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

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

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

Increase in the authorized capital in joint-stock companies

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

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

<1>Federal Law No. 208-FZ of December 26, 1995 "On Joint Stock Companies".

For your information. Distribution decision making net profit(losses) JSC according to the results of the financial year belongs to the exclusive competence general meeting shareholders of the company (clause 1, article 47, clause 11, clause 1, article 48 of the JSC Law).

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

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

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

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

It also states that the amount by which the authorized capital is increased at the expense of the company's property should not exceed the difference between the value net assets company and the amount of its authorized capital and reserve fund. The procedure for estimating the value of net assets of joint-stock companies was approved by the joint Order of the Ministry of Finance of Russia N 10n, the Federal Commission for the Securities Market of Russia N 03-6/pz dated 01.29.2003. According to clause 1 of the said Procedure, the value of the company's net assets is understood to be the value determined by subtracting the amount of the company's liabilities accepted for calculation from the amount of assets accepted for calculation. The assets (liabilities) involved in the calculation are listed in clause 3 (clause 4) of the Procedure.

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

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

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

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

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

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

Option 1. The shareholders of CJSC "Mercury" decided to increase the authorized capital by increasing the par value of the shares.

At the same time, the value of each share will increase by 35,000 rubles. (3,500,000 rubles / 100 shares) and will amount to 45,000 rubles. (10,000 + 35,000).

Option 2. The shareholders of CJSC "Mercury" decided to increase the authorized capital by placing additional shares.

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

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

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

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

Increase in capital stock in limited liability companies

According to the LLC Law<2>company's net profit limited liability can be used like this:

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

<2>Federal Law No. 14-FZ of February 8, 1998 "On Limited Liability Companies".

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

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

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

By virtue of paragraph 3 of Art. 20 of the LLC Law, the value of the company's net assets is determined in the manner prescribed by federal law and issued in accordance with it. regulations. However, no such order has been established. According to the Ministry of Finance, an LLC has the right to use the methodology for calculating net assets intended for JSCs (Letters No. 03-02-07/1-27 dated January 27, 2010, No. 2008 N 03-03-06/1/696).

When the authorized capital of the company is increased at the expense of net profit, the nominal value of the shares of all participants in the company increases proportionally without changing the size of their shares (clause 3, article 18 of the LLC Law).

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

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

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

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

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

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

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

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

Amendments made to the charter in connection with a change in the amount of the authorized capital and the nominal value of the company's shares must be registered. For this purpose, it is necessary to submit the documents listed in paragraph 1 of Art. 17 federal law N 129-FZ<3>:

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

<3>Federal Law No. 129-FZ of 08.08.2001 "On State Registration of Legal Entities and Individual Entrepreneurs".
<4>Approved by Decree of the Government of the Russian Federation of June 19, 2002 N 439.

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

income tax

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

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

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

• the cost of additional shares received by the shareholder organization, distributed among shareholders by decision of the general meeting in proportion to the number of shares they own;
• the difference between the nominal value of new shares received in exchange for the original shares and the initial shares of a shareholder in the event of distribution of shares among shareholders upon an increase in the authorized capital of a joint-stock company (without changing the shareholder's share in this company).

Thus, if the shareholder's participation in the JSC does not change, then with an increase in the nominal value of the shares, the shareholder does not receive income for the purposes of taxing the profits of organizations (Letter of the Ministry of Finance of Russia dated 10.24.2011 N 03-03-06/1/685).

Organizations are members of an LLC. But with taxpayers - LLC participants, everything is much more complicated. According to the Ministry of Finance, the norm prescribed in paragraphs. 15 p. 1 art. 251 of the Tax Code of the Russian Federation, does not apply to them. He believes that when these organizations increase the nominal value of shares in the authorized capital without changing the shares of participants, as, for example, when distributing retained earnings of previous years, non-operating income arises, subject to income tax in accordance with paragraph 1 of Art. 284 of the Tax Code of the Russian Federation (see Letters of September 26, 2011 N 03-03-06 / 1/588, of August 25, 2011 N 03-03-06 / 1/518, of June 8, 2011 N 03-03-06 / 3 / 4, dated 12.03.2010 N 03-04-06/2-30).

We believe that if the organization does not adhere to the Ministry of Finance approach, then it will not avoid disputes with the tax inspectorate. You may have to prove your case in court. Let us give an example of a successful resolution of the issue for the taxpayer - Resolution of the Federal Antimonopoly Service of 02.16.2009 N A65-11409 / 2006.

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

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

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

By virtue of paragraph 2 of Art. 48 of the Civil Code of the Russian Federation, a participant in a company does not have the right to own the property of the established organization, but has liability rights in relation to it, certified by a share.

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

The participants of the company may decide to increase the authorized capital at the expense of retained earnings, while the profit does not pass to the participants, but remains a separate property of the company. Participants only increase the nominal value of their shares. Shareholders will receive real economic benefit only when any of the property rights is realized.

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

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

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

Accounting

According to the Instructions for the application of the Chart of Accounts, account 80 "Authorized capital" is intended to summarize information on the state and movement of the organization's authorized capital. The balance on this account must correspond to the size of the authorized capital, fixed in founding documents organizations. Entries on account 80 are made during the formation of the authorized capital, as well as in cases of increase and decrease in capital, only after the relevant changes are made to the constituent documents.

The increase in the authorized capital due to retained earnings in accounting is reflected in the entry on the credit of account 80 in correspondence with the debit of account 84 "Retained earnings (uncovered loss)".

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

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

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

If the participant is guided by the opinion of the financial department, then in tax accounting he recognizes income from participation in LLC, and no income will arise in accounting. In this case, in accordance with paragraphs 4, 7 of PBU 18/02 "Accounting for settlements on corporate income tax"<6>in accounting, there is a permanent difference and the corresponding permanent tax liability (PNO). PNO is reflected in accounting with a debit entry 99 "Permanent tax liabilities" and credit 68 "Calculations on taxes and fees".

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

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

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

Optimization for LLC

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

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

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

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

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

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

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

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

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

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

Can participants save income tax in some way?

As an option, you can suggest the following: first draw up a decision on the payment of dividends, and then deposit funds into the account of the LLC to increase the authorized capital. From the amount of dividends received, LLC will withhold 9% - and not 20% from the difference between the old and new nominal value of the share.

Let's take a look at savings as an example.

Example 5. Let's use the data of example 4.

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

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

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

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

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

Let us remind readers that the following rule applies to dividends accrued based on the results of organizations' activities for 2010 and subsequent periods. The tax base determined on income received in the form of dividends is subject to a rate of 0%, provided that on the day of the decision to pay dividends, the organization receiving dividends for at least 365 calendar days continuously owns by right of ownership at least 50% of the share capital of the organization paying dividends (clause 1 clause 3 article 284 of the Tax Code of the Russian Federation).

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

50% of the authorized capital is owned by Uran LLC, 50% by Neptune LLC. The nominal values ​​of the shares of both participants are, respectively, 500,000 rubles.

Both participants have held shares for more than 365 days.

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

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

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

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

Option 2. Participants decide to pay dividends in the amount of 2,000,000 rubles. at the expense of the profit received as a result of the organization's activities for 2010, in proportion to the size of the shares of participants.

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

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

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

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

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

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

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

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

Fourthly, no later than one month from the date of the expiration of the term for making additional contributions, the general meeting of the company's participants must decide to approve the results of making additional contributions by the participants and to introduce amendments to the company's charter related to an increase in the size of the authorized capital.

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

• application for state registration of changes made to the constituent documents of a legal entity (form Р13001);
• documents confirming the making of deposits (copies of a bank statement on the settlement account of LLC, payment order of the participant);
• the decision of the general meeting of participants of the LLC to increase its authorized capital by making additional contributions;
• the decision of the general meeting of LLC participants on the approval of the results of making additional contributions and on the introduction of amendments to the charter related to the increase in the authorized capital;
• new edition of the charter;
• payment order for the payment of state duty for registration of amendments to the charter.

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

<9>The date of registration of changes is indicated in the certificate of amendments to the Unified State Register of Legal Entities (form P50003).

E.L. Ermoshina

Magazine editor

"Income tax:

accounting for income and expenses

The authorized capital can be increased, including at the expense of retained earnings of previous years. Such a decision is made by the shareholders (participants) of an LLC or JSC. To make a decision to increase the initial authorized capital must be paid in full (clause 6, article 90, clause 2, article 100 of the Civil Code of the Russian Federation). The amount by which the authorized capital of the company is increased at the expense of its property cannot exceed the difference between the value of the net assets of the company and the amount of its authorized capital and reserve fund (Article 18 of Federal Law No. ), clause 5, article 28 of the Federal Law of December 26, 1995 No. 208-FZ (hereinafter - the JSC Law)).

Since the increase in the authorized capital at the expense of retained earnings is not associated with the receipt of investments, but is carried out at the expense of the resources of the company itself, the percentage ratio of the shares of participants (shareholders) does not change as a result of an increase in the authorized capital.

Increase in the management company in LLC

In the event of an increase in the size of the authorized capital of an LLC due to retained earnings of previous years, the nominal value of the shares of its participants increases. Approval of the decision to increase the Criminal Code is referred by law to the competence of the general meeting of participants. At the same time, it is determined that it can be made only on the basis of financial statements for the year preceding the year in which such a decision is made (clause 1, article 18 of the LLC Law). To comply with this procedure, the company must take the following steps:

1) the general meeting of participants to take a decision on increasing the authorized capital and amending the charter (approving it in new edition);

2) submit documents to the inspection for state registration of amendments to the company's constituent documents and amendments to the Unified State Register of Legal Entities:

Application for state registration of changes made to the constituent documents in the form P13001 recommended by the Federal Tax Service of Russia and posted on the official website www.nalog.ru in the section "State Registration and Accounting of Taxpayers" (letter of the Federal Tax Service of Russia dated 08.07.2009 No. MN-22-6 / [email protected]);

Application for amendments to the Unified State Register of Legal Entities in the information about a legal entity that are not related to amendments to the constituent documents in the form P14001 recommended by the Federal Tax Service of Russia and posted on the official website www.nalog.ru in the section "State registration and accounting of taxpayers";

The decision of the general meeting of participants to increase the authorized capital at the expense of retained earnings of previous years and to amend the charter;

Changes to the charter (the charter in a new edition);

Payment order for the payment of state duty.

As practice shows, tax authorities, in addition to the main list of documents, require in addition the calculation of net assets and a profit and loss statement for the previous year with a note that it was submitted to tax authority. By signing the application, the company confirms the fact of compliance with the requirements for the presence of retained earnings and that the amount by which the UK is increased does not exceed the difference between the value of the NA and (UK + reserve fund) (paragraph 1, clause 4, article 18 of the Law on LLC ). However, in practice, in the absence of a calculation of net assets, registration is denied, since the tax authorities confuse the increase in the Criminal Code under Article 18 of the Law "On LLC" with Article 19 (Position 9 of the AAS dated May 27, 2011 No. 09 AP-10120 / 2011-AK).

Based on the results of state registration and (or) amendments to the Unified State Register of Legal Entities, the tax authorities will issue two certificates to the LLC on making an entry in the Unified State Register of Legal Entities in the form No. P50003.

To summarize information on the state and movement of the authorized capital, account 80 “Authorized capital” is intended (chart of accounts, approved by order of the Ministry of Finance of Russia dated October 31, 2000 No. 94n). The amount of retained earnings is reflected on account 84 "Retained earnings". Note that the balance of account 80 must correspond to the size of the authorized capital, fixed in the company's constituent documents. Entries on this account are made only after the necessary changes are made to the constituent documents.

The general meeting of participants of the LLC decided to increase the authorized capital of the company at the expense of retained earnings in 2012 in the amount of 55,000 rubles. The following entries will be made in the accounting of the company:

At the end of 2012:

DEBIT 99 CREDIT 84 - reflects retained earnings of the reporting year.

As of the date of state registration of changes:

DEBIT 84 CREDIT 80 - in the amount of 55,000 rubles.

55 000 rub. — the authorized capital was increased at the expense of retained earnings.

In the accounting of the founder of an LLC (legal entity), an increase in the nominal value of a share in the authorized capital at the expense of the company's property is not a basis for changing the initial value, since this does not lead to an increase in the cost of its acquisition. Consequently, the initial cost of the share recorded on account 58 “Financial investments”, subaccount 58-1 “Shares and shares”, does not change (clauses 8, 18 of PBU 19/02).

According to the controllers, the amount by which the par value of the share has increased is recognized as income of the participant.

Therefore, if the organization - the founder of an LLC will be guided by a safe option and recognizes income in tax accounting in the form of the difference between the nominal value of the share before and after the increase in the authorized capital, then in accounting (clauses 4, 7 PBU 18/02, approved by order of the Ministry of Finance of Russia dated 11/19/2002 No. 114n) it reflects a constant difference and the corresponding constant tax liability (PNO).

PNO is reflected in the accounting entry:

DEBIT 99 CREDIT 68 - PNO is reflected in the amount of 20% of the difference between the nominal value of the share before and after the increase

Increase in the authorized capital in joint-stock companies

The authorized capital of a joint-stock company can be increased at the expense of retained earnings of previous years by (clause 1, article 28 of the JSC Law):

Increase in the par value of shares;

Placement of additional shares.

As a result of the implementation of the first method, the placement of shares is carried out through their conversion. In this case, the shares of the previous issue are redeemed, and the shareholder acquires shares of a new issue with a different nominal value. As a result of the increase in the authorized capital through the second method, new shares become the property of the shareholder. In both cases, the competent body for making a decision on increasing the authorized capital is the general meeting of shareholders or the board of directors.

In contrast to the increase in the authorized capital of an LLC, a similar process for joint-stock companies is complicated by the need to issue shares. In this regard, the inspectorate performs state registration of changes in the company's charter only if a report on the results of the issue of securities registered by the FFMS is submitted.

The procedure for increasing the authorized capital takes place in the following order:

1. Deciding to increase the authorized capital at the expense of retained earnings of previous years by increasing the par value of shares or by placing additional shares.

In the event of an increase in the authorized capital, it is not required to submit the issue of amending the charter for consideration by the general meeting of shareholders (clauses 1, 2, article 12 of the JSC Law). These functions are performed by the decision to increase the authorized capital and the registered report on the results of the issue of securities. In addition, the decision to increase is at the same time a decision to place securities, so it must contain all the main parameters of the shares and the details of their placement. The content of the decision must comply not only with the requirements of the JSC Law, but also with the norms of the Law on the Securities Market (Federal Law No. 39-FZ of April 22, 1996) and emission standards (order of the Federal Service for financial markets dated January 25, 2007 No. 07-4 / pz-n).

2. Approval of the decision to issue securities.

In fact, the text of the decision on the issue of securities repeats the content of the decision on the placement of shares with some additions. Statement this decision refers to the competence of the board of directors or the body that performs its functions in accordance with the charter of the company.

3. Passage of the procedure for state registration of the issue of securities.

To do this, the issuer submits an application to the FFMS, which is accompanied by an approved decision on the issue of shares, a decision on the placement and other documents provided for by the Law on the Securities Market and the Issue Standards, including the calculation of net assets and a description of the property at the expense of which the authorized capital is increased. capital. Subject to compliance with the requirements of the legislation, the FFMS carries out state registration of the issue of securities with the assignment of an individual number to it, and the issuer is issued a notice of registration of the issue of securities.

4. Placement of shares.

It occurs by making entries on personal accounts in the register of shareholders. Such entries shall be made on the day specified in the registered resolution on the issue of securities.

5. Passage of the procedure of state registration of the report on the placement of shares.

To complete the issue, the issuer submits to the FFMS an application for state registration of a report on the placement of securities, the report itself, approved by the competent authority of the JSC, and other documents confirming compliance with the requirements of securities legislation. This stage ends with the registration of a report on the results of placement of securities.

6. Passage of the procedure for state registration of a new version of the charter (changes to the charter).

It practically duplicates the procedure for registering changes for an LLC. Except for the fact that joint-stock companies need to submit to the inspection a report on the results of the issue of securities, registered with the Federal Financial Markets Service. In addition, it should be noted that a joint-stock company submits to the tax authority that carries out state registration of legal entities, only an application for amendments to the constituent documents in the form P13001 (approved by the decree of the Government of the Russian Federation of June 19, 2002 No. 439).

The authorized capital of a JSC is equal to the par value of two hundred shares. The nominal value of one such share is 1000 rubles. JSC decided to increase the authorized capital at the expense of retained earnings by increasing the par value of each share by 500 rubles. As a result, the authorized capital will increase by 100,000 rubles. (200 pieces × 500 rubles).

After registration of changes in the authorized capital in accounting, the following entries are made:

DEBIT 84 CREDIT 80

100 000 rub. — an increase in the authorized capital due to retained earnings is reflected.

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

Accordingly, after making changes to the constituent documents, entries are also made in the analytical accounting on account 80, reflecting the change in the nominal value owned by shareholders shares.

The general meeting of shareholders of the joint-stock company decided to increase the authorized capital by issuing additional shares at the expense of retained earnings of previous years (100 shares of 100 rubles each). The authorized capital is increased by own funds firms, so shareholders do not pay for additional shares that are distributed among them.

Thus, at the date of the decision to place an additional issue of shares, the company does not make any entries in the accounting records. At the same time, based on the decision to increase the authorized capital, the following entries are made in accounting:

DEBIT 75-1 CREDIT 80

100 000 rub. — increase in the authorized capital due to additional placement of shares;

DEBIT 84 CREDIT 75-1

100 000 rub. — an increase in the nominal value of shares due to an increase in the authorized capital at the expense of retained earnings of the JSC.

personal income taxshareholders (participants)

According to the Ministry of Finance of Russia, (letters of the Ministry of Finance of Russia dated September 17, 2012 No. 03-04-06 / 4-281, dated February 27, 2012 No. 03-04-05 / 3-227, dated October 27, 2011 No. 03-04-06 / 4-287) the difference between the initial and new nominal value of shares (shares), as well as additionally received shares, is income and is subject to personal income tax. The financial department substantiates its position with the following arguments:

The Tax Code exempts from personal income tax only income received by shareholders (participants) in the form of additionally received shares (shares) or changes in their nominal value as a result of revaluation of fixed assets (clause 19, article 217 of the Tax Code of the Russian Federation). In support of this argument, the Ministry of Finance of Russia refers to the Ruling of the Constitutional Court of the Russian Federation (ruling of the Constitutional Court of the Russian Federation dated January 16, 2009 No. 81-О-О);

Despite the fact that the share of participation of each shareholder (participant) in the authorized capital remains the same, there is an increase in the total amount of property rights belonging to him, for example, rights to receive dividends, as well as the value of such property (shares) on a gratuitous basis;

In the event of an additional issue, the shareholder receives income in kind in the form of shares of the new issue. When the nominal value of shares increases, material benefits are obtained.

Let's analyze these arguments. According to the authors, it cannot be argued that in any other case, except for an increase in the authorized capital as a result of the revaluation of fixed assets, the shareholder (participant) of the company receives income. The conclusion about the presence of income can be given only on the basis of the application of the norms of the Tax Code in the aggregate. We note that the question of whether shareholders, in the event of an increase in the Criminal Code at the expense of retained earnings, have income for the purposes of taxing personal income tax was not considered in the said Definition of the Constitutional Court of the Russian Federation. From the text of the Definition it follows only that the conditions for the effect of the benefit established by paragraph 19 of Article 217 of the Code are strictly defined and do not apply to the situation described in the complaint.

Let us turn to the second argument, that if the shareholder's percentage participation in the authorized capital of the company remains unchanged, an increase in the nominal value (number) of shares leads to an increase in the total volume of property rights. The Tax Code establishes that income is recognized as a benefit received in cash or in kind, which can be assessed (Article 41 of the Tax Code of the Russian Federation). However, as follows from the provisions of corporate law, the taxpayer does not receive any benefits in this particular situation, when the share of participation only increases. So, his right to receive dividends is in no way related to the nominal value (number) of his shares (shares), but depends only on the percentage of his participation in the authorized capital of the company, which does not change. The situation is similar in settlements with shareholders (participants) upon liquidation of the company: the remaining property is divided between them in proportion to their participation in the authorized capital. And in this case, the benefit will be the difference between the invested and received funds, regardless of the size of the share. Thus, the position of the Ministry of Finance of Russia on the increase in the volume of property rights at the time of the increase in the Criminal Code does not find regulatory confirmation. All these arguments have been repeatedly stated in judicial acts. arbitration courts who supported companies in disputes with tax authorities (FAS SZO dated April 23, 2008 No. A26-3819.2007, March 26, 2008 No. A66-5098 / 2007, FAS MO dated February 26, 2009 No. KA-A41 / 1046-09, FAS UO dated May 27, 2007 No. Ф09-3942/07-C2).

Guided by the provisions of corporate law, the courts associated the appearance of income not with the moment of an increase in the authorized capital, but with the sale of shares (shares), the receipt of the actual value of the share when a participant leaves the company, or the transfer of property of a liquidated company to shareholders (participants). However, after the appearance of the Definition of the Constitutional Court of the Russian Federation, the position of arbitration courts began to change (FAS SKO dated 02.12.2010 No. A32-38158 / 2009-51 / 646, FAS VSO dated 02.10. 2011 No. VAS-5515/11 refused to transfer this case to the Presidium of the Supreme Arbitration Court of the Russian Federation)). When considering these cases, the courts took the side of the controllers, but did not give any arguments to justify the position, limiting themselves to quoting the Definition of the Constitutional Court.

In our opinion, the initial approach of arbitration courts to assessing the moment of occurrence of income in more corresponds to the concept of income as an economic category.

Let us give an additional argument in support of this point of view, for which we will consider the consequences that the application of the position of the Ministry of Finance will lead to when taxing income from the sale of a share in the authorized capital of an LLC.

So, a member of the company has the right to reduce the amount of income received from the sale of a share in the authorized capital of the company by the amount of documented expenses for the acquisition of property transferred in payment for the specified share in the authorized capital (paragraph 2, subparagraph 1, paragraph 1, article 220 of the Tax Code of the Russian Federation ). In the event of an increase in the authorized capital at the expense of retained earnings, a company participant does not bear any costs. Thus, the amount of the deduction will be limited to the documented cost of the costs of making the initial and additional contribution to the MC. As the Ministry of Finance of Russia points out (letter of the Ministry of Finance of Russia dated June 28, 2011 No. 03-04-05 / 3-452), the Tax Code does not provide for reducing the amount of income received from the sale of a share in the authorized capital of a company by the nominal value of such a share.

Following the approach declared by the financiers, the LLC participant will pay tax on the amount of the increase in the nominal value of the share twice: the first time - at the time of its increase, and the second time - at the time of the sale of the share. We believe that this is contrary to the principle of the inadmissibility of double taxation of the same income.

We foresee objections that, in contrast to the sale of a share in the authorized capital of an LLC, such a situation does not arise when shares are sold. Indeed, tax legislation (paragraph 8, clause 13, article 214.1 of the Tax Code of the Russian Federation) provides for the possibility of accounting for the amount of income that was previously taxed as part of the cost of acquiring securities. However, the mechanism laid down in this norm is used when income is received (the appearance of an object of taxation) at the stage preceding the sale of shares: at the time of acquisition of these shares. Therefore, we again return to the question of whether the taxpayer receives income in kind or in the form of material benefits from an additional issue or conversion of shares into shares with a higher par value as a result of an increase in the authorized capital of the organization from retained earnings. As shown above, there is no increase in the volume of property rights of shareholders, but new objects come into their ownership civil rights. Based on the wording of articles 211 and 212 of the Tax Code, the qualification of the consequences of these business transactions as income in kind or in the form of material benefits is possible in cases of certain “savings” on costs or gratuitous receipt of property. From an economic point of view, retained earnings represent the potential return to the shareholder, which can be received in the form of dividends. When deciding to increase the authorized capital at the expense of retained earnings, the shareholder thereby refuses to receive income, reducing his property area. This situation is fundamentally different from the classic examples of gratuitous receipt of property, which are donations and inheritances. In connection with these circumstances, the assessment of such an operation as gratuitous or made with savings seems to be very doubtful.

Income tax for companies

The income of shareholders in the form of an increase in the nominal value of shares or received in the form of the value of additional shares is not taken into account when determining the base for income tax (subclause 15, article 251 of the Tax Code of the Russian Federation). Consequently, with an increase in the authorized capital at the expense of retained earnings, the shareholder company does not have tax consequences (letters of the Ministry of Finance of Russia dated October 24, 2011 No. 03-03-06/1/685, dated September 4, 2009 No. ).

At the same time, the financial department believes that the rules on exemption apply only to shareholders, while organizations participating in an LLC, under similar circumstances, receive non-operating income taxed at a rate of 20 percent (letters of the Ministry of Finance of Russia dated 09.11.2011 No. 03-03-06 /1/732, dated September 26, 2011 No. 03-03-06/1/588).

This approach was critically assessed in the decision of the Federal Antimonopoly Service of the Volga District (FAS PO dated February 16, 2009 No. A65-11409 / 2006), which substantiated its position based on the principle of universality and equality of taxation and the prevention of differentiation depending on the legal form ( Parts 1, 2, Article 3 of the Tax Code of the Russian Federation). Additionally, we note that following such instructions from the Ministry of Finance of Russia will lead to double taxation of an increase in the nominal value of a share during its subsequent sale, which is a violation of the principles of fair and proportionate taxation.

Such contradictions confirm the complexity and diversity of issues related to the increase in authorized capital at the expense of retained earnings, so it is better for a company to think over its possible steps in advance and be ready to defend its interests.

Expertise of the article: Alexey Alexandrov, legal consulting service Garant, legal adviser; Dmitry Ignatiev, Garant Legal Consulting Service, Ph.D. n.

Chapter 2. Operations with authorized capital

Perhaps this is one of the main points in the relationship between the founder and the company being created. Indeed, the subsequent receipt of income depends entirely on how the property contributed by him to the authorized capital of the company will be evaluated. The larger the share, the greater part of the profit will be paid to the owner of this share. Therefore, on correct assessment of the contribution made and its coordination with the rest of the founders of the company, the future owners of the company should pay special attention.

The easiest way, of course, is to contribute money to the authorized capital. But wouldn't it be necessary to apply KKM in this case? Weird question? However, for example, the Presidium of the Supreme Arbitration Court of the Russian Federation in its resolution of August 8, 2005 N 12126/04 came to the conclusion that KKM should be used by organizations that accept scrap metal from the population. Absurd? No, harsh reality. So the question is not so strange.

If fixed assets or securities are brought in, then who and how should evaluate them?

And if the founder did not fully pay his share? What is waiting for him?

Is it possible to make additional contributions to the authorized capital - after it has been formed? Is it possible to increase your share at the expense of retained earnings of the company? And if so, will you have to pay additional taxes?

As you can see, there are a lot of questions. Well, let's try to answer them.

2.1. Formation of the authorized capital

In accordance with paragraph 1 of Article 14 of the Federal Law of February 8, 1998 N 14-FZ "On Limited Liability Companies" (hereinafter - Law N 14-FZ), the size of the authorized capital of the company and the nominal value of the shares of the company's participants are determined in rubles. And only deposits foreign investors may be carried out in foreign currencies. Although in this case, according to Article 6 of the Federal Law of July 9, 1999 N 160-FZ "On Foreign Investments in the Russian Federation", capital investments are assessed in Russian currency.

Currency transactions between residents, which include the payment by the founder of his share in the authorized capital of the company, are prohibited. This is strictly stated in Article 10 of the Federal Law of December 10, 2003 N 173-FZ "On currency regulation and currency control".

By the way, we recall that in accordance with Law N 14-FZ, the size of the authorized capital of a limited liability company must be at least 100 minimum wages (minimum wage) on the date of submission of documents for state registration.

2.1.1. Depositing funds

The contribution of money to the authorized capital is carried out to the settlement account or to the cash desk of the organization. The receipt of cash contributions of the founders to the cash desk of the company must be formalized by a cash receipt order.

Making by the founder of his contribution to the authorized capital of the company with money is the easiest way to pay for the share in terms of registration. But in order to figure out whether it is necessary to use KKM during this operation, it is necessary to determine what “paying a share” means in the legal sense. Does the property received from the founders pass into the ownership of the company? Does the company sell a share in its authorized capital to the founder?

The authorized capital of a limited liability company (LLC) consists of the nominal value of the contributions of its participants. This is stated in paragraph 1 of Article 90 of the Civil Code of the Russian Federation and paragraph 1 of Article 14 of Law No. 14-FZ. By itself, the authorized capital is not the property of the company, but the source of the formation of the property that will belong to this company on the basis of ownership - paragraph 1 of Article 66 of the Civil Code of the Russian Federation.

As follows from paragraph 2 of Article 48 of the Civil Code of the Russian Federation and the provisions of Articles 2, 8, 9 and 14 of Law No. 14-FZ, specific shares in the authorized capital of the company belong to its participants. They have obligations in relation to this society and obligations associated with participation in it. If we translate the above into Russian, this means that a specific share in the authorized capital belongs to a specific founder, and not to a company. After all, society itself cannot have the rights and obligations of a participant in relation to itself. Consequently, it cannot have the right of ownership either to its authorized capital or to a share in it. This follows from paragraph 1 of Article 23 of Law N 14-FZ.

The share (or part of the share) of a company participant may be transferred to the company only on the grounds established by law. But even such a transition does not entail the emergence of the rights and obligations of a participant in the society. This follows from subparagraphs 2-6 of Article 23 and Article 24 of Law No. 14-FZ. Moreover, such a share within 1 year from the date of its transfer to the company must be distributed among all participants in the company or sold to all or some of the participants in the company or even to third parties. And if this is not possible, then the share in question must be repaid with a corresponding decrease in the authorized capital - paragraph 2 of Article 24 of Law N 14-FZ.

From the foregoing, it follows that making a contribution to the authorized capital of a company, as well as payment by a company participant (or a third party) of a share transferred to the company on the grounds established by law, cannot be regarded as a sale by the company of a share in the authorized capital:

there is no transfer of the right to a share from the company to the participant - after all, it does not belong to the company;

the rights and obligations of a member of the company arise directly from the person who contributed to the authorized capital;

KKM is applied on the territory of Russia without fail by all organizations and individual entrepreneurs, while simultaneously fulfilling two conditions:

When making cash settlements or settlements using payment cards;

When selling goods, performing work or providing services.

This follows from Article 2 of the Federal Law of May 22, 2003 N 54-FZ “On the Application cash register equipment when making cash settlements and (or) settlements using payment cards.

The definition of the contract of sale is contained in paragraph 1 of Article 454 of the Civil Code of the Russian Federation. It says that under a contract of sale, one party (the seller) undertakes to transfer the thing (goods) into the ownership of the other party (the buyer), and the buyer undertakes to accept this goods and pay a certain amount of money (price) for it.

From all of the above, it follows that since no sale and purchase occurs when the founder makes a contribution to the authorized capital, then there is no need to use cash registers in the implementation of such operations.

The contribution of a cash contribution by a member of the company to a current account in a bank is formalized by an announcement. This document consists of three elements: announcements, receipts and receipt order. The entries in each part are identical to the rest. It is mandatory to indicate the basis for the contribution of money to an authorized bank - “Contribution to the authorized capital”.

2.1.2. Contribution of fixed assets, materials and intangible assets

If the founder has no money, but has some valuable property, then they can pay their share in the formed authorized capital of the company. You can also offer property rights as a contribution. However, in both cases, the procedure for processing such operations is much more complicated than when depositing money.

When paying for the share of the founder with property, several steps should be taken:

determine the rights to the property;

document the contributions of participants to the authorized capital of the company;

establish the procedure for expert evaluation of objects contributed as payment for the share of the founder.

Let's start with the last one. An expert assessment of the property made as a contribution will be mandatory if the nominal value of the non-monetary contribution exceeds 200 minimum wages established by Russian legislation. The minimum wage for calculation is taken on the date of submission of documents for state registration of the company. This rule is established by paragraph 2 of Article 15 of Law N 14-FZ.

Thus, since at present the minimum wage for such calculations is 100 rubles, the need for an expert appears when the nominal value of a non-monetary contribution exceeds 20,000 rubles.

Please note, by the way, that in case of making non-monetary contributions, the participants of the company and an independent appraiser within 3 years from the date of state registration of the company, if the property of the company is insufficient, jointly and severally bear subsidiary liability for its obligations in the amount of overestimation of the value of non-monetary contributions. What does this mean? This means that if the appraiser makes an incorrect assessment of the property contributed to the authorized capital of the company, then later, in which case, he will have to answer for the debts of this company.

With subsidiary liability of debtors, the creditor must first, in fact, present a claim against the principal debtor. And if only he refuses to satisfy this requirement, then it can be brought against the person bearing subsidiary liability. In our case, it will be an unscrupulous (or incompetent) expert.

When paying for a share by the founder, a difficult situation is possible when the right to use property is offered in payment for the share. According to Law N 14-FZ, such an option for paying a share is possible. However, it may happen that the term of the right to use property (for example, the term of the lease agreement) may end earlier than the period for which the company expected, accepting such a right as payment for its authorized capital. Law N 14-FZ provided for such a turn of events. In this case, the participant of the company who transferred the property is obliged to provide the company, at its request monetary compensation, equal to the payment for the use of the same property and on similar terms for the remaining "unworked" period.

Compensation in the form of money must be provided at a time and within a reasonable time from the moment the company submits a claim for its provision. However, the company may establish a different procedure for providing compensation. Then it should be spelled out in the decision of the general meeting of participants in the company. And pay attention: the "culprit" of the situation that has arisen does not participate in the vote.

Thus, the founders must provide possible development events on this problem and document in advance the procedure for resolving this situation.

In accounting, settlements with the founders of the company for both cash and property contributions are reflected using account 75 “Settlements with the founders”. Moreover, the sub-account "Settlements on contributions to the authorized (share) capital" is used.

The debit of this sub-account shows the occurrence of indebtedness of the founders to the company on contributions to the authorized capital. For a loan - the amount of repaid receivables equal to the value of contributions actually made by the founders.

Note!

At the time of registration of a limited liability company, its authorized capital must be paid up by at least 50%. This is a requirement of paragraph 2 of Article 16 of Law N 14-FZ.

The occurrence of debts of the founders on contributions to the authorized capital is reflected by the entry:

Debit 75 Credit 80.

The data for this posting should be taken from the charter and memorandum of association of the company being created. The balance of account 80 must correspond to the size of the authorized capital, fixed in the constituent documents of the company.

If the founder paid his contribution in cash, then this is reflected in one posting:

Debit 50 (51) Credit 75.

It is more difficult to record the contribution of non-monetary assets in accounting.

Deposit of fixed assets

The assessment of fixed assets contributed as a contribution to the authorized capital is carried out in accordance with PBU 6/01 "Accounting for fixed assets", approved by order of the Ministry of Finance of Russia dated March 30, 2001 N 26n:

first, the compliance of the incoming property with the definition of fixed assets as accounting objects is checked;

then the initial cost of the fixed asset is formed depending on the source of its receipt.

When fixed assets are contributed to the authorized capital, their initial cost, in accordance with paragraph 9 of the above PBU 6/01, is recognized as a monetary value agreed by the founders of the company. In this case, the initial cost of the fixed asset includes the costs associated with the registration of rights to this object, delivery and bringing it to working condition.

In accounting, to summarize information about the costs of the organization, which will subsequently be taken into account as fixed assets, account 08 “Investments in non-current assets” is used. Therefore, account 75 "Settlements with founders" will correspond with him, and not directly with account 01 "Fixed assets".

The authorized capital of Tavria LLC is registered in the amount of 160,000 rubles. The founder Petrov made a car as a contribution to the authorized capital. According to peer review independent appraiser, market value car is 80,000 rubles.

Debit 75 Credit 80

RUB 160,000 - reflected in the accounting registered authorized capital of the company and the debt of the founders to pay their shares;

Debit 08 Credit 75

80 000 rub. - reflects the cost of the car contributed by Petrov as payment for his share;

Debit 01 Credit 08

80 000 rub. - the property contributed by Petrov is included in the company's fixed assets.

The transfer of fixed assets contributed by the founders on account of their contribution to the authorized capital must be drawn up by one of the following documents:

"Act on the acceptance and transfer of fixed assets (except for buildings, structures)" in the form N OS-1;

"Act on the acceptance and transfer of the building (structure)" in the form N OS-1;

"Act on the acceptance and transfer of groups of fixed assets (except for buildings, structures)" in the form N OS-1b.

For fixed assets contributed by the founders as a contribution to the authorized capital, depreciation is charged in accounting. Its amount is included in the cost of products that are manufactured through the use of these objects.

Entering inventories

Assume that the firm has received fixed assets. Now you need to take care to get the raw materials or material that these fixed assets will process. Of course, they can be bought for money if they were contributed by one of the founders in payment for their share. But the founder of the company can also contribute directly to these same materials or raw materials in payment for his share.

The procedure for accounting for operations to form authorized capital when participants contribute as a contribution to inventories is regulated by PBU 5/01 “Accounting for inventories”, approved by order of the Ministry of Finance of Russia dated June 9, 2001 N 44n.

According to paragraph 2 of this PBU 5/01, the following assets are accepted as inventories in accounting:

used as raw materials, materials and the like in the production of products, performance of work, provision of services;

originally intended for sale;

used for the management needs of the organization.

The cost of inventories, which are contributed by the founder as a contribution to the authorized capital of the company, is determined based on their monetary value, agreed among themselves by all the founders of the company. The transfer of the introduced raw materials or materials to the company must be formalized by the appropriate acceptance certificate. To do this, you can use the Act on the acceptance of materials in the form N M-7, which was adopted by the Decree of the State Statistics Committee of the Russian Federation of October 30, 1997 N 71a “On Approval unified forms primary accounting documentation accounting for labor and its payment, fixed assets and intangible assets, materials, low-value and wearing items, work in capital construction».

The chart of accounts for accounting for raw materials and materials, as well as fuels and lubricants, spare parts, etc., owned by the company, is account 10 “Materials”.

Costs that may be additionally included in the actual cost of inventories contributed as a contribution to the authorized capital are defined in paragraph 11 of PBU 5/01 "Accounting for inventories". These include:

the actual cost of delivering and bringing said inventory to a condition suitable for industrial use;

customs duties;

insurance costs;

the cost of maintaining the procurement and storage division of the company;

payment for transport services for the delivery of these reserves to the place of their use, if they are not included in the price of raw materials or materials established by the contract;

labor costs, sorting, packaging and improvement specifications received stocks not related to the production of products, performance of work or provision of services.

Due to the fact that inventories can be accounted for on account 10 in two ways - at the actual cost of their acquisition or at discount prices - the repayment of the founder's debt by adding raw materials or materials can also be taken into account in two ways. different ways.

If it is decided to take into account raw materials or materials on account 10 immediately at the actual cost, then the posting is made:

Debit 10 Credit 75.

Debit 10 Credit 76.

The authorized capital of Tavria LLC is registered in the amount of 160,000 rubles. Founder Ivanov made timber as a contribution to the authorized capital. According to an expert assessment by an independent appraiser, the market value of these materials is 24,000 rubles. The company paid 3000 rubles for the delivery of these materials to the rented warehouse.

The following entries were made in the accounting records of the company:

Debit 75 Credit 80

RUB 160,000 - the registered authorized capital of the company and the debt of the founders for the payment of shares are reflected in the accounting;

Debit 10 Credit 75

24 000 rub. - reflects the property contributed by Ivanov as payment for his share;

Debit 10 Credit 76

3000 rub. - the cost of the brought timber products is increased by the cost of their delivery.

If it is decided that the company will reflect the cost of raw materials or materials on account 10 at accounting prices, then accounting becomes more complicated. In this case, you will have to use two additional accounts: 15 “Procurement and acquisition material assets” and 16 “Deviation in the value of material assets”.

The accounting price differs from the actual one in that it is set in advance, and the purchased raw materials or materials are reflected in account 10 only at this price, previously set by the company. This may be, for example, the planned cost of procurement, average purchase prices - the choice is up to the company. And all discrepancies between the actual costs and this accounting price are reflected in a separate account - account 16.

Upon receipt from the founder of raw materials or materials in the accounting of the company, they make the following entry:

Debit 15 Credit 75.

Then all other additional costs that may increase the cost of the input raw materials or materials will be taken into account by posting:

Debit 15 Credit 76.

Posting of materials is carried out at accounting prices:

Debit 10 Credit 15.

To reflect the difference between the actual cost of the materials received and the accounting prices, if the first is greater than the second, a posting is made:

Debit 16 Credit 15.

If the book price is greater than the actual cost, then the posting will be reversed:

Debit 15 Credit 16.

Subsequently, when raw materials or materials are used in production, all differences accumulated on account 16 will either increase the cost finished products, works or services, or vice versa - to reduce it.

The authorized capital of Timer LLC is registered in the amount of 200,000 rubles. The founder Karpov made flour as a contribution to the authorized capital. According to an expert assessment by an independent appraiser, the market value of flour is 45,000 rubles. The company paid 4,000 rubles for the delivery of these materials to the warehouse.

In the accounting of the company, all incoming materials are reflected at the accounting price. The received batch of flour at the established accounting price costs 40,000 rubles.

Therefore, in the accounting of the company it is necessary to make the following entries:

Debit 15 Credit 75

45 000 rub. - the debt of the founder Karpov on the contribution to the authorized capital has been repaid;

Debit 15 Credit 76

4000 rub. - reflects the cost of delivering flour to the warehouse;

Debit 10 Credit 15

40 000 rub. - flour is credited at the accounting price;

Debit 16 Credit 15

9000 rub. (45,000 + 4,000 - 40,000) - reflected the deviation of the actual cost of flour from its accounting price.

Subsequently, this batch of flour was written off for production:

Debit 20 Credit 10

40 000 rub. - written off the used flour at the accounting price;

Debit 20 Credit 16

9000 rub. - written off as an increase in the cost of the deviation of actual costs from the accounting price.

The founder can also contribute to the authorized capital and goods. Accounting for operations for the introduction of goods is similar to accounting for the introduction of inventory items. Only account 10 “Materials” should not be used, but account 41 “Goods”. Then the repayment of the founder's debt will be documented by posting:

Debit 41 Credit 75.

The authorized capital of Omsa LLC is registered in the amount of 150,000 rubles. The founder Baranov made ready-made garments as a contribution to the authorized capital. According to an expert assessment by an independent appraiser, the market value of these materials is 60,000 rubles.

The following entries were made in the accounting records of the company:

Debit 75 Credit 80

150 000 rub. - the registered authorized capital of the company and the debt of the founders for the payment of shares are reflected in the accounting;

Debit 41 Credit 75

60 000 rub. - reflects the property contributed by Baranov as payment for his share.

Contribution of intangible assets

We talked about the fact that a company can take into account the organizational expenses of the founder as intangible assets in the previous chapter.

However, it is clear that the matter is not limited to organizational expenses alone.

In accordance with paragraph 4 of PBU 14/2000 "Accounting for intangible assets", the following objects can be classified as intangible assets:

exclusive right the patent holder for an invention, industrial design, utility model;

the exclusive right of the owner to the trademark and service mark, appellation of origin of goods;

the exclusive right of the patent holder to selection achievements.

But at the same time, an intangible asset must necessarily satisfy all the signs listed in paragraph 3 of the same PBU:

the absence of a material-material (that is, physical) structure;

the possibility of identification (separation, separation) by the organization from other property;

use in the production of products in the performance of work or the provision of services or for the management needs of the organization;

use for a long time, that is, a useful life of more than 12 months or a normal operating cycle if it exceeds 12 months;

the organization does not intend the subsequent resale of this property;

the ability to bring economic benefits (income) to the organization in the future;

the availability of properly executed documents confirming the existence of the asset itself and the organization's exclusive right to the results of intellectual activity (patents, certificates, other titles of protection, an agreement on the assignment (acquisition) of a patent, trademark, etc.).

As it is easy to understand, intangible assets are basically objects of intellectual property. According to Article 138 of the Civil Code of the Russian Federation, intellectual property is the exclusive right of a citizen or legal entity to the results of intellectual activity and equivalent means of individualization of a legal entity, individualization of products, work and services performed.

However, intangible assets also include such a thing as goodwill. Goodwill is the difference between the purchase price of an organization and the balance sheet value of all of its assets and liabilities. You can contribute business reputation as payment for your share in the case when the founder transfers his enterprise in the form of a contribution. For example, he transfers his firm as a contribution to the newly formed society. And then, if the total value of the assets and liabilities of this contributed firm turns out to be less than the amount of the contribution recognized by the founders, and a difference is formed that should be recognized business reputation and classified as intangible assets.

Note!

Resolution No. 6/8 of the Plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated July 1, 1996, provided an explanation according to which the object of intellectual property itself cannot be a contribution to the charter capital of a business entity. Only the right to use such an object, transferred to the company in accordance with a license agreement, which must be registered in the manner prescribed by law, can be recognized as a contribution.

In the accounting of the company, the intangible assets contributed by the founder must be reflected at their original cost. As paragraph 9 of PBU 14/2000 “Accounting for intangible assets” says, their initial cost is determined based on the monetary value agreed upon by all the founders of the company.

To account for such objects, the Chart of Accounts provides for account 04 “Intangible Assets”. The receipt of intangible assets as a contribution to the authorized capital is reflected in accounting on the basis of the memorandum of association:

Debit 08 Credit 75.

Acceptance of intangible assets for accounting is carried out at the initial cost:

Debit 04 Credit 08

When placing an intangible asset on the balance sheet of the company, the accountant must fill out an accounting card for intangible assets in the form N NMA-1, approved by resolution Goskomstat of Russia dated October 30, 1997 N 71a. In this card it is necessary to indicate all the main indicators and characteristics of the object being registered.

The cost of intangible assets is transferred to the expenses of the enterprise by depreciation. The allowed methods of calculating depreciation are listed in paragraph 15 of PBU 14/2000 "Accounting for intangible assets":

linear way;

reducing balance method;

a method of writing off the cost in proportion to the volume of products or work.

The application of one of the methods for a group of homogeneous intangible assets is carried out during their entire useful life.

The useful life in this case is determined by the company when accepting an intangible asset for accounting based on:

from the term of the patent, certificate and other restrictions on the terms of use of intellectual property objects in accordance with the legislation of the Russian Federation;

of the expected life of the asset, during which the entity can receive economic benefits or income.

If the company uses the method of writing off the value of an intangible asset in proportion to the volume of products or work, then the useful life of such an object depends on how much product or work can be obtained or performed with its help.

There are also intangible assets for which it is impossible to determine the useful life. Then this period is taken equal to 20 years (but, of course, no more than the period of the company itself). Let us immediately draw the attention of readers to the fact that for the purposes of tax accounting for the same intangible assets, the useful life is set within 10 years (and also no more than the period of activity of the taxpayer). This is spelled out in paragraph 2 of Article 258 of the Tax Code of the Russian Federation.

It is clear that the depreciation amounts for such assets in the accounting and tax records will be different. Because of this, the accountant will have to consider temporary differences and reflect them with the corresponding accounting entries in accordance with the rules of PBU 18/02 “Accounting for income tax calculations”.

The authorized capital of Omega LLC is registered in the amount of 300,000 rubles.

Usov, the founder, contributed the right to use the software product as a contribution to the authorized capital. Founder Matveev - the right to use the trademark. Founder Polyakov - the right to use the invention.

The founders agreed among themselves the value of intangible assets and their useful life:

the right to use the software product - 30,000 rubles, useful life - 4 years;

the right to use a trademark - 60,000 rubles;

the right to use the invention - 100,000 rubles.

The last two assets did not have an agreed useful life.

The following entries were made in the accounting records of the company:

Debit 75 Credit 80

300 000 rub. - reflects the size of the authorized capital of the company after its registration;

Debit 08 Credit 75

30 000 rub. - reflects the contribution of an intangible asset by the founder Usov;

Debit 08 Credit 75

60 000 rub. - reflected the introduction of an intangible asset by the founder Matveev;

Debit 08 Credit 75

100 000 rub. - reflects the contribution of an intangible asset by the founder Polyakov;

Debit 04 Credit 08

RUB 190,000 - received intangible assets are put on the balance sheet of the company.

Depreciation deductions from the right to use the software product will be calculated based on the useful life of its use, that is, 4 years. Depreciation of the right to use a trademark and an invention is calculated on a 20-year basis, since their useful life is not established.

The amount of depreciation deductions in the accounting of the company will be monthly reflected in the entries:

Debit 26 Credit 05

625 rub. (30,000 rubles: 4 years: 12 months) - depreciation of the right to use the software product was accrued;

Debit 26 Credit 05

250 rub. (60,000 rubles: 20 years: 12 months) - depreciation of the right to use the trademark was accrued;

Debit 26 Credit 05

417 rub. (100,000 rubles: 20 years: 12 months) - depreciation of the right to use the invention was accrued.

In tax accounting, the monthly depreciation of the right to use a trademark will be 500 rubles. (60,000 rubles: 10 years: 12 months), and the rights to use the invention - 833 rubles. (100,000 rubles: 10 years: 12 months).

Due to the fact that in tax and accounting depreciation amounts are different, monthly temporary differences arise. In accounting, it becomes necessary to reflect the deferred tax liability:

60 rub. ((500 rubles - 250 rubles) x 24%) - reflects the deferred tax liability for the trademark;

Debit 68 subaccount "Calculations for income tax" Credit 77

100 rub. ((833 rubles - 417 rubles) x 24%) - reflects the deferred tax liability for the invention.

As for the tax accounting of assets, we note that, according to paragraph 3 of Article 39 of the Tax Code of the Russian Federation, the transfer of property is not recognized as a sale if it is of an investment nature. This definition includes the transfer of property to the authorized capital of a business entity.

That is why, in accordance with subparagraph 3 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation, income in the form of property or property rights having a monetary value, which are received in the form of contributions to the authorized capital of an organization, are classified as income that is not taken into account when determining the tax base for tax on profit. In other words, such assets are not subject to income tax.

There is no need to charge VAT. According to article 146 of the Tax Code of the Russian Federation, the funds of the founders contributed to the authorized capital are not subject to VAT. Therefore, it is not necessary to issue an invoice, as well as allocate VAT in documents for the transfer of values.

2.1.3. Entering receivables and securities.

Receivables

Let us draw the attention of readers to another, not so common way of repaying the debt of the founder for contributions to the authorized capital of the company. This is the introduction of accounts receivable (funds in settlements). Such an operation is called an assignment of the right to claim and is regulated by Chapter 24 of the Civil Code of the Russian Federation “Change of persons in obligation”.

The founder has the right to transfer to the authorized capital of the company the debt that any organization or entrepreneur has before him. Paragraph 2 of Article 382 of the Civil Code of the Russian Federation establishes that the consent of the debtor is not required for the transfer to another person of the rights of a creditor, unless otherwise provided by law or an agreement. However, the debtor must be promptly notified of the transfer of his debt. If he is not notified in writing about the transfer of the rights of his original creditor to another person, then the new creditor (in this case, the company) bears the risk of acquiring adverse consequences. After all, the debtor can fulfill the obligation to the original creditor, and this will be considered proper performance.

The right of the founder to this debt, unless otherwise provided by law or contract, will pass to the company in the volume and on the conditions that existed at the time of transfer of the right. The founder, who has ceded the claim to his firm, is obliged to transfer to it the documents certifying the right to claim, and to provide information relevant to the implementation of this claim.

Of course, the transfer of receivables as a contribution to the authorized capital can only occur with the consent of the other founders of the company. At the same time, the amount of receivables accepted as a contribution must be agreed between them. After all, much here depends on how realistic it is to receive the amount of such debt and in what amount.

Please note that if this debt was formed as a result of the sale of goods, works or services, then after the founder transfers this receivable as a contribution, his goods, works or services will be considered paid. The fact is that the buyer's debt to the "old" creditor is terminated. Now he will owe a new creditor.

In accordance with paragraph 3 of PBU 19/02 "Accounting for financial investments", approved by order of the Ministry of Finance of Russia dated December 10, 2002 N 126n, receivables, acquired on the basis of the assignment of the right to claim, refers to the financial investments of the organization. True, only subject to the one-time compliance with all the conditions listed in paragraph 2 of the same PBU:

the presence of properly executed documents confirming the existence of the organization's right to financial investments and to receive money (or other assets) arising from this right;

transition to the organization of all risks associated with this financial investment: the risk of price changes, the risk of the debtor's insolvency, liquidity risk, etc.;

the ability to generate future economic benefits or revenue for the organization.

Based on paragraph 8 of PBU 19/02 “Accounting for financial investments”, the receivables transferred by the founder as payment for their share should be valued at the contractual value. The acquisition by the firm of someone else's debt should be reflected in the debit of account 58 "Financial investments". To do this, you can use a separate sub-account.

If later the receivables are repaid by the debtor in an amount greater than the founder's contribution was recognized, then the company generates operating income. This follows from paragraph 34 of PBU 19/02 “Accounting for financial investments”. Therefore, such income will be reflected in the accounting of the company using account 91 “Other income and expenses”. And if, on the contrary, for one reason or another, the debt is not repaid, then the company will have non-operating expenses.

Since the assignment of the right to claim in the case under consideration is an investment for the founder, neither income tax nor VAT are present in this business transaction. Thus, the situation here is absolutely similar to the contribution of fixed assets, materials, intangible assets and similar assets.

The authorized capital of LLC "Terra" is registered in the amount of 200,000 rubles. The founder Eliseev, as a contribution to the authorized capital of the company, made the right to claim against Phoenix LLC in the amount of 100,000 rubles. According to the agreement between the founders, the cost of this contribution, taking into account the risk of not receiving the full amount of the debt, is assumed to be 80,000 rubles.

The following entries were made in the accounting records of the company:

Debit 58 Credit 75

80 000 rub. - accepted from the founder Eliseev in payment for his share the right to claim against Phoenix LLC.

After presenting a demand for payment to Phoenix LLC, it paid its debt in full size, that is, in the amount of 100,000 rubles. In this regard, the following entries must be made in accounting:

Debit 76 Credit 91

100000 rub. - reflects the debt of LLC "Phoenix" to the company;

Debit 51 Credit 76

100000 rub. - received money from LLC "Phoenix" in payment of the debt;

Debit 91 Credit 58

80 000 rub. - the book value of the claim has been written off.

Securities

Much more often, in the form of payment by the founder of his share, the company can receive any securities, for example, a bill.

As we already know, the monetary value of non-monetary contributions to the authorized capital of the company is approved by the decision of the general meeting of the company's participants, adopted by all participants of the company unanimously. If the share of a member of the company, which he pays with a security, exceeds 200 minimum wages, then an independent appraiser will have to be invited to evaluate the security. Its valuation is decisive - the nominal value of the share of the company's member, paid by the security, cannot exceed the amount of this valuation. This rule is fixed in paragraph 2 of Article 15 of Law N 14-FZ.

In other words, the participant, if agreed, can be credited towards the payment of his share by an amount that is less than the expert's estimate. But the opposite can not be done - the law forbids it.

Based on the requirements of paragraphs 2 and 3 of PBU 19/02 “Accounting for financial investments”, the security received as a contribution is accepted by the company as part of financial investments. The date of acceptance for accounting depends on the moment when the rights under this security pass to the firm.

For example, rights under a bill are transferred by making an endorsement on it - an endorsement. An endorsement made on a security transfers all the rights certified by the security to the person to whom the security is transferred. This is what paragraph 3 of Article 146 of the Civil Code of the Russian Federation says.

It follows from paragraph 8 of PBU 19/02 “Accounting for financial investments” that securities should be accepted for accounting at their original cost. At the same time, the initial cost when investing securities in the authorized capital means the monetary value of such a contribution, agreed between the founders. This is spelled out in paragraph 12 of PBU 19/02 “Accounting for financial investments”.

After resolving the issue of valuation of the security and the moment the rights on it are transferred to the company, the following entry should be made in the accounting of the company:

Debit 58 Credit 75.

And the debt of the founder to the company will be repaid.

But the acceptance of securities as a contribution has one serious feature. As a rule, interest income is accrued on securities. Interest on securities owned by the firm is operating income for it and is recognized in accounting when the organization has the right to receive them. This follows from paragraphs 7, 12 and 16 of PBU 9/99 "Income of the organization". The right to receive interest will need to be reflected in the accounting posting:

Debit 76 Credit 91

Depending on the type of security and the terms of its issue, interest can be paid both during the life of the security and as a lump sum when it is redeemed. Depending on this, the recognition of the right to receive interest will be reflected in the accounting of the company at different times.

But in tax accounting, a different procedure is provided.

Interest received on securities and other debt obligations is non-operating income on the basis of paragraph 6 of Article 250 of the Tax Code of the Russian Federation. A separate procedure for maintaining tax records of income in the form of interest received on securities is prescribed in Article 328 of the Tax Code of the Russian Federation. It says that the amount of income in the form of interest should be taken into account based on the established yield of the security and its validity period in the reporting period at the date of recognition of income, determined in accordance with Articles 271-273 of the Tax Code of the Russian Federation. Clause 6 of Article 271 of the Tax Code of the Russian Federation states that for debt obligations (including securities), the validity of which falls on more than 1 reporting period, for the purpose of calculating income tax, income is recognized as received and included in non-operating income at the end of the corresponding reporting period. period. If the debt obligation is repaid before the end of the reporting period, the income is recognized as received and included in the relevant income as of the date of repayment of the debt obligation.

Then it turns out that even if in accounting the interest income on a security is recognized at the time of its redemption, then in tax accounting this income must be reflected at the end of each reporting period - for the first quarter, six months, 9 months. Due to the difference in the time of recognition of income in the two types of accounting, temporary differences will appear in accounting and it will be necessary to start up the input PBU 18/02 “Accounting for income tax settlements”.

As a contribution to the authorized capital of Pallada LLC, the founder Trofimov made a promissory note with a nominal value of 50,000 rubles. This promissory note has a yield of 20% per annum subject to payment of interest at the time of repayment of the promissory note.

In accordance with the expert assessment and the general decision of the founders of the company, the bill was accepted as payment for its share by the founder Trofimov at face value, that is, at a cost of 50,000 rubles.

The company conducts tax accounting on an accrual basis.

Thus, the amount of income recognized for profit tax purposes in the II quarter of 2005 amounted to 1808 rubles. x (50,000 rubles x 20%: 365 days x 66 days). In the III quarter - 2521 rubles. (50,000 rubles x 20%: 365 days x 92 days). In the IV quarter - 1671 rubles. (50,000 rubles x 20%: 365 days x 61 days).

In the accounting of Pallada LLC, the following entries must be made.

In April 2005:

Debit 58 Credit 75

50 000 rub. - reflected the receipt of a bill as a contribution to the authorized capital.

In June 2005:

Debit 09 Credit 68 sub-account "Calculations for income tax"

434 rub. (1808 rubles x 24%) - the occurrence of a deferred tax asset due to the difference in the time of recognition of interest on a bill is reflected.

In September 2005:

Debit 09 Credit 68 "Calculations for income tax"

605 rub. (2521 rubles x 24%) - reflects the occurrence of a deferred tax asset due to the difference in time for recognizing interest on a bill.

In November 2005:

Debit 76 Credit 58

50 000 rub. - the bill is presented for redemption;

Debit 76 Credit 91

6000 rub. (1808 + 2521 + 1671) - reflected the right to receive interest on the redeemed bill;

Debit 68 subaccount "Calculations for income tax" Credit 09

1039 rub. (434 + 605) - deferred tax asset repaid.

If the company calculates income tax on a cash basis, then it can recognize income in the form of interest when it actually receives it. This follows from paragraph 2 of Article 273 of the Tax Code of the Russian Federation.

2.1.4. Entering the right to use property

Sometimes, as payment for the contribution, the founder transfers the right to use his property to the company. This means that it allows the public to use some object belonging to it - a building, a car or a machine - for a certain time. In fact, the new company receives the founder's property for rent, recognizing this as his share in its authorized capital. Civil Code RF provides for such a possibility.

However, using a fixed asset owned by the founder, the company does not receive any real asset ownership. Nevertheless, the operation of this facility brings income to the enterprise. Consequently, the cost of the acquired right should also form the cost of production.

enough a large number specialists, in accounting, the right to use property received as a contribution to the authorized capital at the time of its actual receipt can be recorded on account 97 “Deferred expenses” by posting:

Debit 97 Credit 75.

Subsequently, such expenses must be written off during the term of the agreement on the use of property to the debit of the accounts of accounting for production costs or sales costs as expenses for ordinary activities. This allows you to do paragraph 5 of PBU 10/99 "Expenses of the organization".

Things are much worse with regard to tax accounting. Subparagraph 1 of paragraph 1 of Article 277 of the Tax Code of the Russian Federation states that the organization does not have taxable profit when making settlements with its founders for payment of the authorized capital. But how to evaluate the right to use property received as a contribution is a big question.

On the one hand, this right could be valued at the nominal value of the founder's share. After all, the cost of a share is equal to the actual costs of obtaining this right. Thus, the value of the right to use property could, in theory, be recognized evenly for income tax purposes over the life of this right.

However, there is an official opinion of the tax authorities against such logic. Letter No. 26-12/33161 of the UMNS of Russia for Moscow dated May 14, 2004 says the following. For the purposes of tax accounting, property received as a contribution to the authorized capital should be accepted at the cost at which it was recorded in tax accounting by the transferring party. In this case, the value of the transferred property must be documented.

A problem arises: in the tax accounting of the transferring party there cannot be such an object as the right to use property. After all, it arises only at the moment when the founder transfers the right to use his property to the society. Since in this case the value of the right to use in the tax accounting of the transferring party is equal to zero, then for the newly created company the value of the contribution of this founder in tax accounting is also recognized as equal to zero. As a result, the receipt of property from the founder, to which the company will not have ownership, will not affect the amount of its taxable profit in any way - nothing can be written off as expenses.

If an organization agrees to follow the requirement of the tax authorities (after all, one does not always want to argue), then permanent differences will appear in its accounting, and this inevitably entails the appearance of permanent tax liabilities.

According to paragraph 7 of PBU 18/02 “Accounting for income tax settlements”, a permanent tax liability must be recognized by the company in the reporting period in which the permanent difference occurs. And its amount is determined as the product of the constant difference that arose in the reporting period and the income tax rate in force on the reporting date.

The newly created Tranzit LLC received from the founder Kovalev, as a contribution to the authorized capital, the right to lease a warehouse, of which he is the owner, for a period of 4 years. The assessment of the contribution agreed upon by the founders, based on an expert assessment, is 240,000 rubles.

The following entries must be made in the accounting of the company.

Debit 97 Credit 75

240 000 rub. - the right to use the warehouse is included in deferred expenses.

Monthly for 4 years:

Debit 26 Credit 97

5000 rub. (240,000 rubles: 4 years: 12 months) - the cost of the right to use the warehouse is partially included in general business expenses;

Debit 99 Credit 68 sub-account "Calculations for income tax"

1200 rub. (5000 rubles x 24%) - a permanent tax liability has been accrued.

Above, we have already talked about the position of the tax authorities, as set out in the letter of the Ministry of Taxation of Russia for the city of Moscow dated May 14, 2004 N 26-12 / 33161. Recall that for the purposes of tax accounting, they require property received as a contribution to the authorized capital to be accepted at the cost at which it was accounted for in tax accounting by the transferring party. In this case, the value of the transferred property must be documented.

But let me! What happens then? And if the founder is an ordinary individual or an entrepreneur who does not apply the general taxation system? Apparently, in such a situation, the tax authorities will demand that the value of the property received as payment for a share from founders who do not pay income tax be recognized as equal to zero for profit tax purposes. It turns out that it is advisable to receive only money from the founders-citizens in payment for their share?

Let's figure it out.

This problem will not worry a company that pays a single tax on imputed income (UTII). Such organizations do not keep tax records, and they are not interested in the problems of depreciation of the property received as payment for a share in the authorized capital. After all, the payment of UTII depends only on the availability of specific physical indicators.

Also, there will be no problems for those societies that, from the moment of their formation, will use the simplified taxation system (STS). Of course, provided that they choose only the income they receive as an object of taxation. Such an object of taxation is provided for in paragraph 1 of Article 346.14 of the Tax Code of the Russian Federation. The situation will be much more difficult for those "simplifiers" who, on the basis of the same paragraph, first of their activities will choose the object of taxation according to single tax income minus expenses. Article 346.16 of the Tax Code of the Russian Federation states that the income received by the "simplified" can be reduced by the costs of acquiring fixed assets. According to the author, the fixed assets received during the formation of the authorized capital cannot be considered acquired during the period of application of the USN. However, there are no grounds to consider them acquired during the period of application of the general taxation system. These fixed assets were acquired by the firm at a time when the company did not yet apply any of the taxation systems.

As stated in subparagraph 2 of paragraph 3 of Article 346.16 of the Tax Code of the Russian Federation, “the cost of fixed assets is taken equal to residual value this property at the time of transition to the simplified taxation system. Subparagraph 2 of paragraph 1 of Article 346.25 of the Tax Code of the Russian Federation states that on the date of transition to the simplified tax system, tax accounting should reflect the residual value of fixed assets acquired and paid during the period of application of the general taxation regime, in the form of the difference between the acquisition price and the amount of accrued depreciation in accordance with the requirements of Chapter 25 of the Tax Code of the Russian Federation. This rule does not apply in this situation. After all, a company that has been using the “simplification” system since its “birth” has never applied the general taxation system.

Thus, according to the author, a company that has chosen the object of taxation under the simplified tax system in the form of "income minus expenses" and applies the "simplification" from the moment of its state registration can avoid the problems associated with the requirements of the tax authorities to take into account the residual value according to tax accounting.

But not everyone is so lucky. Not always a company can immediately switch to the simplified tax system or must apply UTII. In other words, it will have to apply the general system of taxation. What to do in this case?

There are several options for behavior.

Firstly, one can put up with the position of the tax authorities and not take into account the depreciation of property contributed by the founder - an individual when calculating income tax. This is the easiest way out.

Secondly, some experts suggest simply ignoring the requirement tax service. The point is that in tax code he is not. It's just that the tax authorities extended the provisions of Article 277 of the Tax Code of the Russian Federation to the assessment of the property received by the company. And this article literally says the following: “At the same time, the value of the acquired shares (shares, shares) for the purposes of this chapter is recognized as equal to the value (residual value) of the contributed property (property rights), determined according to tax accounting data as of the date of transfer of ownership of the specified property (property rights), taking into account additional costs, which for taxation purposes are recognized from the transferring party upon such payment.

It is easy to understand that in this case we are talking about reflecting the value of the share in the tax records of the founder himself, but not the company he founded.

To assess the property contributed to the authorized capital by a person who did not keep tax records, some experts suggest simply using paragraph 1 of Article 257 of the Tax Code of the Russian Federation, which states that the initial cost of a fixed asset is the amount of expenses for its acquisition.

But here the positions of experts diverge. Some suggest that the initial cost of the received fixed assets be formed on the basis of documents confirming the actual costs of the transferring party for the acquisition of the transferred fixed assets. They believe that the monetary value of the contribution in accordance with the constituent documents cannot be considered the cost of their acquisition. For example, this opinion is expressed by the tax authorities themselves when faced with the question of how to reflect property received from a foreign investor in tax accounting. After all, he does not keep tax records, in the subtleties Russian accounting does not understand and often does not want to understand. Our country needs foreign investment.

Then the tax authorities in private answers say that “if the founder is a foreign legal entity, then the initial cost of the fixed asset received in the form of a contribution to the authorized capital from the receiving party should be formed based on the costs associated with the acquisition and further transfer of this fixed asset to the transferring party, taking into account the accrued depreciation reflected in the financial statements of a foreign legal entity.

And what, in fact, is a citizen of the Russian Federation worse than this "foreign legal entity"?

Other Russian specialists believe that since the Tax Code of the Russian Federation itself is not able to deal with such a situation, it is simply necessary to fulfill the requirements of Law N 14-FZ:

if the property contributed to the authorized capital costs less than 200 minimum wages, then the participants in the company have the right to evaluate it independently;

if the property costs more than 200 minimum wages, then it is necessary to obtain its expert assessment and, based on it, determine the value of such property, accepted as an offset for payment of the founder's share.

In the future, this property is subject to depreciation, like all other property that meets the requirements of the Tax Code of the Russian Federation for depreciable objects.

Thirdly, the founder - an individual - may first himself become individual entrepreneur and pay taxes on common system taxation. The property that he will use in his activities will have a tax assessment. Based on this assessment, it can be transferred as payment for the founder's share in the authorized capital of the company being created.

However, it is clear that this path significantly slows down the process of registering the company itself and significantly “stresses” the founder.

2.2. If the founder has not fully paid his share ...

As required by paragraph 1 of Article 16 of Law N 14-FZ, each founder of the company must fully contribute to the authorized capital within the period specified by the memorandum of association. This period cannot exceed 1 year from the date of state registration of the company. In this case, the value of the contribution of each founder must be no less than the nominal value of his share.

It is not allowed to release the founder of the company from the obligation to make a contribution to the authorized capital, including by offsetting his claims to the company being created.

At the time of registration of a limited liability company, its authorized capital must be paid at least half. Otherwise, the tax authorities will simply refuse to register the company. It does not matter which of the founders specifically contributed. The main thing is that the requirement of 50% be met.

Therefore, it may turn out that some of the founders will make their contributions immediately and in full, the level of payment of the authorized capital required for state registration will be reached, and then the matter will stall. Negligent, insolvent, or even simply changed their minds about participating in the business, the founders will back down and will not pay their share. Or they will pay, but only partially.

How can such a situation threaten society itself and such “refuseniks”?

For society, things can end badly. Paragraph 2 of Article 20 of Law N 14-FZ states that in the event of incomplete payment of the authorized capital of a company within a year from the date of its state registration, it must either declare a reduction in its authorized capital to the amount actually paid, or make a decision on liquidation.

At the same time, if the company does not decide within a reasonable time to reduce its authorized capital or to liquidate itself, then creditors have the right to demand early termination or fulfillment of the obligations of the company and compensation for their losses. And the tax authorities will have the right to go to court with a demand for the forced liquidation of the company.

On the other hand, there is a clause in the same law that actually contradicts such a strict requirement. Thus, in paragraph 3 of Article 23 of Law N 14-FZ, it is established that the share of the founder, who, when creating a company, did not make a full contribution to the authorized capital on time, passes to this company itself. At the same time, the company is obliged to pay to such a founder the actual value of his share, in proportion to the part of the contribution made by him (if he made anything at all). With the consent of the founder, the company can "pay off" from him with property. The actual value of the actually paid part of the share is determined on the basis of the data of the company's financial statements for the last reporting period preceding the day of the expiration of the deposit.

In the same way, the situation should be resolved if the founder paid for his share the right to use property for a certain period, and then, for one reason or another, he took this property from the company. As we have already said, in this case the founder must compensate the company for the damage he has suffered. Its size depends on the period during which the company had the right to use the seized property, but was unable to do so. If the company does not wait for the specified compensation, then the share of such a founder should go to the company.

In principle, the charter of the company may provide that a part of the share is transferred to it, proportional to the unpaid part of the contribution or the amount of compensation. When transferring the unpaid part of the share to the company, an entry should be made in the accounting records:

Debit 81 "Own shares (shares)" Credit 75.

And what can the company do with this share (or part of it) that has passed to it at its disposal?

According to Article 24 of Law N 14-FZ, the share owned by the company, within one year from the date of its transfer to it, must be, by decision of the general meeting of the company's participants:

or distributed among all participants of the company in proportion to their shares in the authorized capital;

or sold to all or some members of the company;

or sold to third parties, unless prohibited by the charter of the company.

In any case, it must be paid in full.

The part of the share not distributed among the remaining founders or sold to no one must be repaid with a corresponding decrease in the authorized capital of the company. The sale of a share to the founders, as a result of which the size of their shares changes, the sale of a share to third parties, as well as the introduction of changes related to the sale of a share in the constituent documents of the company, are carried out only by decision of the general meeting of the company's participants. Moreover, the decision must be taken by all the founders unanimously.

Articles 23 and 24 of Law N 14-FZ state that even if a year after the registration of the company, the share of one of the founders is not paid in full, the company still has options during the year:

distribute the unpaid share among the other founders;

sell it to the founders;

sell it to third parties.

Therefore, in fact, the authorized capital may not be paid in full within a period of up to 2 years from the date of state registration of a limited liability company.

Note!

The share passes to the company from the moment of the expiration of the period for its payment. And this term is established in the memorandum of association. It cannot be more than 1 year, in accordance with paragraph 1 of Article 16 of Law N 14-FZ, but it may well be less. Therefore, if, under the terms of the memorandum of association, the period for paying the share is less than a year, then the annual period during which the company must decide on the “fate” of the unpaid share will begin, respectively, somewhat earlier.

So what are the legal requirements to be guided by: those spelled out in Article 20 of Law No. 14-FZ, or those spelled out in Articles 23 and 24 of the same law?

Most experts agree that it is the last two articles that should be followed. They believe that Article 20 contains a general rule that describes and regulates the situation when shares in the authorized capital are not paid by all the founders of the company. If the share is not paid only by some of the founders, then special rules must apply, that is, those set out in Articles 23 and 24.

Contributes to this opinion arbitrage practice.

For example, the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation in their resolution of July 1, 1996 N 6/8 indicated that a legal entity can be liquidated by a court decision only in cases provided for in paragraph 2 of Article 61 of the Civil Code of the Russian Federation. And it's listed there:

gross violations of the law committed during its creation, if these violations are irreparable;

carrying out activities without proper permission or prohibited by law;

carrying out activities with other repeated or gross violations of the law.

Thus, it is up to the court to determine whether a firm's violation of its registration procedure is gross or irremediable. Therefore, the requirements of Article 20 of Law No. 14-FZ alone cannot serve as an automatic basis for the liquidation of a company. To liquidate the company or not - the court will decide, taking into account the nature of the violations committed by the company and the consequences they caused.

Thus, if the founder has not fully paid his share, then the limited liability company must do the following.

First, pay off your “negligent” founder with money or property. We'll cover how to do this in Chapter 6, Leaving a Founding Member.

Secondly, either distribute the share that has passed to the company's disposal among the founders, or sell it to them, or sell it to third parties.

According to paragraph 7 of PBU 9/99 “Income of the organization”, proceeds from the sale of assets “other than Money(except for foreign currency), products, goods” are recognized as operating income. Therefore, the sale of the unpaid part of the founder's share to a third party in accounting should be reflected in the entry:

Debit 75 Credit 91.

Based on paragraph 11 of PBU 10/99 "Expenses of the organization", the nominal value of the share sold to a third party can be considered an operating expense. Therefore, the firm must make the wiring:

Debit 91 Credit 81.

The transaction for the sale of such a share is not subject to VAT on the basis of subparagraph 12 of paragraph 2 of Article 149 of the Tax Code of the Russian Federation. And on the basis of subparagraph 3 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation, income in the form of property, property rights or non-property rights having a monetary value, which are received in the form of contributions to a statutory organization, are not taken into account when taxing profits.

The authorized capital of Ocean LLC is registered in the amount of 300,000 rubles. The share of the founder Makarov is 40% of the specified amount, that is, 120,000 rubles.

Within the period established by the constituent agreement, Makarov contributed only 80,000 rubles.

The charter of Ocean LLC provides for the transfer to the company of a part of the share proportional to the unpaid part of the contribution. Subsequently, the unpaid part of the share was sold to Aratyunyan for 40,000 rubles.

In the accounting of the company, the following entries should be made:

Debit 81 Credit 75

40 000 rub. - the transfer of the unpaid part of the share to the company is reflected in the accounting on the date of expiration of the deposit payment period;

Debit 51 Credit 75

40 000 rub. - reflected the receipt of money in payment for a part of the share from Aratyunyan;

Debit 75 Credit 91

40 000 rub. - reflects the income received from the sale of a part of the share as of the date of registration of changes in the constituent documents;

Debit 91 Credit 81

40 000 rub. - written off the nominal value of the sold part of the share.

2.3. Additional contributions to the authorized capital after its formation

In accordance with Article 17 of Law N 14-FZ, an increase in the authorized capital of a company is allowed only after its full payment. An increase in the authorized capital may be carried out at the expense of additional contributions from the company's participants. The procedure for making additional contributions to the authorized capital of the company, after the authorized capital has been formed, is slightly different from the procedure for making the main contributions.

If the additional contribution is made in cash, then there is no need to evaluate the contribution. In the accounting of a company, you just need to make a posting:

Debit 50 (51) Credit 75.

In the event that the authorized capital of the company is increased by additional contributions, a general meeting of the founders of the company must be held no later than one month from the date of the expiration of the term for making contributions. It is necessary to make a decision on the approval of the results of making additional contributions. In this regard, it is necessary to make changes to the constituent documents of the company related to an increase in the authorized capital of the company and an increase in the nominal value of the shares of the founders who made additional contributions. If the size of the shares of the company's participants has changed, then this should also be reflected in the constituent documents. Such conditions are spelled out in paragraph 1 of Article 19 of Law N 14-FZ. It should be remembered that changes in constituent documents become effective for third parties from the moment of their state registration. So it is written in paragraph 3 of Article 52 of the Civil Code of the Russian Federation.

All changes in the constituent documents are recorded by the same state body that originally registered the company, that is, the tax office.

Only after registering changes in the accounting of the company should the posting be made:

Debit 75 Credit 80.

The money received from the founders as a contribution to the authorized capital is not taken into account as income when calculating income tax in accordance with subparagraph 3 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation. At the same time, the difference between the nominal value of the placed shares and the amount of money received is not recognized as either profit or loss for the purposes of calculating income tax in accordance with subparagraph 1 of paragraph 1 of Article 277 of the Tax Code of the Russian Federation.

And what happens if the additional contribution is made not in money, but in other property - fixed assets, intangible assets, property rights? In this situation, as in the case of making basic contributions, it is necessary to strictly comply with the rules of Article 15 of Law N 14-FZ. If the increase in the nominal value of the founder's share is paid in non-monetary funds and the cost of the increase exceeds 200 minimum wages, then the property contributed as a contribution must be evaluated by an independent expert.

After receiving an expert assessment, the founders of the company decide among themselves the question at what price to accept the property as payment for the additional contribution. This price cannot exceed the expert estimate.

Recall that if fixed assets or intangible assets are transferred as a contribution, then account 08 “Investments in non-current assets” will need to be used in the accounting of the company.

As well as in the case of depositing money, the company does not have an object for income tax in such a situation. Will the owner not have to pay income tax? No, you don't have to.

In accordance with Article 208 of the Tax Code of the Russian Federation, income from sources in the Russian Federation includes income received from the lease or other use of property, income from the sale real estate, shares or other securities, as well as shares in the authorized capital of organizations and other property owned by an individual.

Obviously, when making property as an additional contribution to the authorized capital, the founder has no income, therefore these amounts should not be subject to personal income tax. At least, this is the opinion of the Ministry of Finance of Russia, stated in a letter dated August 29, 2003 N 04-02-05 / 2/42.

Due to the difficult financial position the company's founder Konkin makes an additional contribution to the authorized capital of Prometey LLC. The amount of the additional contribution is 80,000 rubles. As payment for the additional contribution, the founder Konkin transferred a woodworking machine. According to an expert assessment by an independent appraiser, the market value of the machine is 90,000 rubles. By decision of the founders, the machine is accepted as payment for an additional contribution of the founder at a cost of 80,000 rubles.

The following entries were made in the accounting records of the company:

Debit 08 Credit 75

80 000 rub. - reflects the property contributed by Konkin as payment for an additional contribution;

Debit 01 Credit 08

80 000 rub. - the property contributed by the founder is included in the company's fixed assets;

Debit 75 Credit 80

80 000 rub. - after registration of changes in the constituent documents of the company, the size of the authorized capital of the company was increased.

The last posting is made on the basis of a certificate of registration of changes to the constituent documents.

2.4. Increase in authorized capital at the expense of retained earnings

If the company is working successfully and after paying all taxes it has retained earnings, then its founders have the right to increase the authorized capital of the company by the amount of this profit.

In accordance with paragraph 1 of Article 18 of Law N 14-FZ, an increase in the authorized capital of a company at the expense of its property is carried out by decision of the general meeting of participants. This decision must be supported by at least 2/3 of the votes of the total number of votes of the company's participants. However, the need for a larger number of votes to make such a decision may be provided for in the company's charter. At the same time, the decision to increase the authorized capital of the company at the expense of its property can only be made on the basis of accounting data for the year that preceded the year during which such a decision was made.

In accounting, this operation is reflected simply:

Debit 84 Retained earnings (uncovered loss) Credit 80.

As we already know, information about the size of the authorized capital of the company and the size of the share of each of its founders is contained in the charter and memorandum of association of the company - paragraph 1 of Article 12 of Law N 14-FZ. Therefore, when increasing the authorized capital of a company, appropriate changes must be made to its constituent documents. These changes are subject to state registration in the same state body where the company was originally registered, that is, currently in the tax office.

As a rule, the increase in the nominal shares of the founders at the expense of the firm's retained earnings is made in proportion to their existing shares. Thus, the percentage of the share of each founder to total value the authorized capital of the company does not change. Only the nominal value of the share changes. This is stated in paragraph 3 of Article 18 of Law N 14-FZ.

However, the same law establishes an important limitation on the way of increasing the authorized capital of the company at the expense of its property. It is contained in paragraph 2 of Article 18 of Law N 14-FZ. It says that the amount by which the company's authorized capital is increased at the expense of its property should not exceed the difference between the value of the company's net assets and the amount of its authorized capital and reserve fund.

The company's net assets are calculated on the basis of the requirements set forth in Order No. 10n, 03-6/pz of January 29, 2003 of the Russian Ministry of Finance and the Federal Securities Commission of Russia. Although the procedure for calculating net assets contained in this document, is prescribed only for joint-stock companies, practice shows that limited liability companies can also use it.

It is not difficult to determine the value of net assets. To do this, you should find the difference between the assets and liabilities of the company's balance sheet involved in the calculation. The composition of assets must include non-current assets, which are reflected in the first section of the balance sheet, and current assets, shown in its second section. At the same time, the debts of the founders on contributions to the authorized capital are excluded from the calculation.

Liabilities should include long-term liabilities for loans and credits and other long-term liabilities, short-term liabilities for loans and credits, accounts payable, debts to the founders for the payment of income, reserves for future expenses and other short-term liabilities.

To put it simply, net assets are the amount that will remain at the disposal of the company if it suddenly paid off all its obligations at a time. This is the asset that the company can "freely" dispose of, since it is not bound by any counter obligation.

Recall that if, according to the results, the value of the company's net assets is less than the authorized capital, then it is obliged to reduce it. This requirement for limited liability companies is contained in paragraph 4 of Article 90 of the Civil Code of the Russian Federation.

If the firm does not do this, then its creditors may well require it to return their money. At the same time, the tax inspectorate, as a registering body, will have the right to apply to the court with a demand for the forced liquidation of the company.

But all these issues are completely resolved at the level of the founders of the company. Much more significant is the problem of paying personal income tax on the amount of an increase in the share of founders due to retained earnings.

There are two completely opposite points of view on this issue. Let's figure it out.

The first point of view, which is unfavorable for taxpayers, is supported not only by employees of the Russian Ministry of Finance, but also big amount specialists. It consists in the following.

According to article 209 of the Tax Code of the Russian Federation, the object of taxation for personal income tax is income received by taxpayers. According to paragraph 1 of Article 210 of the Tax Code of the Russian Federation, when determining the tax base, all income of the taxpayer received by him both in cash and in kind, or the right to dispose of which he has arisen, as well as income in the form of material benefit, determined in accordance with article 212 of the Tax Code of the Russian Federation.

Income received from the company by its founders in the form of the difference between the new and original nominal value of the property share in the authorized capital is not subject to personal income tax only in one case - if the increase in the nominal value of the founders' share is carried out as a result of revaluation of the company's fixed assets. For this, the Tax Code of the Russian Federation has a special paragraph 19 of Article 217.

And if the increase in the share occurred as a result of the distribution of the company's profits, then there are no grounds for exempting such income from personal income tax. According to experts who adhere to this particular point of view, the taxpayer should be guided by subparagraph 10 of paragraph 1 of Article 208 of the Tax Code of the Russian Federation, that is, attribute the increase in nominal value to "other income received by the taxpayer as a result of his activities in the Russian Federation."

The tax authorities and the accounting workers who joined them are not lost in determining the date of receipt of income. In accordance with paragraph 3 of Article 225 of the Tax Code of the Russian Federation, the total amount of personal income tax is calculated based on the results of the tax period in relation to all income of the taxpayer, the date of receipt of which relates to the corresponding tax period. It turns out that the obligation of the taxpayer to pay tax is associated with the fact of receiving income. At the same time, it does not matter whether the income is actually received or whether the taxpayer has just acquired the right to dispose of it.

Thus, in the case under consideration, the date of receipt of income is the date of the decision to increase the authorized capital of the company and, accordingly, the nominal value of the shares of each participant.

Well? Seems quite logical? Let's now look at the arguments of the opponents.

They rely not only on quotations from chapter 23 "Tax on income individuals» Tax Code of the Russian Federation, but operate with definitions throughout the volume of the Tax Code of the Russian Federation, as well as the Civil Code of the Russian Federation and Law N 14-FZ.

Indeed, they say, the object of personal income tax is the income received by the taxpayer. But what is income? Its definition is given in Article 41 of the Tax Code of the Russian Federation - this is an economic benefit in cash or in kind. What happens when the authorized capital is increased?

As paragraph 1 of Article 87 of the Civil Code of the Russian Federation states, a limited liability company is commercial organization, the authorized capital of which is divided into shares, the size of which is determined in the constituent documents. The Company is an independent legal entity and owns property. At the same time, please note that the property of the company is separated from the property of its founders.

Thus, the founder does not have the right of ownership to the property of the company created by him. He has obligations in relation to him, certified by a share, as indicated in paragraph 2 of Article 48 of the Civil Code of the Russian Federation. These rights are as follows:

the right to receive net profit in proportion to the share of the founder;

the right to receive the actual value of the share (in cash or in kind) in the event of the founder's withdrawal or exclusion from the company;

the right to a part of the company's property after its liquidation;

the right to participate in the management of the company, to receive information about its activities, etc.

It is easy to make sure that the first 3 groups of rights relate to property rights. When actually exercising any of these rights, the owner of the share receives income, for example, dividends, the actual value of the share in money or property. In this case, the property of the company really becomes the property of its member. There are no other such cases in the legislation.

The founders of a limited liability company have the right to increase the authorized capital of the company at the expense of its retained earnings. However, after all, the profit distributed in this way does not go directly to the participants, it actually remains in the ownership of the company. Only the nominal value of the founders' shares increases. In other words, the potential for them to make a profit.

This potential will actually be realized only when the owners of the shares realize any of their property rights granted to them by their shares in the authorized capital. Yes, that's it then such income will already be subject to personal income tax. But in itself, an increase in the authorized capital at the expense of the company's retained earnings does not entail income from its founders.

In addition, it is unlawful to equate the increase in the nominal shares of the founders due to retained earnings and income in kind. After all, what is a share in the authorized capital? This is a complex property right of the participant, as well as some non-property rights associated with it. And in Article 211 of the Tax Code of the Russian Federation, the in-kind form of income is defined as the receipt of goods, works, services or other property. So, in tax legislation, thanks to paragraph 2 of Article 38 of the Tax Code of the Russian Federation, the concept of "property" does not include "property rights". Therefore, the increment of the share of the founder cannot be defined as the receipt of natural income by him.

In itself, an increase in the nominal size of the share does not lead to a decision on the distribution of profit and its payment. And without this, the founder of the company does not have actual income, which means that there will be no object of personal income tax.

Oddly enough, but confirmation of this position can be found in the letter of the Ministry of Finance of Russia dated January 8, 2004 N 04-04-06 / 5. Although it is an answer to a specific request, this answer is given in general terms, and therefore applicable to other similar situations. It said the following.

“The difference between the new and original value of the shares of the participants in a limited liability company, formed in connection with the increase in the authorized capital at the expense of retained earnings, is the income of the participants in the company, subject to taxation.

At the same time, in accordance with paragraph 1 of Article 223 of the Code, the date of actual receipt of income in cash is determined as the day of payment of income.

If the payment of income is carried out only after the sale (sale) of the share of a member of the company, the payment of tax is made in deadlines for the relevant tax period to which the actual date of receipt of the above income refers. That's it!

On the other hand, when responding to the same private request by the same Ministry of Finance of Russia in a letter dated September 30, 2004 N 03-05-01-04 / 29, the first point of view on this issue was warmly supported.

They agreed that "a change in the size of the authorized capital of a limited liability company in itself is not an object of taxation for personal income tax." However, "the difference between the new and the original nominal value of the shares of the participants in a limited liability company, formed in connection with the increase in the authorized capital of a limited liability company at the expense of retained earnings, is the income of the participants in the company received in kind, subject to taxation."

Both the first and second letters were signed by deputy directors of the same Department of the Russian Ministry of Finance. Apparently, there is no unanimity among officials either.

So what to do? What will happen if you do not argue with them in court, but agree with their demand?

Then, on the basis of subparagraphs 1 and 3 of Article 226 of the Tax Code of the Russian Federation, the company will be a tax agent for personal income tax. Therefore, it is obliged to calculate, withhold from taxpayers and pay the amount of personal income tax to the budget.

It is good if the founders are also employees of the company. Then the amount of tax can be withheld from the salary accrued by him when it is actually paid. At the same time, on the basis of paragraph 4 of Article 226 of the Tax Code of the Russian Federation, the amount of personal income tax withheld cannot exceed 50% of the amount of payment. Withholding personal income tax from the wages of employees is reflected in the posting:

Debit 70 Credit 68 "Calculations for personal income tax."

According to the decision of the general meeting of the founders of Orion LLC, held on April 27, 2005, a part of retained earnings in 2004 in the amount of 100,000 rubles. was aimed at increasing the authorized capital of the company. Changes to the founding documents of the company were registered in May 2005.

The founders of the company work in it and receive wages. Consequently, the company can withhold personal income tax directly from the income paid to them.

If the company "follows the lead" of the tax authorities, then it will have to make the following entries:

In May 2005:

Debit 84 Credit 80

100 000 rub. - reflected the increase in the authorized capital of the company due to retained earnings.

In June 2005:

Debit 70 Credit 68 "Calculations for personal income tax"

13000 rub. (100,000 rubles x 13%) - withheld personal income tax calculated from the income of the founders of the company;

Debit 68 subaccount "Personal income tax settlements" Credit 51

13 000 rub. - the withheld tax is transferred to the budget.

The situation is worse if the founders do not work in the company and do not receive any money from it. Since the company is not able to withhold personal income tax, each founder must calculate and pay the tax independently on the basis of subparagraph 4 of paragraph 1 of Article 228 of the Tax Code of the Russian Federation. At the same time, the company, within a month from the moment of increasing the nominal share of the founder, must inform tax office that it is not possible to withhold personal income tax from a citizen. This is the requirement of paragraph 5 of Article 226 of the Tax Code of the Russian Federation. In addition, at the end of the year, the company must submit Form No. 2-NDFL to the tax office with the relevant information on the basis of paragraph 2 of Article 230 of the Tax Code of the Russian Federation. This information is submitted no later than April 1 of the year following the year of increase in the nominal size of the share of the founder.

Note!

Payment of personal income tax at the expense of tax agents is not allowed. When concluding contracts and other transactions, it is prohibited to include tax clauses in them, according to which tax agents paying income assume the obligation to bear the costs associated with the payment of tax for individuals. This is a condition of the Tax Code of the Russian Federation - it is spelled out in paragraph 9 of Article 226 of the Tax Code of the Russian Federation.

allows you to increase the financial attractiveness of the company for shareholders or investors. This procedure is in the interests of the founders, reflecting the guaranteed minimum value of own property owned by the organization.

Ways to increase the UK

The authorized capital belongs to own resources enterprise, participates in the evaluation of its financial stability and affects profitability, which is in the interests of its participants.

The minimum size of the UK, characteristic of organizations of various forms of ownership, is fixed by law. The size of the authorized capital in an LLC in accordance with the norms of the Federal Law "On Limited Liability Companies" dated February 8, 1998 No. 14-FZ is 10,000 rubles.

When determining the minimum level of the Criminal Code of joint-stock companies, the provisions of the Law “On Joint-Stock Companies” dated December 26, 1995 No. 208-FZ are taken as the basis. Minimum volume of charter capital for JSC open type equal to 100,000 rubles, closed - 10,000 rubles.

Shareholders or members of the enterprise have the right to increase in authorized capital at the expense of retained earnings. However, there are other ways to grow the UK:

1. An increase in its size as a result of contributions made by participants, including newly admitted ones, on grounds that do not contradict the company's charter.
2. Applying the additional capital of AO.
3. Using the balances of special-purpose funds, with the exception of the reserve fund and the employees' corporatization fund.

At the same time, the first method is typical only for LLC, and the options listed in paragraphs 2-3 meet the requirements of JSC.

The change in is recorded by the following posting:

Dt 84 "Retained earnings" - Kt 80 "Authorized capital".

Change in the size of the authorized capital in JSC

JSC status allows an organization to fulfill increase in authorized capital at the expense of retained earnings. The authorized capital at this organizational form represents the total par value of shares purchased by members.

The growth of the management company is facilitated both by an increase in the value of each share, and by placement with the help of an additional issue. Their value is growing, including due to retained earnings of previous periods. Shareholders of the company have the right to use the data of this indicator in order to increase the charter capital by making an appropriate decision.

It is necessary to comply with the condition that the amount arising from the increase would not exceed the value of net assets minus the amount of the reserve fund and the authorized capital according to the reporting data preceding the start of the operation to issue shares.

If an additional issue of the Central Bank is required, the same rules apply. Decision on increase in authorized capital at the expense of retained earnings is considered and approved at the general meeting by the shareholders-participants in parallel with the decision to change the provisions on declared shares. You should also decide on other points when issuing additional shares:

• the number of additional shares of various types (ordinary and preferred);
• the chosen method of placement;
• form of payment and placement price.

Additional shares issued at the expense of own property (retained earnings) are placed proportionally among the shareholders.

Features of increasing the UK in LLC

The size of the authorized capital consists of the value of the shares owned by the participants in the organization. The procedure for increasing the company's charter capital is permissible either at the expense of the company's own property, or on the basis of contributions from its participants (provided that such a right is enshrined in the constituent documents of the LLC).

Need increase in authorized capital at the expense of retained earnings discussed at the meeting of the founders. Accounting indicators for the past period are taken as a basis. As in the case of JSCs, the amount of the capital increase cannot exceed the difference, which is defined as the net asset value less the amount of the capital and the institution's reserve fund.

Example:

In Prestige LLC, the amount of net assets amounted to 75,000 rubles, the volume of the reserve fund - 15,000 rubles, the management company - 10,000 rubles. The meeting of founders decided to increase the value of the authorized capital to replenish working capital and turn the enterprise towards investment attractiveness. What is the amount of the operation?

Considering that the size of the UK and the reserve fund in the aggregate should not exceed 75,000 rubles. (volume of net assets), the maximum size of the UK in this case will be 60,000 rubles.

Actions for increase in authorized capital at the expense of retained earnings must be done in a certain order:

1. It is necessary to pay the initial amount of the UK in full.
2. Document changes.
3. Submit the following documents to the tax authorities:

• statement;
• charter (new edition);
• document on payment of state duty;
• minutes of the meeting of founders;
• accounting for the previous period.

Documents are transferred to the IFTS employees no later than one month after the participants make the relevant decision by a majority of votes.

"Financial newspaper. Regional issue", 2006, N 32
INCREASE IN THE AUTHORIZED CAPITAL OF LLC
DUE TO RETAINED EARNINGS
The size of the authorized capital of any business entity can be called a business card: its value determines minimum size property that guarantees the interests of creditors (Article 90 of the Civil Code of the Russian Federation). This ultimately affects the image and investment attractiveness of this enterprise, the opportunities for business cooperation with serious partners and business development.
In this regard, the issue of accounting and taxation for organizations-participants (owners of shares) of operations to increase the size of the authorized capital of the company founded by them at the expense of retained earnings of this company is relevant.
According to the Federal Law of 08.02.1998 N 14-FZ "On Limited Liability Companies" (hereinafter - Law N 14-FZ), an increase in the authorized capital is possible in two ways: at the expense of the property of the company itself (Article 18) or at the expense of additional contributions from participants and third parties (art. 19). Let's consider the first of them in more detail.
First of all, it is necessary to pay attention to a number of restrictions established by Law N 14-FZ. In particular, such a decision must be made by the general meeting of participants by a majority of at least two-thirds of the votes of the total number of votes of the participants, unless otherwise provided by the charter. In addition, the decision is made only on the basis of the financial statements of the company for the year preceding the year during which it was taken. At the same time, the amount by which the authorized capital is increased must not exceed the difference between the value of the company's net assets and the amount of the company's authorized capital and reserve fund.
The law also contains another important clause - this operation leads to a proportional increase in the nominal value of the shares of all participants without changing the size of their shares.
The procedure for accounting for an increase in the authorized capital at the expense of retained earnings of the company itself does not cause difficulties: Dt 75 "Settlements with the founders", Kt 80 "Authorized capital"; Dt 84 "Retained earnings (uncovered loss)", Kt 75. At the same time, in the analytical accounting for account 80, a proportional increase in the shares of its owners is recorded.
As for the reflection of this operation with participants - legal entities, at present it is not directly established by regulatory documents, and it is necessary to be guided by general principles and rules.
So, in accordance with 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, as well as paragraphs 3, 8, 21 PBU 19/02 "Accounting for financial investments", approved by Order of the Ministry of Finance of Russia dated 10.12.2002 N 126n, the share in the authorized capital of an LLC is accounted for as part of financial investments at the initial cost on account 58 "Financial investments", subaccount 58-1 "Shares and shares".
Paragraph 12 of PBU 19/02 provides that the initial cost of financial investments may change in cases established by law and this Regulation. In this case, the procedure is as follows: a) for investments for which the current market value can be determined; b) for investments for which the current market value is not determined; c) in case of depreciation of financial investments (section 5).
Since the current procedure assumes the identity of the amounts listed in the constituent documents (and on the credit of account 80) of the company with the debit balance on account 58 of the organization - a member of this company, the question arises about the procedure for reflecting this operation in the accounting registers and on the accounting accounts of the participant.
In the situation under consideration, the scope of the rights of a member of the company remains unchanged, however, there is an increase in the nominal value of the share. It seems that on the basis of paragraph 18 of PBU 19/02, in this case, it is necessary to increase the cost of the financial investment of the organization. This also follows from the restriction specified by Law N 14-FZ that the increase in nominal value is made by an amount not exceeding the value of net assets minus the size of the authorized capital and reserve fund. In other words, it is allowed to "bring" financial investments to their actual value.
The retained earnings of this company aimed at increasing the authorized capital for the founding organization is income on the basis of clause 7 PBU 9/99 "Income of the organization", approved by Order of the Ministry of Finance of Russia dated 06.05.1999 N 32n. The absence of actual receipt of funds does not matter, since the income is received in the form of an increase in the nominal value of the share. Recall that, in contrast to tax accounting in accounting, a share in the authorized capital of an LLC as an object of civil rights refers to a variety of property rights (Article 128 of the Civil Code of the Russian Federation).
At the same time, the requirement of paragraph 2 of PBU 9/99 is observed that “an organization’s income is recognized as an increase in economic benefits as a result of the receipt of assets (cash, other property) and (or) the repayment of obligations, leading to an increase in the capital of this organization, with the exception of deposits participants (property owners).
Thus, the specified operation on the accounting accounts of the participating organization will be reflected in the entries: Dt 58, Kt 76; Dt 76, Kt 91.
As for the taxation of this operation, this issue remains controversial.
So, in the Letter of the Ministry of Finance of Russia dated January 11, 2005 N 03-03-01-04 / 2/3, it was indicated that Ch. 25 of the Tax Code of the Russian Federation does not contain rules that allow excluding from the tax base for corporate income tax an increase in the nominal value of a share in the authorized capital of an LLC.
Indeed, according to par. 15 p. 1 art. 251 of the Tax Code of the Russian Federation, when determining the tax base, income "in the form of the value of additional shares received by the organization - shareholder, distributed among shareholders by decision of the general meeting in proportion to the number of shares they own, or the difference between the nominal value of new shares received in exchange for the original ones, and the nominal value of the initial shares of a shareholder when distributing shares among shareholders when increasing the authorized capital of a joint-stock company (without changing the shareholder's share in this joint-stock company)". That is, this benefit applies only to joint-stock companies, in which experts reasonably see the discriminatory nature of this rule.
The tax authorities were of the opposite opinion. The Letter of the Federal Tax Service for the city of Moscow dated June 30, 2005 N 20-12 / 46422 states that the mere fact of increasing the authorized capital of a company does not entail income for its participants, since this company is an independent legal entity, has property on the right of ownership and this property is separated from the property of its founders (participants). Therefore, when the authorized capital of an LLC is increased at the expense of retained earnings, a participant whose share increases in proportion to the share previously owned by him in the authorized capital of this LLC does not arise taxable income.
Federal Law No. 58-FZ of June 6, 2005 amended the composition of non-operating income. If earlier, in accordance with paragraph 1 of Art. 250 of the Tax Code of the Russian Federation, non-operating income was recognized as income from equity participation in other organizations, a new wording made a reservation: with the exception of income directed to pay for additional shares (shares) placed among the shareholders (participants) of the organization.
According to some experts, this amendment cannot be applied to the situation under consideration, since additional shares are not placed (acquired) by anyone, but there is a proportional increase in the nominal value of the shares of all participants without changing the size of the shares in accordance with paragraph 3 of Art. 18 of Law N 14-FZ.
In the opinion of the author, taking into account the content of paragraphs. 2 p. 2 art. 43 and pp. 15 p. 1 art. 251, as well as the similarity of economic processes (for JSCs and LLCs), it was necessary to formulate this rule more clearly, including in it a provision that it is also applied in the event of an increase in the nominal value of the shares of the company's participants due to retained earnings.
The lack of clear regulatory regulation of this issue leads to the expression of different opinions. Moreover, tax risks increase due to the need to apply a tax rate of 24%. This follows from s. 2 p. 2 art. 43 of the Tax Code of the Russian Federation, which states that "payments to shareholders (members) of an organization in the form of transferring shares of the same organization into ownership" are not recognized as dividends. This provision may also be applied when the nominal value of the shares of each LLC participant is increased.
In the context of the uncertainty of tax legislation, it is safer for taxpayers from the point of view of possible negative tax consequences to decide on the distribution of profits in the form of dividends (with payment of tax), and then allocate the remaining funds to increase the authorized capital of the company.
A.Amiev
K. e. n.
OOO "Thoriaudit"
Signed for print
09.08.2006