Forgiveness of debt by the founder is not subject to income tax and only if it goes to increase net assets? Conversion of Founder's Loan to Additional Capital Forgiveness of debt to increase net assets.

The legislation of the Russian Federation does not establish what documents debt forgiveness can be issued. This may be an agreement (agreement) or a debt forgiveness notice drawn up by the creditor and sent to the debtor. This follows from articles 407, 415 Civil Code of the Russian Federation and paragraph 1 of Article 9 of the Law of December 6, 2011 No. 402-FZ.

accounting

In accounting, reflect the amount of the debt forgiven to the organization as part of other income on the loan of account 91 “Other income and expenses” (clause 7 of PBU 9/99). Make wiring:

Debit 60 (66, 67, 75, 76…) Credit 91-1
- reflects the amount of forgiveness of the debt.

This follows from the Instructions for the chart of accounts (accounts 91, 60, 66, 67, 76).

Incomes in the form of debt forgiveness, reflect as other income in the reporting period in which the notice (agreement, contract) on debt forgiveness was signed (received) (paragraph 16 of PBU 9/99).

Instead of forgiving a debt, you can pay additional contributions to the society . That is, to offset monetary claims against the company (clause 4, article 19 of the Law of February 8, 1998 No. 14-FZ).

An example of the reflection in the accounting of the debtor of the forgiveness of the debt under the supply agreement

On January 20, Alfa LLC shipped LLC Trading company"Hermes"" goods worth 118,000 rubles. (including VAT - 18,000 rubles). The term of payment for goods according to the supply agreement is 21 calendar days from the date of shipment.

Since bankruptcy proceedings were initiated against Hermes, Alpha forgave the debt to the buyer. On February 19, Hermes received a debt forgiveness notice in the amount of 118,000 rubles.

Debit 41 Credit 60
- 118,000 rubles. - the purchased goods are credited;

Debit 19 Credit 60
- 18,000 rubles. - reflected input VAT on purchased goods.

Debit 60 Credit 91-1
- 118,000 rubles. - reflects the amount of forgiveness of the debt.

An example of the reflection in the debtor's accounting of debt forgiveness under a loan agreement with an organization

On February 28, Alfa LLC provided a loan in the amount of 500,000 rubles to Trade Firm Germes LLC. for the period from March 1 to March 31 (inclusive). The amount of interest payable to the lender for the use of borrowed funds is 4,000 rubles.

As of the loan repayment date (March 31), a debt forgiveness agreement was signed, according to which Alfa releases Hermes from the obligation to return the received loan amount and pay interest for the use of borrowed funds.

To reflect operations under a loan agreement, the Hermes accountant opened account 66 “Settlements for short-term loans and loans” sub-accounts:
- "Settlements on the principal debt";
- Interest calculations.

Operations related to the forgiveness of the debt, the accountant of "Hermes" reflected in the accounting as follows.

Debit 51 Credit 66 sub-account "Settlements on the principal debt"
- 500,000 rubles. - credited to the current account the amount of the loan.

Debit 91-2 Credit 66 sub-account "Interest calculations"
- 4000 rub. - accrued interest on the loan received;

Debit 66 subaccount "Settlements on the principal debt" Credit 91-1
- 500,000 rubles. - debt on the principal amount of the debt is written off;

Debit 66 subaccount "Interest calculations" Credit 91-1
- 4000 rub. - written off the debt on payment of interest on the loan.

BASIC: income tax

The amount of forgiven debt (under the contract for the purchase of goods, works, services, property rights - including VAT) is included in non-operating income (clauses 8 and 18 of article 250 of the Tax Code of the Russian Federation).

Recognize non-operating income as of the date of signing (receipt) of a notice (agreement, contract) on debt forgiveness (subclause 3 clause 4 article 271, clause 2 article 273 of the Tax Code of the Russian Federation). This procedure applies regardless of which agreement the debt is written off in this way (contract for the purchase of goods, works, services, property rights or loans) and which method the organization uses when calculating income tax.

At the same time, if the debt is written off under a contract for the purchase of goods (including for subsequent sale), works, services, property rights and the organization applies the cash method at the time of signing (receiving) a notice (agreement, contract) of debt forgiveness, the purchased goods (works, services, property rights) will be considered paid. This is explained by the fact that clause 3 of Article 273 is subject to payment tax code The Russian Federation understands, among other things, another way to terminate an obligation (in this case, debt forgiveness) (clause 1, article 407, article 415 of the Civil Code of the Russian Federation).

If debt forgiveness occurs under an interest-bearing loan agreement, then also take into account the interest accrued on it in income (clause 18, article 250 of the Tax Code of the Russian Federation). At the same time, even those forgiven interests that the organization for some reason did not take into account earlier in expenses are reflected in income (letter of the Ministry of Finance of Russia dated March 31, 2011 No. 03-03-06 / 1/191).

With the accrual method, at the time of signing (receipt) of a notice (agreement, contract) on debt forgiveness, write off the interest accrued in the current reporting period, but not taken into account at the time of debt forgiveness, as a reduction in taxable profit (subclause 2, clause 1, article 265, clause 8, article 272 of the Tax Code of the Russian Federation).

Include interest in the calculation of the tax base (paragraph 1 of article 269, subparagraph 2 of paragraph 1 of article 265 of the Tax Code of the Russian Federation).

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

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

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

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

However, in a letter dated March 6, 2009 No. 3-2-06/32, the Federal Tax Service of Russia expressed a different point of view. As a result of debt forgiveness, the organization saves money, which can be equated to receiving money, that is, property (clause 3 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 22, 2005 No. 98). Property received free of charge from the founder, whose share in the organization exceeds 50 percent, is not recognized as income (subclause 11, clause 1, article 251 of the Tax Code of the Russian Federation). Therefore, this transaction should not be subject to income tax.

In addition, in this letter, the Federal Tax Service of Russia indicated that on the issue of accounting for the amount of debt forgiven by the founder on the return of the loan amount, the Ministry of Finance of Russia takes a similar position. Since the termination of obligations in cases of debt forgiveness under loan agreements is similar in nature to the termination of obligations by debt forgiveness for goods supplied (work performed, services rendered, property rights received), subparagraph 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation should also be applied to these operations.

In this situation, the organization must independently decide which of these positions to follow. However, in connection with the release of later clarifications of the regulatory agencies, disputes with the inspectors may arise. At the same time, in arbitration practice there are examples of court decisions made in favor of organizations (see, for example, the decision of the Supreme Arbitration Court of the Russian Federation of July 24, 2009 No. VAS-8675/09, the resolution of the FAS of the North Caucasus District of May 21, 2009 No. No. A63-9238 / 2008-C4-37, Central District dated November 15, 2007 No. A54-125 / 2007-C13, North-Western District dated April 4, 2003 No. A56-39007 / 02).

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

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

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

The Ministry of Finance of Russia indicates that the amount of the loan received, forgiven by the founder, whose share in the authorized capital of the organization exceeds 50 percent, should not be included in income (see, for example, letters dated September 30, 2013 No. 03-03-06 / 1 / 40367 , dated October 21, 2010 No. 03-03-06 / 1/656, dated October 14, 2010 No. 03-03-06 / 1/646). This is explained like this.

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

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

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

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

However, based on the position of regulatory agencies on a similar issue of accounting for the amount of debt forgiven by the founder under a contract for the purchase of goods (works, services, property rights), it is possible that non-reflection of income when forgiving debt under a loan agreement may cause claims from inspectors. The fact is that, if you follow the norms of civil law, debt forgiveness is a way to terminate the obligation under the initial reimbursable contract(Articles 407 and 415 of the Civil Code of the Russian Federation). Therefore, it is impossible to consider the amount of forgiven debt, including under a loan agreement, as property received free of charge (Article 572 of the Civil Code of the Russian Federation). For the purposes of taxation, the specified operation should be considered as a write-off of accounts payable, which is included in non-operating income on the basis of paragraph 18 of Article 250 of the Tax Code of the Russian Federation. There are no exceptions regarding the non-reflection of income received from the founder in relation to this paragraph. Therefore, when forgiving debt under a loan agreement (as well as under any other agreement), it is necessary to generate income.

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

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

Together with the debt forgiveness agreement, a protocol must be drawn up general meeting members of the company (shareholders), for which property, property or non-property rights are transferred to the organization to increase net assets (subclause 3.4, clause 1, article 251 of the Tax Code of the Russian Federation). At the same time, the size of the share of the founder in the authorized capital of the organization does not matter. The opportunity to use such a benefit appeared on January 1, 2011 and applies to obligations that arose from January 1, 2007 (clauses 1 and 2 of article 4 of the Law of December 28, 2010 No. 409-FZ).

See more on this. .

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

The amount of interest on debt forgiveness must be taken into account as part of non-operating income (clause 18, article 250 of the Tax Code of the Russian Federation).

It is explained like this. At its core, interest is a fee that the borrower must pay for the use of borrowed funds in accordance with the loan agreement (Article 809 of the Civil Code of the Russian Federation). Therefore, when debt is forgiven, the organization's accounts payable are written off (Article 415 of the Civil Code of the Russian Federation). There are no exceptions in the order of its taxation by law.

This position is reflected in the letters of the Ministry of Finance of Russia dated September 30, 2013 No. 03-03-06/1/40367, dated October 14, 2010 No. 03-03-06/1/646, dated April 17, 2009 No. 03- 03-06/1/259.

The tax department confirms the stated point of view (see, for example, letters of the Federal Tax Service of Russia dated May 22, 2009 No. 3-2-13 / 76, the Federal Tax Service of Russia for Moscow dated December 29, 2008 No. 19-12 / 121854).

However, in a letter dated March 6, 2009 No. 3-2-06/32, the Federal Tax Service of Russia expressed a different point of view.

As a result of debt forgiveness, the organization saves money, which can be equated to receiving money, that is, property (clause 3 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 22, 2005 No. 98). Property received free of charge from the founder, whose share in the organization exceeds 50 percent, is not recognized as income (subclause 11, clause 1, article 251 of the Tax Code of the Russian Federation). Therefore, this transaction should not be subject to income tax.

In addition, in this letter, the Federal Tax Service of Russia indicated that on the issue of accounting for the amount of debt forgiven by the founder on the return of the loan amount, the Ministry of Finance of Russia takes a similar position. Since the forgiveness of the principal debt under loan agreements is similar in nature to the termination of obligations for interest on loans, subparagraph 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation should also be applied to these operations.

An example of reflection in accounting and taxation of the amount of interest on a loan provided by the founder. The loan debt was written off by debt forgiveness. The organization applies the general system of taxation

One of the founders of Alpha LLC is Master Production Company LLC. The share of "Master" in the authorized capital of the organization is 51 percent.

On January 17, Master provided Alfa with a loan in the amount of 200,000 rubles. at 15 percent per annum for a period of two months (not a leap year). Under the terms of the agreement, interest is paid no later than the 20th day of the following month. The organization has not received any other loans.

On February 16, Master's management decided to forgive the debt on the loan. When reflecting the debt forgiveness operation, the accountant was guided by the position of the Ministry of Finance of Russia.

The following entries were made in the accounting.

Debit 51 Credit 66
- 200,000 rubles. - received a loan from the founder of the organization.

Debit 91-2 Credit 66
- 1151 rubles. (200,000 rubles × 15%: 365 days × 14 days) - interest accrued for January.

Alfa pays income tax on a monthly basis, using the accrual method. When calculating income tax for January, the accountant took into account interest on a loan in the amount of 1,151 rubles as part of non-operating expenses.

Debit 91-2 Credit 66
- 1315 rubles. (200,000 rubles × 15%: 365 days × 16 days) - interest for February was accrued;

Debit 66 Credit 91-1
- 200,000 rubles. - the amount of forgiven debt on the received loan is attributed to other income of the organization;

Debit 66 Credit 91-1
- 2466 rubles. (1151 rubles + 1315 rubles) - interest on forgiven debt is included in other income.

When calculating income tax in February, the accountant took into account interest on forgiven debt - 2466 rubles as part of income. (1151 rubles + 1315 rubles).

As part of non-operating expenses, the accountant took into account interest on the loan in the amount of 1315 rubles.

Advice: there is a way not to take into account in income the amount of the debt forgiven by the founder in the form of interest under the loan agreement.

Together with the debt forgiveness agreement, it is necessary to draw up a protocol of the general meeting of the company's participants (shareholders), according to which property, property or non-property rights are transferred to the organization to increase net assets (subclause 3.4, clause 1, article 251 of the Tax Code of the Russian Federation). At the same time, the size of the share of the founder in the authorized capital of the organization does not matter. The opportunity to use such a benefit appeared on January 1, 2011 and applies to obligations that arose from January 1, 2007 (clauses 1 and 2 of article 4 of the Law of December 28, 2010 No. 409-FZ).

See more on this.How to register and record the receipt of financial assistance from the founder (participant, shareholder) .

Situation: Is it necessary to recover VAT from the amount of forgiven debt under a contract for the purchase of goods (works, services, property rights)? Goods (works, services, property rights) purchased for use in transactions subject to VAT.

No, it doesn `t need.

The forgiveness of the debt by the seller (executor) leads to a decrease in the obligations of the buyer (customer) to pay for the goods delivered to him (works, services, property rights (Articles 407, 415 of the Civil Code of the Russian Federation). However, the price of the contract and the amount of VAT previously presented upon forgiveness of the debt remain unchanged. The buyer has the right to accept the amount of VAT presented by the seller (executor) for deduction simultaneously with the posting of goods (works, services, property rights) (clause 2, article 171, clause 1, article 172 of the Tax Code of the Russian Federation). ) the right to deduct input VAT does not depend.Therefore, if the delivered goods (works, services, property rights) were taken into account, and the amount of VAT was allocated in a correctly executed invoice, then the application of the tax deduction by the buyer (customer) is recognized as justified.

The list of conditions under which the buyer (customer) must restore the VAT accepted for deduction is given in paragraph 3 of Article 170 of the Tax Code of the Russian Federation. Debt forgiveness, that is, the refusal of the seller (executor) to receive payment for the delivered goods (works, services, property rights), is not indicated in this list. Therefore, there are no grounds for restoring the input VAT in the situation under consideration.

Decision of the Constitutional Court of the Russian Federation dated November 4, 2004 No. 324-O, according to which, when debt is forgiven, the buyer (customer) must restore the input VAT, has now lost its relevance. The reason for such a conclusion was the fact that when the debt is forgiven, the buyer (customer) does not bear the actual costs of paying VAT. Since 2006, the payment of VAT to the seller (executor) has been excluded from the list of conditions required for the application of a tax deduction (clause 21, article 1, clause 1, article 5 of the Law of July 22, 2005 No. 119-FZ). Therefore, in relation to transactions made in later periods, the clarifications of the Constitutional Court of the Russian Federation do not apply.

USN

Include the amount of forgiven debt both under the contract for the purchase of goods (works, services, property rights) and under the loan agreement as part of non-operating income (clauses 8 and 18 of article 250, clause 1 of article 346.15 of the Tax Code of the Russian Federation). Do this on the date of signing (receipt) of the notice (agreement, contract) on debt forgiveness, regardless of the applicable object of taxation (clause 1, article 346.17 of the Tax Code of the Russian Federation).

On whether the debtor can take into account in income when calculating the single tax the amount of debt forgiven by the founder, who has a contribution to authorized capital debtor more than 50 percent, (subclause 1, clause 1.1, article 346.15 of the Tax Code of the Russian Federation).

If the organization considers single tax from the difference between income and expenses, the cost of purchased goods (works, services) is written off only after payment. The termination of obligations at the moment when the notice (agreement, contract) on debt forgiveness is also considered such payment (clause 1, article 407, article 415 of the Civil Code of the Russian Federation). Therefore, if organizations have forgiven debt for property, plant and equipment, intangible assets or goods purchased for resale, such assets are considered paid and are written off to general order(Subparagraphs 2 and 4, paragraph 2 of Article 346.17 of the Tax Code of the Russian Federation). Similarly, the cost of works and services that are not of an industrial nature is written off (clause 2 of article 346.17 of the Tax Code of the Russian Federation).

In order to write off the cost of raw materials, components, work, production services and everything that is named in Article 254 of the Tax Code of the Russian Federation as part of material costs, the payment requirement must be fulfilled in specific ways. It is necessary to transfer money from the current account, pay it to the cashier or pay off the debt in another way (subclause 1 clause 2 article 346.17 of the Tax Code of the Russian Federation). With debt forgiveness, debt repayment does not occur, so material costs cannot be written off. A similar point of view is stated in the letter of the Ministry of Finance of Russia dated April 15, 2011 No. 03-11-06/2/57.

If organizations forgive debt under an interest-bearing loan agreement, interest cannot be written off as expenses.

When the object of taxation is income, the organization does not take into account any expenses (clause 1 of article 346.18 of the Tax Code of the Russian Federation).

If an organization pays a single tax on the difference between income and expenses, interest is considered paid at the time of repayment of the debt. And when a notice (agreement, contract) on debt forgiveness is signed, this condition is not met. This procedure follows from subparagraph 9 of paragraph 1 of article 346.16 and subparagraph 1 of paragraph 2 of article 346.17 of the Tax Code of the Russian Federation.

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

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

If the share contributed by the founder is 50 percent or less, include the amount of the written-off debt on the loan as income. Do the same if the property transferred to the organization as a result of debt forgiveness was transferred to third parties during the year. This follows from paragraph 1 of Article 346.15 and paragraph 8 of Article 250 of the Tax Code of the Russian Federation. Recognize income on the date of signing the debt forgiveness agreement (clause 1, article 346.15, clause 2, article 273 of the Tax Code of the Russian Federation).

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

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

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

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

For accounting for interest on a debt forgiven by the founder, see How to account for taxation of interest on a loan (credit) received .

An example of settlements with the founder of the organization for the provided loan. The share of the founder in the authorized capital of the organization is more than 50 percent. The organization applies the simplification

One of the founders of Alpha LLC is A.V. Lvov. The share contributed by Lvov to the authorized capital of the organization is 51 percent.

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

When calculating the single tax, Alfa's accountant was guided by the position of the Russian Ministry of Finance. Therefore, he did not include the amount of forgiven debt in income.

UTII

The object of taxation of UTII is imputed income (clause 1 of article 346.29 of the Tax Code of the Russian Federation). Therefore, the amount of forgiven debt will not affect the tax base for UTII.

The payment of a single tax provides for exemption, in particular, from the obligation to pay income tax (clause 4, article 346.26 of the Tax Code of the Russian Federation). If the debtor carries out only one type of entrepreneurial activity, subject to UTII taxation, the amount of forgiven debt is considered received under this taxation regime. Consequently, such income is exempt from income tax (clause 4, article 346.26 of the Tax Code of the Russian Federation). A similar conclusion was made in the letters of the Ministry of Finance of Russia dated September 22, 2006 No. 03-11-04/3/419, dated July 7, 2006 No. 03-11-04/3/338. They expressed an opinion about accounting for other non-operating income of the organization on UTII (for example, the amount of overdue accounts payable).

OSNO and UTII

If the debtor applies the general taxation system and pays UTII, he is obliged to keep separate accounting of income, expenses and business transactions (clause 7 of article 346.26 of the Tax Code of the Russian Federation). When calculating income tax, include in non-operating income only the amount of forgiven debt that arose as part of the activity on common system taxation.

If the debt is forgiven for goods (works, services, property rights) that were used in both types of activities, then when writing off the debt, include the entire amount of non-operating income in the calculation of the tax base for income tax. This is stated in the letter of the Ministry of Finance of Russia dated March 15, 2005 No. 03-03-01-04 / 1/116. This position is based on the fact that the current tax legislation does not contain a mechanism for distributing non-operating income between different types activities.

R.A. Simonov

Deputy Director for Corporate Procedures

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

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

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

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

Free transfer of property and property rights from a shareholder

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

“11) in the form of property received Russian organization free of charge:
from the organization, if the authorized (share) capital (fund) of the receiving party consists of more than 50 percent of the contribution (share) of the transferring organization;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

findings

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

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

Wherein:

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

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

Debt Forgiveness

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

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

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

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

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

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

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

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

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

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

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

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

However, before the advent judicial practice or explanations of judicial and state bodies on this issue, this is just an opinion. Accordingly, as in the case of gratuitous financial assistance, there is a risk that the debt forgiveness transaction will be recognized as a donation.

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

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

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

You should also take into account the following nuances:

findings

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

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

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

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

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

So the subsidiary needs help. The options here are simple:

<если> you want to calmly understand, what caused the losses, and only then form a strategy to help the “daughter”, then this is your full right. In the spring (no later than April 30) you can spend annual meeting, approve the reporting of the subsidiary and make a decision on depositing funds to cover the loss in paragraph 1 of Art. 91, sub. 3 p. 3 art. 91 of the Civil Code of the Russian Federation; sub. 6 p. 2 art. 33, art. 34 of the Federal Law of February 8, 1998 No. 14-FZ. But then its annual reporting will still be with negative net assets;
<если>you are aware of the situation in the "daughter", consider its losses objective and are ready to compensate them, then with the help it is better not to tighten it. We need to hurry up and complete everything before the end of the year, so that the indicators in the balance sheet and the statement of changes in the capital of the "daughter" for the year already take into account the assistance provided to her.

This is the last situation we will consider.

Choosing a way to help

If you have not repaid the debt to the "daughter" for contributions to its authorized capital, then you should start with this. Such a creditor is not included in the accountable assets of the "daughter" t Clause 3 of the Procedure for assessing the value of net assets ... approved. Order of the Ministry of Finance of Russia No. 10n, Federal Commission for the Securities Market of the Russian Federation No. 03-6 / pz dated 01.29.2003; Letter of the Ministry of Finance of Russia dated December 7, 2009 No. 03-03-06/1/791. So, if you pay off your debts on contributions, then the net assets of the “daughter” will grow by the same amount.

Regardless of the tax regime of your company and "daughter" (general or simplified), monetary contributions to its authorized capital:

will not be taxed by your company. At the same time, you will be able to account for these contributions as an expense (or deductible) when further selling shares in the capital of the subsidiary, exiting its capital or liquidating it. and sub. 4 p. 1 art. 251, sub. 2.1 p. 1 art. 268 Tax Code of the Russian Federation. If your company uses a simplified system, then you can take into account the costs of contributions to the capital of the “daughter” without a dispute only on the condition that you were the founder of the “daughter” from the very beginning, and did not buy a share in it from third parties. c sub. 1 p. 1.1 art. 346.15, sub. 4 p. 1 art. 251 of the Tax Code of the Russian Federation; Letter of the Ministry of Finance of Russia dated December 6, 2005 No. 03-11-04/2/145;
will not be taxed and the "daughter » paragraph 1 of Art. 277, sub. 3 p. 1 art. 251 ,.

If there are no debts on contributions, then, perhaps, on the contrary, the “daughter” itself owes something to your company? If you forgive her debt, then her loss will be reduced, and her net assets will increase. Moreover, neither the “daughter” nor your company will have to pay taxes upon forgiveness of the debt (why - we will explain further )sub. 3.4 p. 1 art. 251 Tax Code of the Russian Federation. The only negative is that the net assets of your parent company will decrease by the amount of the forgiven debt.

Well, if there were no such debts, then you will have to provide assistance in another way. But first you need to choose the "content" of such help - what exactly you can quickly and without risk transfer to your "daughter".

We note right away that no matter what you transfer (money, other property, property rights), these amounts will not be taken into account in taxable income (tax under the simplified taxation system) income of the “daughter” t sub. 3.4 p. 1 art. 251, sub. 1 p. 1.1 art. 346.15 of the Tax Code of the Russian Federation. This benefit was introduced this year. at paragraph 2 of Art. 4 Federal Law No. 409-FZ dated December 28, 2010- just for cases when participants provide "daughter" assistance in order to increase their net assets. At the same time, your share in the capital of the "daughter" does not play any role - that is, it may be less than 50% of the authorized capital.

Most importantly, write in the decision authorizing such assistance that the funds / property / rights are transferred precisely "in order to increase the company's net assets so-and-so..." And the whole operation can be carried out very quickly - unlike, for example, additional contributions to the authorized capital, such assistance does not require the consent of other owners. In addition, no independent appraisal of the transferred assets is needed.

We transfer assets to the "daughter"

What is on your account

Regardless of what exactly you give to the “daughter” (money, property, rights):

There is a serious nuance for VAT if you transfer non-monetary assets to your “daughter”:

<если> your company is not a VAT payer(for example, applies simplified tax), then, of course, you will not have any problems with this tax;
<если> your company is a VAT payer, then you have two scenarios.

OPTION 1. You charge VAT on the book value of donated goods (if its sale, of course, is subject to VAT )sub. 1 p. 1 art. 146 Tax Code of the Russian Federation. "Daughter" will not be able to accept this VAT for deduction, since you do not present it to her for payment e paragraph 2 of Art. 171, paragraph 1 of Art. 172 of the Tax Code of the Russian Federation; Letter of the Ministry of Finance of Russia dated April 25, 2011 No. 03-07-14/39.

OPTION 2. You are ready to prove to the tax authorities during the audit (and, most likely, to sue) that, as in the case of contributions to property, such a transfer of property is of an investment nature and is not a sale (after all, the net assets of the “daughter” will increase, and hence the actual value your share )sub. 4 p. 3 art. 39 Tax Code of the Russian Federation. But then the tax authorities will force you to recover the incoming VAT on the transferred property (if you accepted it for deduction )sub. 1, 2 p. 3 art. 170 Tax Code of the Russian Federation. Thus, it may turn out that you will not gain anything from this dispute, and it will be easier to calculate and pay tax.

Thus, the transfer of money is the easiest to organize and take into account, and other options for assistance need to be carefully calculated.

What is in the account of the "daughter"

Accounting and tax accounting at the "daughter" also has significant nuances:

in accounting, the “daughter” accepts the received assets (inventory, fixed assets, intangible assets, financial investments) for accounting according to market value and recognizes their value as other income in Clause 23 of the Accounting Regulations ... approved. Order of the Ministry of Finance of Russia dated July 29, 1998 No. 34n; clause 10.3 PBU 9/99 "Income of the organization", approved. Order of the Ministry of Finance of Russia dated 06.05.99 No. 32n; clause 9 PBU 5/01 "Accounting for inventories", approved. Order of the Ministry of Finance of Russia dated June 9, 2001 No. 44n; clause 10 PBU 6/01 "Accounting for fixed assets", approved. Order of the Ministry of Finance of Russia dated March 30, 2001 No. 26n; clause 13 PBU 14/2007 "Accounting for intangible assets", approved. Order of the Ministry of Finance of Russia dated December 27, 2007 No. 153n; clause 13 PBU 19/02 “Accounting for financial investments”, approved. Order of the Ministry of Finance of Russia dated December 10, 2002 No. 126n. The receipt of property is reflected in the debit of the accounts of the relevant assets and the credit of account 91 “Other income and expenses » Instructions for using the Chart of Accounts.

As an option, the value of the assets of the "daughter" can be taken into account as amounts that increase additional capital (that is, attributed to account 83 "Additional capital" and not included in income). After all, such assistance has a nature similar to contributions to the property of a “daughter”, and the Ministry of Finance requires such contributions to be taken into account precisely as part of additional capital. a clause 2 PBU 9/99; Letter of the Ministry of Finance of Russia No. 07-05-06/18 dated January 29, 2008. But with any accounting option, the net assets of the "daughter" will increase after the capitalization of the property;

in tax accounting, the value of the received assets in the income of the subsidiary is not taken into account. We recall once again that this exemption applies to any type of property and property rights. in sub. 3.4 p. 1 art. 251 Tax Code of the Russian Federation. At the same time, the “daughter” will not be able to take into account the cost of the property received in the future, because it did not incur actual expenses for its acquisition a paragraph 1 of Art. 252 of the Tax Code of the Russian Federation; Letter of the Ministry of Finance of Russia dated February 7, 2011 No. 03-03-06/1/80. An exception is your company donated fixed assets to it. Such fixed assets "daughter" has the right to evaluate in tax accounting at market value and depreciate b paragraph 1 of Art. 257 Tax Code of the Russian Federation. If the “daughter” applies a simplified system, then it will not have expenses for the acquisition of fixed assets (there is no payment )paragraph 2 of Art. 346.17 of the Tax Code of the Russian Federation.

We take the creditor from the "daughter"

Suppose you are ready to help your “daughter”, but right now your company does not have money or suitable property to transfer. In this case, there is a wonderful way to increase the net assets of the “daughter” in one day without immediate costs on your part. It is necessary that the “daughter” shares the creditor with you. More precisely:

As a result of such a transfer of debt, the subsidiary's accounts payable will decrease. This means that her net assets will increase by the same amount. In accounting, the amount of forgiven debt is attributed to its other income s pp. 7, 10.6, 16 PBU 9/99, and in the tax regime (regardless of the tax regime of the "daughter") it is not taken into account at all - after all, the debt is forgiven in order to increase the net assets of the company and sub. 3.4 p. 1 art. 251 Tax Code of the Russian Federation.

The problem can expect a "daughter", as they say, on the other hand - "expendable". If it applies the "income-expenditure" simplification and transfers to the parent company the debt to pay, for example, goods, then the tax authorities may consider such goods as a result unpaid and paragraph 1 of Art. 346.17 of the Tax Code of the Russian Federation- after all, the “daughter” will not pay anyone any money. Simplisticians have already encountered such claims (see details in,). So if the “daughter” uses simplified taxation, then it is better to accept a “non-expendable” debt from her, for example, on a loan or credit.

For your company, the tax and accounting consequences will be the same as when transferring “live” money to a “daughter” - other expenses in accounting and its absence in tax accounting.

Example. Accounting for the transfer of debt from a subsidiary to a parent company

/ condition / As of the end of December 2011, the accounts of the Subsidiary include accounts payable to the supplier in the amount of 2,360,000 rubles. for the delivered goods with a payment due date of February 15, 2012. The main participant of the Subsidiary, the Mama company, agreed to assume this debt before the end of the reporting period, forgiving the Subsidiary of the arising obligations in connection with the transfer of the debt.

On December 30, a debt transfer agreement was concluded, to which the supplier gave his written agreement. On the same day, Mama decided to write off the debt owed to it by Daughter in order to increase its net assets.

/ decision / The following entries will be made in the accounting records of the subsidiary.

The following entries will be made in the accounting records of Mama.

Contents of operation	Dt	ct	Amount, rub.	primary document
As of the date of signing the debt transfer agreement
Reflected the transfer of debt to the supplier from the company "Daughter" with the emergence of the right to claim debt		76, sub-account "Supplier"	2 360 000	Debt Transfer Agreement
Forgiven the debt of the company "Daughter"	91-2 "Other expenses"	76, sub-account "Company "Daughter""	2 360 000	Debt cancellation decision
As of the date of repayment of the transferred debt to the supplier
The obligation on the transferred debt is repaid	76, sub-account "Supplier"	51 "Settlement accounts"	2 360 000	Current account statement

In conclusion, we note once again that with this form of assistance to the “daughter”, your parent company will not be able to take into account the value of the property transferred to it or property rights in tax expenses. in paragraph 16 of Art. 270 Tax Code of the Russian Federation. And in the event of a further sale of a share in the authorized capital of a subsidiary, withdrawal from it or its liquidation, it will be possible to take into account only the costs of acquiring a share, in particular, initial and additional contributions to the authorized capital l sub. 2.1 p. 1 art. 268, sub. 4 p. 1 art. 251 of the Tax Code of the Russian Federation; p. 2 Letters of the Ministry of Finance of Russia dated 06.09.2010 No. 03-04-06 / 2-204, but not similar gratuitous aid.

Keep in mind that if you decide to contribute to the property of the "daughter", then the procedure will be much more complicated - you will need to draw up a decision of the general meeting or even register amendments to its charter (if such contributions are not provided for in it).

It will not be possible to quickly increase the net assets of the "daughter" and additional contributions to its authorized capital. Firstly, this is an even longer procedure that requires registration of amendments to the company's charter in the Unified State Register of Legal Entities. And secondly, after making contributions, the “daughter” may still have a shortage of net assets. After all, if you increase the net assets of the “daughter” with contributions and increase its authorized capital by the same (and not less) amount, then its increased net assets will again be lower than the also increased authorized capital.

How to reflect the fact of forgiveness in the accounting of the borrowing organization (LLC) former member - individual(lender) of debt under an interest-free loan agreement in order to increase the net assets of the company?

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

Civil law relations

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

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

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

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

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

Accounting

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

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

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

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

Corporate income tax

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

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

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

Since in this case, at the time of the conclusion of the debt forgiveness agreement, the lender is no longer a member of the LLC, we believe that the norm of paragraphs. 3.4 p. 1 art. 251 of the Tax Code of the Russian Federation cannot be applied when forgiving a debt on a loan. A similar point of view on the application of the norm of paragraphs. 3.4 p. 1 art. 251 of the Tax Code of the Russian Federation when a debt is forgiven by a person who is no longer a member of the company applying the USN, is expressed in the Letter of the Ministry of Finance of Russia dated.

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

	Credit	Amount, rub.	primary document
On the date of the loan
Received a loan from a member			Loan agreement, Bank statement on current account
As of the date of receipt of the notice of debt forgiveness
The amount of forgiven debt under the loan agreement is recognized as other income			Lender notice of debt forgiveness

L.V. Guzheleva

Consulting and Analytical Center for Accounting and Taxation