A fresh analytical section was prepared.

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

The practice of applying these norms is almost established. Less and less often, tax authorities charge income tax, calling the transfer of property within a Group of companies a gift prohibited between legal entities. However, there are some fundamental nuances that affect the success of the entire procedure for transferring assets, including taking into account changes made to the Tax Code of the Russian Federation.

Let us remind you that tax-free transfer of assets between related companies can be different and includes, for example, such methods as contribution to the authorized capital, reorganization in the form of spin-off, etc.

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

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

If the charter of the receiving party is standard and does not contain detailed norms, then contribution to the property is possible only in money and only in proportion to all participants (shareholders). In an LLC, the decision on a contribution to property is made by no less than 2/3 of the votes. In a joint stock company, making a contribution is possible on the basis of an agreement approved by the Board of Directors, or by decision general meeting shareholders.

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

1. Gratuitous transfer of property on the basis of subclause 11, clause 1, article 251 of the Tax Code of the Russian Federation.

It itself is possible in two forms:

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

"daughter's gift" This is a transfer from a subsidiary to the parent company, which owns more than 50% of the authorized capital"daughters".

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

In other words, the Tax Code differentiated these grounds, including by the time of their appearance in the law, giving them some specific application features.

1. Gratuitous transfer of property under subclause 11, clause 1, art. 251 Tax Code of the Russian Federation

Firstly, only property can be transferred. Money refers to property.

That is, this rule does not apply to property and non-property rights (assignment of claims, corporate rights, intellectual property rights, etc.). Violation of these conditions will result in additional amounts of income tax, penalties and fines.

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

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

In other words, significant restrictions are imposed on the use of property: it cannot be sold, leased or otherwise disposed of. The logic of the legislator is clear - some kind of assistance from a participant in his company is exempt from taxation, because he transferred the property for her own use, and not for renting out, for example.

As a result, the transfer of assets on the basis of clauses. 11 clause 1 art. 251 Tax Code in certain situations seems impossible. However, these restrictions do not apply to deposits in accordance with subparagraph. 3.7 clause 1 art. 251 NK.

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

Subp. 3.7. clause 1 art. 251 of the Tax Code allows the investments of participants, both in the form of property and in the form of property or non-property rights, to be exempt from taxation. In this case, the size of the participant’s share does not matter.

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

! Sub-clause 3.7, clause 1 of Article 251 is new and appeared in the Tax Code only in 2018. It replaced the famous sub-clause 3.4, which was popularly called “contribution to increase net assets" Sub-clause 3.7 has a more concise content, referring to civil legislation - you can convey everything that is permitted by the Civil Code of the Russian Federation and special laws.

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

Property, property or non-property rights may be transferred only from the participant (shareholder) the relevant business company. That is, transfer in the opposite direction - from the subsidiary to the parent company - is impossible.

Investments in property are possible only in relation to business entities or partnerships. For example, in production cooperative such a contribution cannot be made without tax consequences.

3. "Daughter's Gift"

The Tax Code allows tax-free transfer of property not only from the “mother”, but also in the opposite direction - from the “daughter” to the company – “mother”. The exemption is provided under sub-clause 11, clause 1 of Article 251 of the Tax Code, subject to compliance with an important condition - the parent company’s share in the authorized capital of the subsidiary is more than 50%.

Important!

It will not be possible to transfer a “child gift” to an individual participant without taxes. Such payment will be equivalent to dividends.

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

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

“Economic relations between the main and subsidiary companies may involve not only investments of the main company in the property of the subsidiary at the stage of its establishment, but also at any stage of its activity. In addition, economic feasibility in relations between a subsidiary and the main company may necessitate the reverse transfer of property. At the same time, the absence of direct reciprocity is a feature of the relationship between the main and subsidiary companies, which from an economic point of view are a single economic entity.”
Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 4, 2012 No. 8989/12.

After this, the Ministry of Finance of the Russian Federation supports the possibility of a “daughter gift” not subject to income tax.

A “subsidiary gift” in some cases is an alternative to paying dividends when the conditions for a tax-free transfer of profit from a subsidiary to the parent organization are not met, in particular:

• the holding period of 365 days has not been met;
• In addition to the majority participant with a share of more than 50%, there are minority shareholders in whose favor you do not want to “distribute profits”: dividends are distributed in most cases proportionally, and such a requirement is not imposed on a “child gift”.

About debt forgiveness

As we have already mentioned, sub. 3.7. clause 1 art. 251 of the Tax Code of the Russian Federation replaced subclause 3.4, which directly provided for the possibility of contributing to property by forgiving a debt by a participant in his organization.

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

Let's figure out whether it is now possible to forgive debt without taxes.

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

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

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

We believe that you can get out of the situation in this way:

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

Makes a decision, but does not implement it.

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

As a result, the obligation subsidiary company repaid to the participant tax-free.

To be on the safe side, in the charter of a subsidiary company, as well as when applying subclause 3.4, which has become invalid, it is advisable to include a provision on the possibility of making contributions to property not only in money.

A spoon of tar. VAT

But what will happen if a participant, for example a company on an OSN, transfers not money, but property as a contribution? Is this transaction subject to VAT? Yes and no. In the sense that the transfer of property itself is not subject to VAT, but the transferring party (if it is on common system taxation) must restore VAT on the residual value of the 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...

How to return a deposit to property

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

Some kind of return on investments made is only possible in the form of dividends. The same as for investments in the form of a contribution to the authorized capital.

However, unlike contributions to the authorized capital, the amount of contributions made to property will not count towards the costs of acquiring a share (shares) upon subsequent sale of the share (shares), exit or liquidation of the company.

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

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

"Underwater rocks"

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

Tax authorities may attempt to deem a transfer of property and/or property/non-property rights between “related” entities to be economically unjustified if a reasonable “business purpose” is difficult to discern.

For example, a new member makes a generous contribution and immediately leaves the company. The tax authority will most likely say that the lender “investor” did not intend to participate in the company’s activities and receive profit from this activity, and his only goal in entering the business was the tax-free transfer of expensive property or funds.

Example taxCOACH®

Let's look at how this tool can work successfully using the example of a case study by experts from the taxCOACH Center for the retail sector. Let's imagine a business that is conducted within a Group of companies. Retail Stores are independent legal entities (and the area of ​​each store allows the use of UTII).

However, what about the profit of each operating point? You can use the investment in property that we already know! Retail companies establish entity(let's designate it as an investment center) and make agreed funds received from the sale of products as contributions to the property. 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.

Transaction form

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

If the transfer of rights to property requires registration, then Rosreestr sometimes requires drawing up a corresponding document - contract (agreement) for the alienation of property, property and non-property rights for investment purposes.

The agreement will need to mention the following:

the transferred object is property, property and non-property rights. The details must allow state registration transfer of rights if necessary, as well as properly place the asset on the balance sheet of the receiving party;

the purposes of the transfer - they must be of an investment nature. This is necessary to emphasize the right to VAT exemption when transferring property;

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

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

Instead of the result, let us once again designate main points:

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

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

Do not forget that in order to make a contribution to property, the company’s Charter must provide for such an opportunity for its participants, including the opportunity to make contributions disproportionate to participation in the authorized capital, as well as with any property, property rights or through debt forgiveness.

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

The authorized capital is a documented amount of funds contributed by the founders when creating their organization. It forms the minimum amount of assets of a legal entity that it needs to carry out its activities. This capital also guarantees the interests of investors and creditors of the organization.

Contributions of property to the authorized capital are made by the founders of limited liability companies and joint stock companies. Moreover, such a contribution can be paid with both tangible and intangible assets.

Features of the deposit

Contributions to the authorized capital with property are made both in the process of creating an organization and when increasing its assets. At the same time, the founders have the right to pay for their share of participation with their money, property, securities, as well as other rights that have a monetary value.

The legislation provides that such contributions do not participate in the formation of the base for income tax, as well as value added tax.

When forming the authorized capital, accounting provides for different procedures for recording such property. The easiest way is to pay for your share of participation in cash. When depositing tangible or intangible assets (non-monetary assets), a certain procedure is followed.

Contributions to the authorized capital with real estate, securities or other valuables are carried out according to a certain scheme. At the first stage, the founder must confirm his rights. He must be the owner of the assets that he is going to transfer to the authorized capital. Next, the transfer of valuables is documented by signing a special acceptance certificate. You should also decide whether you need to seek the help of a third-party appraiser.

Property valuation

Using a certain technology, a contribution to the authorized capital is made with property. The assessment of non-monetary values ​​is carried out by an external specialist. This approach is established by law. The assessment (except for cash) is carried out by an expert in any case, regardless of the size of the contribution. Previously, the law was in force that if the share of the participant’s contribution to the authorized capital is less than 20 thousand rubles, the owner can determine the value independently. However, since 2014 this law has been repealed.

If the organization resorts to the help of an independent appraiser, this specialist and the participant who transfers non-monetary property are liable for 3 years (from the date of registration of the organization) financial liability. Moreover, it exceeds the value of the deposit. This is necessary so that the independent appraiser does not overestimate the value of the participant’s property. If the company subsequently incurs debts to creditors due to an incorrect procedure for depositing valuables, both the organization itself and the involved expert will be liable for such obligations.

The deposit is accepted at the residual value. The authorized capital with property (VAT in this case is not deducted) is replenished in accordance with the tax accounting of the participant. This takes into account additional costs associated with the transfer of property or rights. They are defined as part of the contribution to the authorized capital.

VAT deduction

As mentioned above, property tax is not deducted when shares are contributed by company members. Contribution to the authorized capital is not subject to VAT. However, in some cases it may be subtracted from the amount of deposited values. For example, if such property is subsequently used by the organization in activities that are subject to VAT by law. It is restored by the transferring party, but only if these amounts are highlighted in the documentation.

In this case, there is no need to issue an invoice. Only the organization's purchase book records the relevant transfer documents. Copies of these must also be kept in the journal of invoices received. The tax amount is deducted after the values ​​are accepted onto the organization’s balance sheet.

If the restored tax was not actually paid by a participant in the organization, the company has no right to pay this amount. This is established by law and is suppressed in judicial procedure. VAT amounts are accepted for deduction only if the persons who made the contribution previously lawfully accepted them for recovery.

Individuals do not have the right to recover VAT when depositing tangible and intangible assets. They are not initially payers of such tax. Even if this amount is highlighted in the documents when transferring property, the company does not have the right to take them into account.

Payment instructions

If a participant wishes to make a minimum contribution to the authorized capital of the company, he can only do so in cash. This law has been in force since 2014 in the Russian Federation. An additional contribution to the authorized capital with property can only be made if the participant has previously contributed a sum of money in the amount of 10 thousand rubles. At the same time, it is not necessary to pay your share of participation in intangible assets. Only a cash contribution will be enough.

If the founders have decided to contribute some share to the authorized capital with property, they must adhere to certain instructions. At the first stage, the participants unanimously approve the monetary value of the values ​​that are transferred to the fund of their organization.

After this, an independent expert evaluates such property. After an external specialist has carried out his work, the participants of the company must sign the act. It is compiled based on the results of the assessment.

Data on the value of the share contributed in this way are also reflected in the relevant documentation. If there is only one founder, this information is indicated in the decision. An agreement and protocol are drawn up for two or more participants.

Next, the company is registered. After signing the relevant documents, all participants must transfer a specified amount of valuables to the fund of their organization. In this case, it is drawn up according to in the prescribed form Act. The legislation prohibits the contribution of property that is pledged to the authorized capital, or borrowed funds creditors, insurance companies, etc.

Accounting entries

The contribution to the authorized capital of property is reflected in accounting in a certain way. Postings for both money and other valuables use account 75 and the subaccount “Settlements with founders”.

The entries in this case correspond to the debt of the participants in the debit of subaccount 75. Until the company participant has repaid them, they are listed here. When the required share is contributed to the authorized capital, this amount will be reflected on the loan as a repaid debt of the debtor. It will be equal to the documented residual value of the deposits.

If the company has limited liability, its fund must be paid at least half upon creation. If the participants develop a debt to pay the established share, it is reflected in accounting by posting to account 75 (Debit) and account 80 (Credit). Data on amounts are taken from the relevant signed documentation. The amount of account 80 corresponds to the amount of capital established for contribution, which is fixed when the organization is created.

In this case, when paying the established share in money, the transaction will be simple. It is reflected in account 50 (Debit) and account 75 (Credit). However, the procedure for accounting for non-monetary values ​​that the founder transfers to the organization is more complicated.

Accounting for transferred property

It is somewhat more difficult to reflect the contribution to the authorized capital with property in accounting. Postings in this case will be carried out in accordance with the “Fixed Asset Accounting” standard.

In this case, at the first stage, the compliance of the transferred values ​​with the established characteristics of fixed assets is checked. After this, the transferred property is placed on the balance sheet. Regardless of its type, values ​​in fixed assets are entered at their original cost. In this case, the source of its receipt is taken into account.

The initial cost is formed based on the results of an independent expert assessment. It corresponds to their monetary price, which was approved by all participants in the organization. This also includes expenses that arise during the registration of rights, delivery and commissioning of this property.

To summarize the results of accounting for the costs of accepting fixed assets that the participant transfers to the organization, the account “Investments in non-current assets” (account 08) is used in accounting. Therefore, account 75 will subsequently correspond with it. Postings are not made directly to the “Fixed Assets” account (account 01).

Example of accounting entries

The founder's contribution to the authorized capital with property must be correctly reflected in the accounting records. To avoid mistakes, you should consider the entire procedure using a specific example. For example, Konstruktor LLC registered its authorized capital in the amount of 300 thousand rubles. The first founder paid for his share by contributing a car to the general fund. An expert assessment carried out before the transfer of this property established that the market value of the car is 50 thousand rubles.

After signing the relevant documentation (the list was presented above), the accountant must correctly display this operation. The company displays information using the previously presented transactions. In this case, the accountant makes the following entries.

Debit 75 Credit 80. In this case, the amount is 300 thousand rubles. is reflected in accounting as registered capital and at the same time the debt of the organization’s participants.

After this, the property as a contribution to the authorized capital (50 thousand rubles) should be displayed as part of fixed assets. The posting is made: Debit 01 Credit 08.

The presented actions are carried out on the basis of documents for the transfer of material assets.

Contribution to a joint stock company with property

Contribution to the authorized capital by property is not provided for by law for joint stock companies. However, there is no prohibition on carrying out such a procedure. Therefore, the features of this process should be considered. If the shareholder is a legal entity and he wishes to contribute non-monetary assets to the authorized capital, some discrepancy arises.

The legislation provides that the gift of material assets between commercial organizations cannot exist. This even applies to parent or subsidiary companies. However, formally the Tax Code allows for the gratuitous transfer of property. However, there is no specification for which organizations this is possible.

Therefore, in some cases, for joint-stock companies, the analogy of introducing tangible and intangible assets into the authorized capital is used. There are only some restrictions on donations.

Shareholders may be interested in increasing the authorized capital of their company. At the same time, they expect net profit growth and dividend payments. However, the transfer of property in this case is considered free of charge. Moreover, the cost of these values ​​can also be excluded from the tax base. Such property should not be transferred to third parties during the year.

If the property received by the joint-stock company to form the authorized capital is leased, pledged or in another form, the tax benefit will not apply.

Payment for a share of the right to use property

Contributions to the authorized capital of an LLC with property can be made in a slightly different form. It is not the material assets themselves that can be transferred, but only the right to use them. For an LLC, this option is possible. However, with this method of paying for shares, some difficulties are possible.

For example, a situation may occur when the right to use property ends earlier than agreed upon by the founders. In this case, the lease agreement expires. It is established by law that if such a situation arises, a participant who transfers the right to use property as payment for his share, at the request of the founders, is obliged to compensate for the loss in the form of depositing funds. The amount will be equal to the rental fee for movable or immovable property. Moreover, such transfer of funds is carried out under the same conditions that were initially established before the expiration of the previously established period of use. However, the contribution of property to the authorized capital is considered preferable.

Compensation is provided as a lump sum, but within a reasonable time frame. The repayment period is established from the day the founders present their claims. Participants may choose another method of providing compensation. This decision is documented in the minutes of the general meeting. In this case, the participant to whom the demands are made does not participate in the voting.

Proof of payment

The contribution of property to the authorized capital made by the founders must be documented. Such information is stored in the created organization.

However, each participant must also receive documents confirming his share in general fund organizations. They must be properly formatted. This is evidence of the contribution of property or the rights to use it by the participants of the organization.

First of all, the founder must receive an extract from the organization’s current account, as well as copies of payment documents, an act of acceptance and transfer of tangible or intangible assets. Also, each member of the company must be aware of the provisions of the charter. It indicates the fact of full payment of the authorized capital.

At the same time, the balance sheet should not contain information about incomplete payment authorized capital OOO. Also, proof that the participant has contributed his share is the receipt of a receipt for the cash receipt order.

Having considered what a property contribution to the authorized capital is, as well as the procedure for making it, you can understand the mechanism for carrying out such an operation for various organizations.

If for current activities Organizing your own resources is not enough; participants can help fill the gap. You can arrange for assistance in different ways: increase the authorized capital, make a contribution to the property of the LLC, or simply transfer assets free of charge. Each option has its pros and cons. Increasing the authorized capital is a rather complicated procedure: it will be necessary to hold a general meeting of participants twice, make changes to the charter and register them. From this point of view, free assistance is the simplest option. But LLC participants can take a different route by obtaining assistance in the form of a contribution to property. In certain cases, from a tax perspective, this is more profitable than assistance received free of charge.

We'll tell you what you need to pay attention to so that you don't have to overpay taxes.

Accounting with the transferring party

Accounting

According to the recommendations of the Ministry of Finance, when recording transactions for making contributions to property subsidiary company it is necessary to be guided by PBU 10/99 “Organization expenses” Letter of the Ministry of Finance dated January 29, 2008 No. 07-05-06/18 (section “Provision by the audited entity of information on the contributions of participants of a limited liability company to the company’s property”). If you follow these recommendations, the transfer of property should be reflected in the debit of account 91-2 “Other expenses” in correspondence with the credit of the accounts of the transferred property.

However, there is another approach to accounting for such an operation: contributions to the company’s property must be taken into account as part of financial investments.

EXPERIENCE EXCHANGE

INOZEMTSEV Oleg Valerievich

Chief Specialist of the International Financial Reporting Department of JSC Hals-Development

“ If an organization (investor) owns 100% of the share capital of another organization (investment object), then the investor’s contribution to the property of the investee in the investor’s reporting (both according to IFRS and Russian PBU) is reflected as part of the investment (financial investment). That is, a contribution to the company’s property (as well as material assistance to a subsidiary, a contribution to increase net assets, etc.) is reflected in exactly the same way as a contribution to the authorized capital.

Indeed, the user of the investor company’s reporting does not care at all whether changes were made to the constituent documents (priority of content over form). All that matters to him is that the investee has received additional assets and will use them in its activities to make a profit.

If we think from the point of view of Russian accounting, it may seem that such an accounting procedure contradicts the first condition for accepting accounting assets as financial investments para. 2 clause 3 PBU 19/02- the presence of properly executed documents confirming the existence of the organization’s right to financial investments and the right to subsequently receive funds or other assets from these financial investments.

However, it is not. The investor has properly executed documents confirming the transfer of property to the investment object. In addition, the investor has constituent documents for the investment object or documents confirming the acquisition of the share. All this together gives the investor the right to receive future money or other assets from the investee.

If the investor owns a share of less than 100%, then the contribution to the property of the investee will be made by all investors in proportion to their share in the investee. And each investor will reflect his contribution as described above, that is, as part of the investment.

This approach is used because investors' proportional contribution does not change their ownership interest in the investee. The real value of each investor's investment immediately after the contribution will increase by at least the amount of his contribution (otherwise no one would make such a contribution under normal circumstances), or even more. Of course, in the future this investment may depreciate, but these are issues of subsequent accounting, and not the initial recognition of the investor’s contribution to the property of the investment object.”

VAT

If the contribution to the property is made in money, then no difficulties arise, VAT is not charged. But when transferring other assets (goods, materials, fixed assets, etc.), the participant must accrue and pay VAT to the budget on their market value and subp. 1 clause 1 art. 146, paragraph 2 of Art. 154 Tax Code of the Russian Federation. At least that’s what the Ministry of Finance thinks Letters of the Ministry of Finance dated 08/21/2013 No. 03-07-08/34198, dated 07/15/2013 No. 03-07-14/27452. According to officials, the transfer of property in this situation is recognized as a sale and, accordingly, is subject to VAT.

But one may not agree with the opinion of the Ministry of Finance. The fact is that the transfer of property in this case is of an investment nature, and therefore is not recognized as a sale. subp. 4 p. 3 art. 39 Tax Code of the Russian Federation. Therefore, there is no need to charge VAT here. But with this approach, it is necessary to restore the VAT that was accepted for deduction earlier when purchasing property and subp. 2 p. 3 art. 170 Tax Code of the Russian Federation. Let us remind you that on goods and materials, VAT is restored in full (therefore, most likely, the investment organization will not receive any benefit from recognizing the transaction). But for fixed assets, only that part of the VAT that falls on its residual value is restored. Therefore, if you transfer an expensive fixed asset and its residual value is very different from the market one, recognizing the operation as an investment is much more profitable from a tax point of view. Organizations that are ready to argue with tax authorities will find it useful to know that arbitrage practice In this matter, we are on the side of taxpayers. According to the arbitrators, a participant’s contribution to the property of a subsidiary is an investment transaction and is not subject to VAT Resolution of the Federal Antimonopoly Service of the Eastern Military District dated December 3, 2012 No. A29-10167/2011; FAS Central Election Commission dated February 20, 2007 No. A-62-3799/2006. If you adhere to this position, then in accounting it is better to consider the contribution to property as part of financial investments.

Income tax

From a profit tax perspective, making a contribution to the property of a subsidiary is considered a gratuitous transfer. Therefore, the cost of the transferred property (including money) is not taken into account when calculating income tax. Likewise, the costs associated with such a transfer are not taken into account (for example, the costs of delivering goods from the parent company to the subsidiary) clause 16 art. 270 Tax Code of the Russian Federation; Letters of the Ministry of Finance dated May 10, 2006 No. 03-03-04/1/426, dated March 14, 2006 No. 03-03-04/1/222.

Let's talk separately about writing off accrued or restored VAT. There are two options for accounting for it.

OPTION 1 (risky). This VAT is reflected as part of other expenses of the organization and subp. 1 clause 1 art. 264, sub. 2 p. 3 art. 170 Tax Code of the Russian Federation; Resolution of the Federal Antimonopoly Service of the Eastern Military District dated March 18, 2011 No. A82-8294/2008.

OPTION 2 (safe). We do not take VAT into account in expenses. The fact is that tax authorities, as a rule, recognize such VAT as costs directly related to the gratuitous transfer. And they, as we have already said, do not reduce the income tax base. clause 16 art. 270 Tax Code of the Russian Federation.

Accounting with the receiving party

Accounting

In the accounting records of a subsidiary organization, receipt of assistance from participants is reflected in the debit of the property accounting account and the credit of account 83 “Additional capital” Letters of the Ministry of Finance dated January 29, 2008 No. 07-05-06/18, dated April 13, 2005 No. 07-05-06/107. At what cost should the received property be reflected? In current regulatory documents Accounting does not say this. In our opinion, such property should be taken into account at market value (that is, in the same way as something received free of charge) clause 7 PBU 1/2008.

Income tax

The tax code allows no income tax to be paid on any property received from participants, provided that the purpose of such transfer is to increase the net assets of the recipient company. Moreover, this rule applies regardless of the share of participation in the authorized capital of the organization and subp. 3.4 clause 1 art. 251 Tax Code of the Russian Federation; Letter of the Ministry of Finance dated April 20, 2011 No. 03-03-06/1/257. Therefore, in documents relating to making contributions (and this is primarily a decision of the participants), it must be explicitly stated: “The purpose of making contributions is to increase the net assets of the subsidiary.”

WE WARN THE MANAGER

To avoid having to overpay income tax, the decision of the general meeting of participants must directly indicate that The purpose of making contributions to property is to increase the net assets of the subsidiary.

If such a purpose is not indicated in the documents, the assistance received will not be subject to income tax only when subp. 11 clause 1 art. 251 Tax Code of the Russian Federation:

• the founder's share in the authorized capital of the subsidiary is more than 50%;
• The received property (except money) will not be transferred to third parties during the year (sold, leased, pledged) Letter of the Ministry of Finance dated 02/09/2006 No. 03-03-04/1/100).

If you received a fixed asset as a contribution to property, it can be depreciated. The initial cost of such an asset will be equal to its market price (but not lower than the residual value of this asset in the tax accounting of the parent company) clause 1 art. 257, paragraph 8 of Art. 250 Tax Code of the Russian Federation; Letter of the Ministry of Finance dated April 28, 2009 No. 03-03-06/1/283. However, you cannot apply bonus depreciation to these fixed assets. clause 9 art. 258 Tax Code of the Russian Federation.

But upon receipt of materials or goods, their tax value will be zero. Therefore, when writing off materials for production or selling goods in tax accounting, their cost cannot be taken into account as expenses, even if you recorded income when receiving them. Letters of the Ministry of Finance dated September 26, 2011 No. 03-03-06/1/590, dated February 7, 2011 No. 03-03-06/1/80.

If the contribution to the company’s property is made in money, there are no difficulties. Everything you purchase with this money will be taken into account as usual.

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

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

Why were the changes needed?

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

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

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

A little history

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

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

New article

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

Document fragment

Collapse Show

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

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

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

The whole emphasis is on the contract

Deposits must be transferred on the basis of an agreement concluded between the shareholder and the company. This agreement does not provide for any consideration from the JSC. But it cannot be considered a gift agreement. The Presidium of the Supreme Arbitration Court of the Russian Federation, in the already mentioned resolution of December 4, 2012 No. 8989/12 in case No. A28-5775/2011-223/12, explained this by the peculiarities of the relationship between “mother” and “daughter”, which from an economic point of view constitute a single economic entity.

Nevertheless, until recently, Rosreestr could qualify a shareholder’s contribution to the company’s property as a gift and refuse to register the right (if it is subject to registration). The argument given by Rosreestr specialists is extremely simple: in relations between companies, donation is prohibited (subclause 4, clause 1, article 575 of the Civil Code of the Russian Federation). And then the shareholder had to prove his case in court (see, for example, the decision of the Arbitration Court of the Central District dated March 2, 2016 No. F10-116/2016 in case No. A14-7898/2015).

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

A sample agreement is given in the Example.

Collapse Show

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

For your information

Collapse Show

Non-public are those joint stock companies, shares (issue securities, convertible into shares) which cannot be offered for purchase to an unlimited number of persons (Clause 2, Article 7 of the Law on JSC). Previously, non-public joint-stock companies were called closed joint-stock companies.

Deposits and property of non-public joint-stock companies

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

Firstly, the charter of a non-public JSC may provide that, by decision of the general meeting, shareholders obliged make a contribution to the property, and the procedure, terms and grounds for contribution are established. The decision on “forced” making of deposits must be made unanimously (paragraph 2, paragraph 3, article 32.2 of the Law on JSC).

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

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

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

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

In all three cases, contributions are made:

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

For your information

Collapse Show

The obligation to contribute to the property of a non-public JSC rests with those persons who were shareholders on the date of adoption of the relevant decision (paragraph 6, paragraph 3, article 32.2 of the Law on JSC). Therefore, a person who subsequently ceases to be a shareholder is not relieved of the obligation to contribute to the property.

Taxation

In the explanatory note, the authors of the amendments to the Law on JSC propose that when taxing contributions to property, one should be guided by subsection. 11 clause 1 art. 251 Tax Code of the Russian Federation. It says that when determining the income tax base, income in the form of property (including money) received free of charge from:

• "mother" or "daughter". To determine “motherhood”, the criterion of ownership of more than half of the authorized capital is used;
• "physics", owning more than 50% of the authorized capital.

The main thing is that the property received (money does not count) is not transferred to third parties during the year.

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

Publication

Contributions to the authorized capital

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

Contributions to the authorized capital can be cash, securities, property, property and other rights that have a monetary value.

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

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

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

Payment for shares/shares

When paying for shares (shares) in cash, no controversial issues arise. When making non-monetary contributions to pay for shares (shares), the following points must be taken into account.

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

Property received as a contribution to the authorized capital of an organization is accepted at cost (residual value) for profit tax purposes. The cost (residual value) is determined according to the data tax accounting from the transferring party on the date of transfer of ownership of the specified property (property rights), taking into account additional expenses that, with such payment (contribution), are made by the transferring party, provided that these expenses are defined as a contribution (contribution) to the authorized (share) capital. If the receiving party cannot document the value of the contributed property (property rights) or any part thereof, then the value of this property (property rights) or part thereof is recognized as zero.

As mentioned above, contributions to the authorized capital are not subject to VAT.

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

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

These same documents (copies thereof) must be stored in the journal of received invoices (paragraph 4, paragraph 5 of the Rules). By virtue of clause 8 of Art. 172 of the Tax Code of the Russian Federation, these deductions are made after the registration of property received as payment for a contribution to the authorized capital. This rule is relevant only if the taxpayer accepted the specified amounts of VAT for deduction (for example, he could use the simplified tax system and not pay VAT at all).

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

Contribution of property to the authorized capital by an individual

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

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

However, even if the VAT amount is allocated, the company has no right to deduct it. Thus, in a specific case, the only participant in the Company, an individual, transferred property as a contribution to the authorized capital. The courts rightfully indicated that this individual, not being a VAT payer, had no right to claim VAT (paid when purchasing goods) as a deduction. Accordingly, this individual did not need to restore the amount of VAT in accounting, since this amount was not and could not be presented for reimbursement from the budget by an individual who does not have the status of an entrepreneur and is not a VAT payer (Resolution of the Federal Antimonopoly Service of the North-Western District dated August 29, 2008 No. A42-5628/2007).

A definite minus this method financing is that if at the end of the second and each subsequent financial year the value of the company’s net assets is less than its authorized capital, the company is obliged to announce a reduction in its authorized capital to an amount not exceeding the value of its net assets and register such a decrease in in the prescribed manner. If, after this period, the value of the net assets is less than the minimum amount of the authorized capital, then the company is subject to liquidation (clause 3 of Article 20 of the Federal Law of 02/08/98 No. 14-FZ “On Limited Liability Companies”, hereinafter referred to as Federal Law No. 14-FZ; clauses 4, 5, article 35 of the Federal Law of December 26, 1995 No. 208-FZ “On Joint-Stock Companies”, hereinafter referred to as Federal Law No. 208-FZ).

Judicial practice here follows the path of providing society with the opportunity to improve its financial position. For example, the court determined that the interrelated provisions of paragraph 4 of Art. 99 of the Civil Code of the Russian Federation and Part 3 of Art. 20 of Federal Law No. 14-FZ do not imply that the company is subject to immediate liquidation as soon as net assets begin to decrease, but allow the founders to accept necessary measures to improve it financial condition. Taking into account the evidence presented that the financial condition of the company is stable, the demands of the tax authority to liquidate the company are unfounded (Resolution of the Ural District dated March 26, 2009 No. F09-1563/09-S4).

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

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

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

Payment for shares (shares) above their nominal value

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

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

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

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

VAT evasion schemes using contributions to the authorized capital

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

The first method is to use a contribution to the authorized capital as a way to evade VAT.

When using a contribution to the authorized capital as a way to evade payment of VAT, the transfer of property to the authorized capital of the company occurs not for the purpose of acquiring shares (stakes) to receive income from investments, but is actually aimed at the alienation (sale) of the company’s property in order to avoid paying VAT on its sale .

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

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

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

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

In this case, the actual goods often remain in the warehouse of the parent organization. In this regard, the resolution of the Federal Antimonopoly Service of the North Caucasus District dated 04/05/2006 No. F08-1281/2006-548A is noteworthy. The court came to the conclusion that the operation to increase the authorized capital with cash and the subsequent payment from these funds for work performed in favor of the organization financing the authorized capital the next day constituted payment of invoices of one organization with invoices of the same organization. For this reason, in this situation there is no statutory condition for VAT refund - payment at the expense of own funds organizations.

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

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

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

there is no requirement to make changes to the constituent documents or carry out any registration procedures with the Federal Tax Service and the Federal Financial Markets Service of Russia 1 ;

there is no requirement to involve an independent appraiser when making contributions to the company’s property;

subject to subclause 11 clause 1 art. 251 of the Tax Code of the Russian Federation, the company does not have taxable non-operating income;

there is no tax base for VAT;

The legislation does not contain restrictions on the size and frequency of deposits.

Legal regulation

The possibility of making contributions to the company's property is provided for in Art. 27 Federal Law No. 14-FZ. To implement it, it is necessary that the obligation to make contributions to the company’s property is contained in the LLC Charter.

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

It is necessary to consider this legal institution from a civil and tax point of view. From the point of view of corporate law, a contribution to the company’s property is not a gratuitous transfer of funds, since it increases the actual value of the share that each participant has the right to demand upon leaving the LLC. This conclusion is confirmed by materials of judicial practice (decrees of the FAS Moscow District dated January 23, 2006 No. KA-A40/13961-05-P, dated March 9, 2007 No. KA-A40/875-07, FAS West Siberian District dated May 4, 2006 No. F04 -5209/2005(22104-A27-3)).

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

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

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

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

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

In this case, the received property is not recognized as income for tax purposes only if, within one year from the date of its receipt, the specified property (except for cash) is not transferred to third parties.

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

Contribution to JSC property

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

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

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

When considering this situation, it is necessary to take into account that the Tax Code of the Russian Federation does not regulate civil law relations - it can only determine their tax consequences.

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

But, despite this, the risk of declaring this transaction invalid in court cannot be ruled out (resolution of the Federal Antimonopoly Service of the Moscow District dated December 5, 2005, November 18, 2005 No. KA-A40/11321-05).

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

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

The benefit provided by sub. 1 clause 1 art. 251 of the Tax Code of the Russian Federation, according to which received property is not recognized as income for tax purposes, is valid under the condition that within one year from the date of its receipt, the specified property (except for funds) is not transferred to third parties. As can be seen from the above norm, problems arise if property was transferred in non-monetary form. Which problematic situations may arise here?

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

If the received property is transferred for rent, trust management, use, pledge, as well as when transferring property on any other right that does not entail a transfer of ownership, the taxpayer does not have the right to apply the benefits provided for in subsection. 11 clause 1 art. 251 Tax Code of the Russian Federation. Confirmation of this is contained in the letter of the Ministry of Finance of Russia dated 02/09/2006 No. 03-03-04/1/100.

There is also judicial practice confirming this position, for example, resolution of the Federal Antimonopoly Service of the Moscow District dated September 1, 2008 No. KA-A40/8012-08. According to the court, a taxpayer who transfers property for free use cannot apply the benefit under subsection. 11 clause 1 art. 251 Tax Code of the Russian Federation.

A person who contributed to the company’s property did not fully pay for his share (share)

Failure to pay a share in the authorized capital of an LLC does not affect the application tax benefit subp. 11 clause 1 art. 251 Tax Code of the Russian Federation. This is confirmed by multiple judicial practices. Thus, the arbitration court noted that “Art. 251 subp. 11 clause 1 of the Tax Code of the Russian Federation connects the right to a benefit not with the amount of the actually contributed authorized capital, but with the share of the receiving party in the authorized capital of the transferring party, which must be at least 50% and does not require full payment of the authorized capital at the time of presentation of the benefit" (resolution FAS Moscow District dated June 15, 2006 No. KA-A41/5286-06).

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

The person who contributed to the property of the company has left the membership

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

VAT when making a contribution to the company's property

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

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

Thus, if a contribution to the company’s property is made in cash, the transferor does not have an obligation to pay VAT. The receiving party also has no object of taxation (clause 3 of Article 153 of the Tax Code of the Russian Federation): the funds received are not related to settlements for payment for goods (work, services).

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

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

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

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

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

conclusions

To summarize, we can conclude that each of the considered methods of financing, when used correctly, taking into account a specific situation, can be beneficial. The least risky and most profitable from the point of view of tax consequences can be called such a method of financing as payment of shares (shares) above their nominal value and gratuitous transfer of funds between parent and subsidiary organizations (contributions to the property of the company) subject to the conditions provided for in subsection. 11 clause 1 art. 251 Tax Code of the Russian Federation.

1 Federal Service for Financial Markets of the Russian Federation.