohibition on the implementation of this procedure. Subparagraph 11, Part 1, Art. 251 of the Tax Code of the Russian Federation does not contain a reference to the type of business entity that can take advantage of this benefit. There is also a letter from the Ministry of Finance of Russia dated November 9, 2006 No. 03-03-04 / 1/736, in which the financial department notes that sub. 11 p. 1 art. 251 of the Tax Code of the Russian Federation applies regardless of the form in which the organization was created (JSC, CJSC, LLC, etc.).

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

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

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

But, despite this, the risk of recognizing this transaction as invalid by the court cannot be ruled out (Decree of the Federal Antimonopoly Service of the Moscow District dated 05.12.2005, 18.11.2005 No. КА-А40/11321-05).

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

Decree of the Federal Antimonopoly Service of the Moscow District dated February 20, 2008 No. KA-A41 / 420-08 contains confirmation that property received free of charge can also be excluded from the tax base from a joint-stock company. In this resolution, the application to invalidate the decision of the tax authority to collect penalties on income tax was rightfully satisfied, since the applicant rightfully did not take into account the property received by him as Russian organization free of charge from the organization, since the authorized capital of the transferring party consists of more than 50% of the contribution of the receiving party.

The benefit granted under s. 1 p. 1 art. 251 of the Tax Code of the Russian Federation, according to which the received property is not recognized as income for tax purposes, is valid on the condition that within one year from the date of its receipt, the said property (with the exception of cash) is not transferred to third parties. As can be seen from the above norm, problems arise if property was transferred in non-monetary form. What problem situations can arise here?

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

If the received property is transferred for rent, trust management, use, pledge, as well as when transferring property on any other basis that does not entail the transfer of ownership, the taxpayer is not entitled to apply the benefits provided for in subpara. 11 p. 1 art. 251 of the Tax Code of the Russian Federation. Confirmation of this is contained in the letter of the Ministry of Finance of Russia dated February 9, 2006 No. 03-03-04 / 1/100.

Also have arbitrage practice confirming this position, for example, the decision of the Federal Antimonopoly Service of the Moscow District dated September 1, 2008 No. KA-A40 / 8012-08. According to the court, a taxpayer transferring property for gratuitous use cannot apply the benefit under sub. 11 p. 1 art. 251 of the Tax Code of the Russian Federation.

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

Non-payment of a share in the authorized capital of an LLC does not affect the application of the tax benefit subpara. 11 p. 1 art. 251 of the Tax Code of the Russian Federation. This is confirmed by multiple case law. So, court of Arbitration noted that "Art. 251 signatures 11, clause 1 of the Tax Code of the Russian Federation connects the right to a benefit not with the amount of the actually contributed authorized capital, but with the share of the receiving party in the authorized capital of the transferring party, which must be at least 50% and does not require full payment of the authorized capital at the time the benefits are presented "(decree Federal Antimonopoly Service of the Moscow District dated June 15, 2006 No. КА-А41/5286-06).

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

The person who contributed to the property of the company withdrew from the membership

Withdrawal of the transferor from the participants during the year does not affect the application of the tax benefit subpara. 11 p. 1 art. 251 of the Tax Code of the Russian Federation. This is confirmed by the conclusion contained in the resolution of the Federal Antimonopoly Service of the Far Eastern District dated December 30, 2005 No. Ф03-А73 / 05-2 / 4367. The court concluded that the withdrawal of an individual before the end of the year from the founders of the company does not change legal status the specified funds as received free of charge and not subject to accounting as income when determining the taxable base for income tax.

VAT when making a contribution to the company's property

An analysis of the legislation on the subject of whether operations on contributions to the company's property in cash are subject to VAT allows us to make a reasonable conclusion that there is no obligation to pay the said tax.

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

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

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

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

Making a contribution to the property of a company affects the increase in the size of its net assets and, consequently, the amount of net profit distributed among the participants, so we can conclude that this contribution is of an investment nature. There is a positive judicial practice confirming this position (for example, the decision of the Federal Antimonopoly Service of the Central District of February 20, 2007 in case No. A-62-3799 / 2006).

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

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

conclusions

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

1 federal Service on the financial markets of the Russian Federation.

1. The participants of the company are obliged, if it is provided for by the charter of the company, by decision of the general meeting of the participants of the company, to make contributions to the property of the company. Such an obligation of the company's participants may be provided for by the company's charter when the company is founded or by introducing amendments to the company's charter by decision of the general meeting of the company's participants, adopted by all the company's participants unanimously.

The decision of the general meeting of participants in the company on making contributions to the property of the company may be taken by a majority of at least two-thirds of the votes of the total number of votes of the participants in the company, if the need for a larger number of votes for making such a decision is not provided for by the charter of the company.

2. Contributions to the property of the company are made by all participants in the company in proportion to their shares in the charter capital of the company, unless another procedure for determining the amount of contributions to the property of the company is provided by the charter of the company.

The company's charter may provide for the maximum value of contributions to the company's property made by all or certain participants in the company, and may also provide for other restrictions related to making contributions to the company's property. Restrictions related to making contributions to the property of the company established for a certain member of the company, in the event of the alienation of his share or part of the share, do not apply to the acquirer of the share or part of the share.

(see text in previous edition)

The provisions establishing the procedure for determining the amount of contributions to the company's property disproportionately to the size of the shares of the company's participants, as well as the provisions establishing restrictions related to making contributions to the company's property, may be provided for by the company's charter upon its establishment or included in the company's charter by decision of the general meeting of the company's participants adopted by all members of the company unanimously.

Change and exclusion of the provisions of the company's charter that establish the procedure for determining the amount of contributions to the company's property disproportionately to the size of the shares of the company's participants, as well as restrictions related to making contributions to the company's property, established for all participants in the company, are carried out by decision of the general meeting of the company's participants, adopted by all participants society unanimously. Amendment and exclusion of the provisions of the company's charter that establish the specified restrictions for a certain member of the company are carried out by decision of the general meeting of members of the company, adopted by a majority of at least two-thirds of the total number of votes of the members of the company, provided that the member of the company for whom such restrictions are established, voted for the adoption of such a decision or gave written consent.

Sometimes it happens that the owners of a limited liability company (LLC) or shareholders joint-stock companies(JSC) want to supplement the authorized capital of the company. There is a possibility for this. Moreover, if the procedure is carried out correctly, then the introduction of property into the authorized capital of the LLC will not entail an increase in the authorized capital of the company. And this, in turn, will help to avoid additional formalities in the form of a redistribution of the shares of each of the participants or a change in the value of the JSC shares.

Legislative basis

Based on the information contained in Article 27 No. 14-FZ, it follows that contributions on a gratuitous basis, to the property of an LLC, do not affect the total mass of the organization's authorized capital. For some time now, this law has been amended accordingly and it began to apply also to joint-stock companies.

Nuances of making additional deposits

First of all, let's figure out why the participants make a contribution to the property of an LLC without increasing the authorized capital, if this does not increase their share and the authorized capital as a whole. Such an event can help in solving several issues.

1. An increase in the firm's net assets.
2. Increase working capital society.
3. Assist in the acquisition of company property.
4. Improvement of balance indicators.

When drawing up the charter of an LLC or JSC, it is worth considering the possibility of contributing funds both in monetary terms and in material form. In the form of a material contribution can be:

• real estate;
• auto and motorcycle equipment;
• household appliances and computers;
• share in the authorized capital of another company;
• shares and securities.

Legitimacy of the deposit

It’s so simple, you can’t take and donate anything to the company, especially if the one who contributes additional capital is not an individual. This is due to the fact that there is a certain limit on "gifts" between organizations, which is set by Article 575 Civil Code. So how to contribute property to the authorized capital of an LLC so as not to violate the law? To do this, the contribution must be made as follows:

• investment deal;
• generally accepted implementation.

With any of the above methods of registration, the transaction will be free of charge and will not affect the authorized capital of the company.

Features of accounting for the contributed property

In terms of accounting, it is necessary to carry out the return and acceptance of assets in the form of property in accordance with various letters and instructions from the Ministry of Finance of Russia. In accordance with these documents, the one who gives away property must take into account the fact of return in a special way, and the receiving party must reflect in its accounting documents the fact of accepting property or funds on the balance sheet.

It should be noted that if property is contributed, and not cash, then the VAT deduction is not allowed.

Tax reflection of the fact of acceptance

In the tax return, the fact of receiving and giving away property or money, of course, will be reflected differently. Let's take a closer look at how the transfer affects the taxes of both parties.

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Giving side

Property or funds that are transferred will not be taken into account when calculating income tax. This is due to the fact that such an operation does not entail making a profit.

Value Added Tax (VAT) may be paid if the transaction is registered as a sale. If everything is carried out as an investment transaction, then VAT is not paid.

The host

Oddly enough, but for the receiving party, income tax will be paid in the same way without taking into account this property or cash. This is due to the fact that in fact the organization did not receive any income. The only difficulty that may arise for the receiving party is related to the subsequent accounting for depreciation if any property is accepted. In order to avoid difficulties, it is necessary to carry out a market valuation of the property when accepting it on the balance sheet. If in the future it is planned to sell the property contributed to the authorized capital of the LLC, then the cost will need to be included in the tax return.

Transfer-acceptance act

In order to correctly accept property on the balance sheet, it is necessary to draw up an act of acceptance and transfer. A sample act of acceptance and transfer of property to the authorized capital of an LLC is given below.

E.A. Sharonova, economist

Making a contribution to the property of JSC

How the transferring and receiving parties should reflect the contribution in accounting and tax accounting

Since July of this year, the shareholders have been completely legal grounds can make contributions to the property of joint-stock companies and Law of July 3, 2016 No. 339-FZ. Such financial aid does not increase the authorized capital of the JSC and does not change the ratio of shares between the owners and the nominal value of the shares. The easiest way is to make a contribution with money, then the question of calculating VAT will not arise at all. If you make a contribution with property, the transferring party will have to charge VAT, but the receiving party will not be able to accept it for deduction.

What is in the account of the transferring party

accounting

The procedure for recording transactions for making contributions to the property of JSC normative documents accounting is not specified separately. Therefore, you can apply the procedure in force when making contributions to an LLC. And there are two approaches here.

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

• <если>money is deposited - Kt account 51 "Settlement accounts";
• <если>property is brought in - Kt of accounts 01 "Fixed assets", 10 "Materials", etc.

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

• Dt of account 58 “Financial investments”, sub-account “Contribution to the property of JSC”, - Kt of account 75 “Settlements with founders”;
• Dt account 75 - Kt accounts 51, 01, 10, etc.

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

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

EXPERIENCE EXCHANGE

General Director of ACG "Vector of Development"

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

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

VAT

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

Also there will be no problems with VAT if you apply common mode and deposit money. No need to pay tax sub. 1 p. 3 art. 39, sub. 1 p. 2 art. 146 of the Tax Code of the Russian Federation; Letter of the Ministry of Finance of June 28, 2013 No. 03-07-11/24898.

If, however, you are transferring non-monetary assets, such as fixed assets or materials, as a contribution, then there are two options.

OPTION 1. Hassle-free. Agree with regulatory authorities and charge VAT on the market value of the transferred property sub. 1 p. 1 art. 146, paragraph 2 of Art. 154 Tax Code of the Russian Federation. The fact is that they consider this operation as an ordinary gratuitous transfer of property, which, for VAT purposes, is recognized as the sale of ; Ministry of Finance of August 21, 2013 No. 03-07-08 / 34198,. And all because the transfer of non-monetary assets as a contribution to the property of the company is not named either in the list of transactions that are not subject to VAT, or in the list of transactions exempt from VAT paragraph 2 of Art. 146, art. 149 Tax Code of the Russian Federation.

Although in the usual implementation the invoice is drawn up in two copies (for the seller and the buyer), in this case you can make it in one copy. After all, you will not present a tax to society, you will have to pay this VAT at your own expense. But you must register the compiled invoice in the invoice register and the sales book. Clause 3 of the Rules for keeping a sales book, approved. Decree of the Government dated December 26, 2011 No. 1137 (hereinafter - Decree No. 1137); Clause 3 of the Rules for Keeping a Journal of Accounting for Invoices, approved. Decree No. 1137.

Well, since you accrue VAT when transferring property, then, of course, you will not have to recover the input VAT previously accepted for deduction on this property. Letters of the Ministry of Finance of August 21, 2013 No. 03-07-08 / 34198, of July 15, 2013 No. 03-07-14 / 27452.

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

Firstly, you will most likely have to sue the tax authorities about non-calculation of VAT. We will rejoice that the courts will surely support you. Decrees of AS ZSO dated 12/18/2014 No. A70-11281 / 2013; FAS VVO dated 03.12.2012 No. А29-10167/2011. Secondly, since you have recognized the transfer of property as investment, you will have to restore the previously deductible VAT on this property from sub. 1, 2 p. 3 art. 170 Tax Code of the Russian Federation. For materials, the tax is restored in full, and for fixed assets - in proportion to the residual value at the date of transfer.

So the benefit is possible only if the restored VAT is much less than the VAT charged on the market value (under option 1). Otherwise, there is no point in suing the inspectorate for non-calculation of VAT.

income tax

For tax purposes, making a contribution to the property of a company has long been regarded by regulatory authorities as an ordinary donation. And therefore they do not allow to take into account in the "profitable" expenses neither the value of the property transferred, nor the amount of money contributed. paragraph 16 of Art. 270 of the Tax Code of the Russian Federation; Letters of the Ministry of Finance dated May 10, 2006 No. 03-03-04 / 1/426, dated March 14, 2006 No. 03-03-04 / 1/222.

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

What is in the account of the receiving party

accounting

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

• <если>money is deposited: Dt of account 51 “Settlement accounts” - Kt of account 83;
• <если>property is brought in: Dt of accounts 01 “Fixed assets”, 10 “Materials” - Kt of account 83.

This operation can be reflected in two records:

• Dt of account 75 “Settlements with founders” - Kt of account 83;
• Dt accounts 51, 01, 10 - Kt accounts 75.

That is, for JSCs, receiving deposits from participants is not income. clause 2 PBU 9/99. And this is right, because the increase in the value of the JSC's property occurs for reasons that do not depend on its activities.

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

VAT

When receiving money as a contribution to property, JSCs will not have to charge VAT. After all, their receipt is not associated with payment for goods sold (works, services) sub. 2 p. 1 art. 162 of the Tax Code of the Russian Federation; Letter of the Ministry of Finance dated 04.20.2012 No. 03-07-11/121.

If, however, you received non-monetary assets as a contribution to property and the shareholder nevertheless issued you an invoice with VAT, you still cannot accept it for deduction. Letters of the Federal Tax Service dated May 26, 2015 No. GD-4-3 / [email protected]; Ministry of Finance of July 27, 2012 No. 03-07-11/197. After all, you do not pay anything for this property, that is, you receive it free of charge. And in this case, the invoice is not registered in the purchase book sub. "a" p. 19 of the Rules for maintaining a book of purchases, approved. Decree No. 1137. So you do not reflect this VAT either in accounting or in tax accounting.

income tax

On the value of the property received from shareholders, you may not pay income tax if one of two conditions is met.

TELLING THE MANAGER

If the shareholder's share in the authorized capital of the JSC is less than 50%, then in order to avoid paying income tax, it is necessary that in the agreement (decision) it was indicated that the contribution to the property is made in order to increase the net assets of the joint-stock company.

CONDITION 1. The property is transferred to you in order to increase net assets. Then this should be explicitly stated in the documents on making contributions (agreement between the JSC and the shareholder, the decision of the shareholders). At the same time, the size of the shareholder's share in the authorized capital of the JSC does not matter. Letter of the Ministry of Finance dated February 9, 2006 No. 03-03-04/1/100 ).

Can a joint-stock company take into account the received property in expenses?

If money is received, then there are no problems at all. The cost of fixed assets, inventories, works or services purchased with this money you take into account in expenses in the general order Letter of the Ministry of Finance No. 03-03-06/1/142 dated March 20, 2012. That is, in exactly the same way as if they had spent their own funds on all this.

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

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