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

Accounting

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

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

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

Income in the form of a forgiven debt should be reflected as other income in the reporting period in which the notification (agreement, contract) about debt forgiveness was signed (received) (clause 16 of PBU 9/99).

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

An example of how debt forgiveness under a supply agreement is reflected in the debtor’s accounting

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

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

Debit 41 Credit 60
- 118,000 rub. - purchased goods are capitalized;

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

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

An example of how debt forgiveness under a loan agreement with an organization is reflected in the debtor’s accounting

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

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

To reflect transactions under the loan agreement, the Hermes accountant opened subaccounts for account 66 “Settlements for short-term loans and borrowings”:
- “Calculations on the principal debt”;
- “Calculations based on interest.”

The Hermes accountant recorded transactions related to debt forgiveness as follows.

Debit 51 Credit 66 subaccount “Principal payments”
- 500,000 rub. - the loan amount is credited to the current account.

Debit 91-2 Credit 66 subaccount “Interest payments”
- 4000 rub. - interest accrued on the loan received;

Debit 66 subaccount “Principal payments” Credit 91-1
- 500,000 rub. - the debt on the principal amount of the debt is written off;

Debit 66 subaccount “Interest payments” Credit 91-1
- 4000 rub. - the debt to pay interest on the loan is written off.

BASIC: income tax

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

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

Moreover, if the debt is written off under an agreement for the purchase of goods (including for subsequent sale), work, services, property rights and the organization applies the cash method at the time of signing (receiving) a notice (agreement, contract) about debt forgiveness, the purchased goods (work, services, property rights) will be considered paid. This is explained by the fact that by clause 3 of Article 273 of the Tax Code of the Russian Federation, payment is understood as another method of terminating an obligation (in this case, debt forgiveness) (clause 1 of Article 407, Article 415 of the Civil Code of the Russian Federation).

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

When using the accrual method at the time of signing (receiving) a notice (agreement, contract) about debt forgiveness, write off interest that is subject to accrual in the current reporting period, but not taken into account at the time of debt forgiveness, as a reduction in taxable profit (subclause 2, clause 1, article 265, Clause 8 of Article 272 of the Tax Code of the Russian Federation).

Include interest in the calculation of the tax base (clause 1 of Article 269, subclause 2 of clause 1 of Article 265 of the Tax Code of the Russian Federation).

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

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

The tax base for income tax is not increased only by the value of property received free of charge from the founder, whose share in the authorized capital of the organization exceeds 50 percent (subclause 11, clause 1, article 251 of the Tax Code of the Russian Federation). As a result of debt forgiveness, the transfer of property does not occur (clause 2 of Article 38 of the Tax Code of the Russian Federation). For tax purposes, this operation should be considered as a write-off of accounts payable, which is included in non-operating income on the basis of paragraph 18 of Article 250 of the Tax Code of the Russian Federation. The Tax Code of the Russian Federation does not provide for any exceptions to the procedure for its taxation.

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

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

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

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

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

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

According to the Russian Ministry of Finance, the amount of the forgiven loan does not need to be taken into account in income. However, claims from tax inspectors cannot be ruled out.

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

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

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

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

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

However, based on the position of regulatory agencies on a similar issue of accounting for the amount of debt forgiven by the founder under an agreement for the purchase of goods (work, services, property rights), it is possible that failure to reflect income when the debt is forgiven under a loan agreement may cause claims from inspectors. The fact is that, if you follow the norms of civil law, debt forgiveness is a way of terminating the obligation under the original compensation agreement(Articles 407 and 415 of the Civil Code of the Russian Federation). Therefore, the amount of forgiven debt, including under a loan agreement, cannot be considered property received free of charge (Article 572 of the Civil Code of the Russian Federation). For tax purposes, this operation should be considered as a write-off of accounts payable, which is included in non-operating income on the basis of paragraph 18 of Article 250 of the Tax Code of the Russian Federation. There are no exceptions regarding the non-reflection of income received from the founder in relation to this paragraph. Therefore, when forgiveness of debt under a loan agreement (as under any other agreement), it is necessary to generate income.

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

Advice: There is a way not to take into account the amount of debt forgiven by the founder under the loan agreement.

Along with the debt forgiveness agreement, a protocol must be drawn up general meeting participants of the company (shareholders), in which property, property or non-property rights are transferred to the organization to increase net assets (subclause 3.4, clause 1, article 251 of the Tax Code of the Russian Federation). In this case, the size of the founder’s share in the authorized capital of the organization does not matter. The opportunity to take advantage of such a benefit appeared on January 1, 2011 and applies to obligations arising from January 1, 2007 (clauses 1 and 2 of Article 4 of the Law of December 28, 2010 No. 409-FZ).

For more information, see .

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

The amount of interest when debt is forgiven must be taken into account as part of non-operating income (Clause 18, Article 250 of the Tax Code of the Russian Federation).

It is explained this way. At its core, interest is a fee that the borrower must pay for the use of borrowed funds in accordance with the loan agreement (Article 809 of the Civil Code of the Russian Federation). Therefore, when a debt is forgiven, the organization’s accounts payable are written off (Article 415 of the Civil Code of the Russian Federation). The legislation does not provide for any exceptions to the taxation procedure.

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

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

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

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

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

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

One of the founders of Alpha LLC is Master Manufacturing Company LLC. The Master's share in the authorized capital of the organization is 51 percent.

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

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

The following entries were made in accounting.

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

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

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

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

Debit 66 Credit 91-1
- 200,000 rub. - the amount of forgiven debt on the loan received is included in the organization’s other income;

Debit 66 Credit 91-1
- 2466 rub. (RUB 1,151 + RUB 1,315) - interest on the forgiven debt is included in other income.

When calculating income tax in February, the accountant took into account interest on forgiven debt as income - 2,466 rubles. (1151 rub. + 1315 rub.).

As part of non-operating expenses, the accountant took into account interest on the loan in the amount of 1,315 rubles.

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

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

For more information, seeHow to formalize and record receipt of financial assistance from the founder (participant, shareholder) .

Situation: Is it necessary to restore VAT on the amount of forgiven debt under an agreement for the purchase of goods (works, services, property rights)? Goods (works, services, property rights) purchased for use in transactions subject to VAT.

No no need.

Forgiveness of the debt by the seller (performer) leads to a reduction in the buyer's (customer's) obligations to pay for the goods supplied to him (work, services, property rights (Articles 407, 415 of the Civil Code of the Russian Federation). However, the price of the contract and the amount of previously submitted VAT upon forgiveness of the debt remain unchanged. The buyer has the right to deduct the amount of VAT presented by the seller (executor) simultaneously with the receipt of goods (work, services, property rights) (clause 2 of Article 171, clause 1 of Article 172 of the Tax Code of the Russian Federation). ) the right to deduct input VAT does not depend. Therefore, if the goods supplied (work, services, property rights) were accepted for accounting, and the amount of VAT was allocated in a correctly executed invoice, then the application of a tax deduction by the buyer (customer) is considered justified.

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

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

simplified tax system

The amount of the forgiven debt both under the agreement for the purchase of goods (works, services, property rights) and under the loan agreement should be included in non-operating income (clauses 8 and 18 of Article 250, clause 1 of Article 346.15 of the Tax Code of the Russian Federation). Do this on the date of signing (receipt) of the notification (agreement, contract) about debt forgiveness, regardless of the applied taxable object (clause 1 of Article 346.17 of the Tax Code of the Russian Federation).

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

If the organization believes single tax from the difference between income and expenses, the cost of purchased goods (work, services) is written off only after payment. Such payment is also considered to be the termination of obligations at the moment when a notice (agreement, contract) about debt forgiveness is signed (Clause 1, Article 407, Article 415 of the Civil Code of the Russian Federation). Therefore, if an organization has forgiven a debt for fixed assets, intangible assets or goods purchased for resale, such assets are considered paid and written off in the general manner (subclauses 2 and 4 of clause 2 of Article 346.17 of the Tax Code of the Russian Federation). Similarly, the cost of work and services that are not of a production nature is written off (clause 2 of Article 346.17 of the Tax Code of the Russian Federation).

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

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

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

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

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

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

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

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

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

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

If the founder's share is more than 50 percent, the question of including the amount of written-off debt in income is ambiguous. Since the controversial situation is based on the provisions of subclause 11 of clause 1 of Article 251 of the Tax Code of the Russian Federation, the conclusions it contains can be guided not only by income tax payers, but also by organizations applying the simplification (subclause 1 of clause 1.1 of Article 346.15 of the Tax Code of the Russian Federation ).

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

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

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

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

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

UTII

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

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

OSNO and UTII

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

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

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

Advantages and disadvantages of contribution to net assets

For ease of understanding, we list them:

• Any participant in the company can make a contribution to net assets: legal or individual regardless of the size of the share in the authorized capital (for comparison: a contribution to property on the basis of paragraph 11, paragraph 1, Article 251 of the Tax Code can only be made by a participant with a share of more than 50%);
• when contributing to a private equity fund, there are no restrictions on the subsequent disposal of property within a year from the date of transfer (the one-year limit is established by clause 11, clause 1, article 251 of the Tax Code);
• property, as well as property and non-property rights (including rights of claim under a loan, etc.) having a monetary value can be transferred;
• however, only a participant/shareholder can make a contribution in order to increase the NAV (a “child gift” is not possible - transfer of property from subsidiary company addressed to the mother);
• this instrument is applicable only to business partnerships and companies (JSC, LLC, etc., but not applicable to production cooperatives, business partnerships);
• When investing in a private equity fund, there is no increase in the authorized capital of the company.

You can use the contribution to the Cha that we already know! Retail companies they establish a legal entity (let’s designate it as an investment center) and make agreed funds received from the sale of products as contributions to property in order to increase the NAV. There is no need to pay income tax and the investment center can freely manage the participants’ money, for example, by investing it in new areas of activity.

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

What if you transfer not money, but property?

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

Now let's see what's interesting about using this tool in legal disputes.

Arbitrage practice

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

In another example, the tax authority challenged the reality of the founder’s contribution to net assets, which was stated to be the right of claim against the taxpayer purchased from the creditor (No. A53-31131/2015). The courts supported the tax authority that initially the services were provided fictitiously, in order to inflate VAT deductions, and the accumulated accounts payable were assigned to the founder only for show. Thus, the taxpayer tried to avoid non-operating income in the amount of unclaimed (bad) accounts payable.

What about bills?

Whereas the company's further transfer of this bill of exchange to a third party to pay off accounts payable is already subject to taxation (see cases No. A53-20551/2015, A41-39593/2015): the taxpayer has the right to include only the costs of selling the bill of exchange as expenses for profit tax purposes.

More controversial points

Finally, what happens if the founder decided to make a contribution to the company’s private equity fund, but at the time of the actual transfer Money managed to leave the participants? There was such a dispute in judicial practice and ended in favor of the taxpayer! Let us note that the decision to contribute to the property in order to increase the NA was made by the only participant before he left the company. Whereas the contribution of 10 million rubles (in two tranches) was transferred two months after the composition of the LLC’s participants changed.

As the court of first instance indicated, the obligation to contribute to the property of the company, accepted by its sole participant, had to be fulfilled by this participant even if he alienated his share. The Court of Appeal, on the contrary, supported the tax authorities, insisting that the funds received by the taxpayer from former member, are property received free of charge.

The cassation court put an end to this dispute, in its opinion, the participant’s obligation to provide financial assistance to the company does not pass to the acquirer of the share, and the moment of the actual transfer of the amount of money to the taxpayer does not change the qualification of this contribution as income of the taxpayer received in the form of property transferred by the participant of the economic society in order to increase net assets (see case No. A40-21501/2014). Unfortunately, more detailed information there are no details of the transaction for the alienation of a participant’s share in the case materials (which would make it possible to assess whether the position of the cassation court in this case is an isolated case or this decision is justified).

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

Conclusion

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

Many people believe that debt forgiveness is a very difficult and unprofitable operation. However, this is a misconception. Debt forgiveness is not only convenient when you need to redistribute money within a holding company, but also in the article we will tell you how to forgive a debt: the two most simple ones. Which companies belonging to the same group use in practice.

Method No. 1. Companies first draw up a loan agreement, and then forgive the debt

What are the benefits: You can redistribute money between companies, while the debtor will not have any income if the debt is forgiven by the founder with a 50% share.

Loan agreements are often used to distribute money between companies belonging to the same group. This method is advantageous to use when the lender owns more than 50 percent of the debtor’s authorized capital.

But issuing interest-free loans to subsidiaries is risky. In his opinion, when issuing an interest-free loan, he should reflect income in the form of interest that he could receive when issuing an interest-bearing loan (letters dated October 5, 2012 No. 03-01-18/7-137 and dated February 24, 2012 No. 03- 01-18/1-15).

Therefore, it is safer to indicate the rate in the loan agreement. In addition, this is beneficial for the subsidiary: interest on loans is reduced. Of course, one must take into account the restrictions set forth in paragraph 1 of Article 269 of the Tax Code of the Russian Federation.

Subsequently, the parent company forgives the debt. To do this, it is enough to sign the appropriate agreement (see sample below).

Subsidiary company. If the participant’s share in the authorized capital of the company is more than 50 percent, then the amount of the forgiven loan does not need to be included in taxable income. In this case, the money will be considered property received free of charge.

That is, you can apply the rules of subparagraph 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation. The Russian Ministry of Finance also agrees with this approach (letter dated September 30, 2013 No. 03-03-06/1/40367).

At the same time, it is important that the condition on the size of the founder’s share is met at the time of the loan (letter of the Ministry of Finance of Russia dated January 31, 2011 No. 03-03-06/1/45).

Please note: tax authorities insist that the amount of interest when debt is forgiven must be included in the borrower’s non-operating income (Clause 18, Article 250 of the Tax Code of the Russian Federation). After all, the company received from the founder exactly the amount that corresponds to the body of the loan. But the organization did not receive interest as such from the founder, but accrued it and included it in expenses. That is, there was no gratuitous transfer of property. This means that the benefit cannot be applied.

Moreover, arguing with inspectors is risky - the judges of the Supreme Arbitration Court of the Russian Federation may be on their side (determination dated March 21, 2014 No. VAS-2494/14). But even if accrued interest is reflected in income, the company does not lose anything. After all, she had previously included these amounts in expenses.

Founder. The amount of the forgiven loan cannot be included in tax expenses. According to the Russian Ministry of Finance, such costs are economically unjustified. That is, they do not meet the requirements of paragraph 1 of Article 252 of the Tax Code of the Russian Federation (letter dated April 4, 2012 No. 03-03-06/2/34). By the way, it will not be possible to take into account as part of non-operating expenses the amount of interest on the loan written off in connection with the termination of the obligation (letter of the Ministry of Finance of Russia dated December 31, 2008 No. 03-03-06/1/728).

Methods of debt forgiveness may be as follows.

Method No. 2. The company increases its subsidiaries

What are the benefits: The company may not pay income tax if the debt is forgiven by the founder with a share of 50 percent or less in the authorized capital.

The method is beneficial in two cases. Firstly, when the founder's share in the subsidiary is less than 50 percent. And secondly, when the company owes such a founder payment for goods, work or services.

The Russian Ministry of Finance has long believed that the amount of forgiven debt to pay for purchased goods (work, services) is included in non-operating income (letter of the Russian Ministry of Finance dated February 7, 2011 No. 03-03-06/1/76). Local inspectors reason like this. The organization includes the cost of goods (work, services) as expenses without paying for them. If, in addition, the written-off amount of debt is not taken into account in income, the company will reduce income tax by the same amount.

In this case, it is safer to use the amount of debt to increase net assets. For example, by forming additional capital or other funds (subclause 3.4, clause 1, article 251 of the Tax Code of the Russian Federation). That is, along with the agreement on debt forgiveness, you need the minutes of the meeting of the founders. The document must indicate that the property or rights to it are transferred to the organization specifically to increase net assets (see sample below).

Subsidiary company. When offsetting debt to increase net assets, income tax affiliated undertaking will not pay. Moreover, the size of the founder’s share in the company’s authorized capital does not matter.

Another plus is that it is not necessary to fulfill the condition of preserving the property for a year from the date of its receipt (letters from the Ministry of Finance of Russia dated April 20, 2011 No. 03-03-06/1/257, dated April 18, 2011 No. 03-03-06 /1/243, dated November 22, 2012 No. ED-4-3/19653).

The amount of the unrepaid loan can also be used to increase net assets, thereby terminating the company’s obligations under the agreement (letter of the Federal Tax Service of Russia dated July 20, 2011 No. ED-4-3/11698).

The forgiven interest on the loan, which the company took into account as expenses, can also be used to increase net assets. However, in this case, tax authorities will most likely require that the amount of interest be included in taxable income on the basis of paragraph 18 of Article 250 of the Tax Code of the Russian Federation. After all, in fact, these funds are not transferred to the subsidiary. In particular, such conclusions were made in the letter of the Federal Tax Service of Russia dated May 2, 2012 No. ED-3-3/1581@.

Founder. For the creditor, the amount of the forgiven debt should not be taken into account in tax expenses(clause 1 of article 252, clause 16 of article 270 of the Tax Code of the Russian Federation). Such clarifications have been given more than once by the Russian Ministry of Finance (letters dated April 4, 2012 No. 03-03-06/2/34, dated March 18, 2011 No. 03-03-06/1/147).

How the document will allow you to save money. If there is debt to companies belonging to the same group, the most obvious way to reduce the “creditor” is to transfer such debt to the status of equity, including through debt forgiveness. From a tax point of view, such debt forgiveness will not lead to an increase in the tax burden due to the use of subclause 3.4 of clause 1 of Article 251 of the Tax Code of the Russian Federation. This rule states that when a debt is forgiven by the founder in order to increase the value of the net assets of a subsidiary, the latter’s income received as a result of such forgiveness is not subject to income tax.

Let us recall that this rule has been in force since 2011, but applies to obligations arising from January 1, 2007 (clauses 1 and 2 of Article 4 of Law No. 409-FZ dated December 28, 2010). This means that the founders can profitably forgive the debts of their “subsidiaries” not only at the moment, but also reconsider their past tax obligations. This rule applies only to business companies and partnership. That's why non-profit organizations, and production cooperatives And unitary enterprises does not have the right to apply it (letter of the Ministry of Finance of Russia dated October 6, 2011 No. 03-03-07/39).

The purpose of such a benefit is to allow founders to improve their financial indicators their subsidiaries. This is important, for example, for attracting financing from third-party investors. Banks and investment companies When providing financing, the structure of the borrower’s balance sheet is preliminarily assessed. No one will give a loan to a company with negative net assets.

Another one possible reason increase in net asset value - the prospect of selling a subsidiary. The higher the net asset value, the higher the market value of the shares of the subsidiary. As a result, it becomes possible to sell the business at a higher price.

With a small net asset value, the company may encounter other problems. For example, this indicator is taken into account when calculating the limit for recognizing interest on controlled debt (clause 2 of Article 269 of the Tax Code of the Russian Federation). The higher the net assets, the greater the amount of interest recognized as expense. In addition, legislation prohibits a company from distributing profits and paying dividends if the value of its net assets is less than its authorized capital. Or it will become less as a result of such payment (clause 1, article 29 Federal Law dated 02/08/98 No. 14-FZ, p. 1 tbsp. 43 Federal Law dated December 26, 1995 No. 208-FZ). In this case, the assessment of the value of net assets must be carried out quarterly and at the end of the year on the corresponding reporting dates (clause 5 of the Procedure for assessing net assets in joint stock companies, approved by order dated January 29, 2003 of the Ministry of Finance of Russia No. 10n and the Federal Commission for the Securities Market of Russia No. 03-6/pz). The same Procedure is also used by companies of other organizational and legal forms, in particular LLCs (letters of the Ministry of Finance of Russia dated January 27, 2010 No. 03-02-07/1-27, dated December 7, 2009 No. 03-03-06/1/791) .

Please note that there is a risk of debt forgiveness being reclassified as a gift within a group of companies. And donation between legal entities- a void transaction (subclause 4, clause 1, article 575 of the Civil Code of the Russian Federation) with all the ensuing consequences (clause 8, article 250 of the Tax Code of the Russian Federation). But the Presidium of the Supreme Arbitration Court of the Russian Federation directly recognized the possibility of forgiveness of debt between companies (Resolution No. 2833/10 dated July 15, 2010).

But tax authorities may make another claim. Allegedly, as a result of debt forgiveness, no gratuitous transfer of property occurs, therefore, this operation, in whole or in part (in the amount of interest - letter of the Federal Tax Service of Russia dated 02.05.12 No. ED-3-3/1581@) does not fall under the benefit. But the courts do not agree with this approach (resolution of the Federal Arbitration Court of the West Siberian District dated December 22, 2011 No. A27-4570/2011).

Let us note that previously affiliated companies had the opportunity to transfer assets to each other in a tax-free regime (subclause 11, clause 1, article 251 of the Tax Code of the Russian Federation). However new option(Subclause 3.4, Clause 1, Article 251 of the Tax Code of the Russian Federation) has a number of advantages.

Firstly, the size of the participant’s share for using the benefit provided for in subclause 3.4 of clause 1 of Article 251 of the Tax Code of the Russian Federation does not matter (letters of the Ministry of Finance of Russia dated 04.20.11 No. 03-03-06/1/257, dated 03.21.11 No. 03- 03-06/1/160, Federal Tax Service of Russia dated 05/23/11 No. AS-4-3/8157@). Secondly, even if the subsidiary transfers the received property to third parties, it will not lose the right to the benefit (letters from the Ministry of Finance of Russia dated 04.18.11 No. 03-03-06/1/243, dated 02.20.12 No. 03-11-06/ 2/26). Thirdly, the risk of recognizing forgiven interest in the borrower’s income is reduced. Since subclause 3.4 of clause 1 of Article 251 of the Tax Code of the Russian Federation applies not only to property received free of charge, but also to property rights.

Perhaps the only drawback of the new benefit is the restrictions on the number of persons who can use it. It can be used to increase the net asset value of a subsidiary only. While subclause 11 of clause 1 of Article 251 of the Tax Code of the Russian Federation allows the debts of the parent company to be forgiven.

In what form is it compiled? Despite the fact that debt forgiveness can be a unilateral transaction (Article 415 of the Civil Code of the Russian Federation), it is best to draw up a bilateral written agreement between the creditor and the debtor. The agreement is concluded in the same form as the contract under which obligations are terminated (clause 1 of Article 452 of the Civil Code of the Russian Federation).

What must be in the document. This agreement must specify under which agreement the debt was created, its size, repayment date, and for what reason the debtor cannot fulfill its obligations. As well as the focus of debt forgiveness on replenishing the company’s net assets and the business purpose of such replenishment.

Additional security measures. In order to avoid possible claims from tax authorities, it is necessary to fulfill all the requirements of subclause 3.4 of clause 1 of Article 251 of the Tax Code of the Russian Federation. In addition to the agreement, the company should also draw up corporate documents on the basis of which the debt will be forgiven. For example, the minutes or decision of the general meeting of participants or shareholders of the company. Under which property, property or moral rights are transferred to a company to increase the net asset value.

It is also advisable to indicate in the protocol what the purpose of increasing the value of the company's net assets is. With the help of such a document, the company will most likely be able to remove the claims of controllers without bringing the matter to trial.

Also, when using debt forgiveness within a group of companies, it is necessary to evaluate the total tax savings due to the impossibility of taking into account the amount of the debt in the expenses of the forgiving party. Since controllers will consider such a transaction as a gratuitous transfer of funds (clause 16 of article 270 of the Tax Code of the Russian Federation). Therefore, a group of companies should determine the qualifications of such a transaction and the benefit used. If the debtor does not include the amount of debt as income, then the creditor should exclude this amount from expenses for tax purposes.