The term “net assets” is well known to economists and accountants. Everyone is aware of it economic sense, but not everyone knows why they need to increase net assets and how to do it. This is exactly what we will look at in this article.
Domestic legislation with a value net assets connects both, for example, the size of the organization’s authorized capital and the ability to pay funds when the authorized capital is reduced, and in general the possibility of the further functioning of the enterprise.
Thus, if the value of the company’s net assets remains less than its authorized capital at the end of the reporting year following the second reporting year or each subsequent reporting year, at the end of which the value of the company’s net assets was less than its authorized capital, the company no later than six months after the end the corresponding reporting year is required to make one of the following decisions:
- on reducing the authorized capital of the company to an amount not exceeding the value of its net assets;
- on the liquidation of the company.
These are the norms of paragraph 6 of Article 35 Federal Law dated December 26, 1995 No. 208-FZ “On joint stock companies ah" (hereinafter referred to as the Law on Joint Stock Companies).
And if at the end of the second reporting year or each subsequent reporting year the value of the company’s net assets turns out to be less than the minimum authorized capital, the company no later than six months after the end of the reporting year is obliged to make a decision on its liquidation (Clause 11, Article 35 of the Law on Joint Stock Companies societies).
Similar rules apply to companies with limited liability contained in paragraph 4 of Article 30 of the Federal Law of 02/08/1998 No. 14-FZ “On Limited Liability Companies” (hereinafter referred to as the Law on Limited Liability Companies). The same requirements are included in Articles 90 and 99 Civil Code RF.
Let us remind you that the size of the authorized capital of a limited liability company should not be less than 10 thousand rubles (Clause 1, Article 14 of the Law on Limited Liability Companies). Minimum authorized capital public company should be 100 thousand rubles. The minimum authorized capital of a non-public company must be 10 thousand rubles (Article 26 of the Law on Joint Stock Companies).
Is it really dangerous for a decrease in net assets to be less than the amount of authorized capital in practical activities?
The Constitutional Court of the Russian Federation, in Resolution No. 14-P dated July 18, 2003, recognized the norm contained in the interrelated provisions of paragraph 4 of Article 99 of the Civil Code of the Russian Federation and paragraphs 5 and 6 of Article 35 of the Law on Joint Stock Companies, on the basis of which a joint stock company is subject to liquidation by a court decision, if the value of his net assets becomes less than certain by law minimum size authorized capital that does not contradict the Constitution Russian Federation. Since, according to the constitutional and legal meaning of this norm in the system of civil legislation norms, it is assumed that the negative value of net assets as a formal condition for the liquidation of a joint stock company is intended to reflect its actual financial insolvency, namely: lack of profitability, inability to fulfill its obligations to creditors and fulfill payment obligations mandatory payments, despite the fact that shareholders had the opportunity to take measures to improve the financial position of the company or decide on its liquidation in the proper procedure.
A similar approach is used for a limited liability company.
Thus, the company can indeed be liquidated on the grounds in question. True, we admit that this process is not easy and often the courts come to the conclusion that a decrease in the value of net assets below the minimum amount of authorized capital in itself is not an unconditional basis for liquidating the company. Entity, the value of whose net assets by the deadline established by law will be less than its authorized capital, cannot be liquidated on only one formal basis.
note
Reality accounts payable must be carefully monitored regardless of the net asset situation. Accordingly, if within the framework of this control a benefit is also gained in relation to the adjustment of the net asset indicator, then it will be, as they say, “two in one”.
The company is operating, it has no debt on taxes, fees, etc. mandatory payments(resolution of the Federal Antimonopoly Service of the Moscow District dated July 19, 2016 No. F05-9990/2016 in case No. A41-96797/15, dated July 28, 2015 No. A41-74211/2014, dated August 27, 2014 No. A41-49477/13, resolution of the Federal Antimonopoly Service of the Ural District dated February 22, 2017 No. F09-191/17 in case No. A60-33819/2016, resolution of the Federal Antimonopoly Service of the Central District dated October 16, 2015 No. F10-3305/2015 in case No. A64-271/2015).
Nevertheless, such a risk really exists.
In addition, this indicator is carefully influenced credit organizations when considering lending opportunities.
That is, it is clearly visible that net assets are not just some unimportant statistical and technical indicator, but one of the key economic values having an important impact on the activities of the enterprise, along with revenue, gross and net profit.
How can we ensure that this indicator is at the appropriate level?
First, let us remember that the procedure for determining the value of net assets is established by Order of the Ministry of Finance of Russia dated August 28, 2014 No. 84n “On approval of the Procedure for determining the value of net assets.”
The value of net assets is determined as the difference between the value of the organization's assets accepted for calculation (with the exception of receivables of the founders (participants, shareholders, owners, members) for contributions (contributions) to the authorized capital (authorized fund, mutual fund, share capital), for payment of shares ) and the amount of the organization’s liabilities accepted for calculation (with the exception of deferred income recognized by the organization in connection with the receipt state aid, as well as in connection with the gratuitous receipt of property). Accounting items recorded by the organization on off-balance sheet accounts are not taken into account when determining the value of net assets.
Secondly, we will consider all the most optimal methods in order, assessing all their pros and cons.
Reflection in accounting of previously identified surpluses
Surpluses can be generated and identified at each enterprise. However, let's be honest, not every company strives to show them. Indeed, in this case, there is an obligation to charge income tax.
However, the posting of surpluses will not always have such a detrimental effect on the amount of the enterprise’s obligations to the budget. For example, if a company uses a preferential rate of 0%, provided by law. We agree that not everyone can boast of having such legislative benefits, but it doesn’t matter. Even if the company is not an agricultural producer, which, for example, applies a similar rate, it can still safely use the capitalization of surplus, in particular, in a situation where there is a loss. In this case, the income tax will not increase; only the amount of the resulting loss will decrease.
However, in a situation where we are literally talking about saving an organization from liquidation, there is no time for such “savings” at all.
EXAMPLE 1. CAPITAL THE SURPLUS
The authorized capital of Mebeltorg LLC is 15,000 rubles.
To calculate the value of net assets, the following reporting data was taken:
The value of assets is 683 thousand rubles;
The amount of liabilities involved in the calculation is 695 thousand rubles.
Preliminary net assets amounted to 12 thousand rubles. (695 thousand rubles – 683 thousand rubles).
This is less than the authorized capital of the organization (12 thousand rubles.
To correct the situation, surplus inventory items in the amount of 4 thousand rubles were capitalized, which was reflected in the organization’s reporting.
DEBIT 10 “Materials” CREDIT 91 “Other income and expenses”
- 4000 rub. – surpluses identified during the inventory were capitalized.
The value of net assets after capitalization amounted to 16 thousand rubles. (12 thousand rubles + 4 thousand rubles) > 15 thousand rubles).
Thus, capitalization of surplus helps to correct the situation with insufficient net assets.
Write-off of bad accounts payable
An increase in the size of net assets can be influenced not only by an increase in the organization's own assets, but also by a decrease in its liabilities without any costs.
Refusal to write off accounts receivable
Term limitation period applies equally to both accounts payable and accounts receivable. Consequently, after three years or in the event that accounts receivable are recorded as unrealistic for collection, this debt must be written off from the enterprise's records and included as losses.
EXAMPLE 3. DETERMINING THE “RECEIVABLE”
Having carried out an inventory of accounts receivable, the accounting department found out that 92,315 rubles were included in the accounts. accounts receivable that are unrealistic for collection. At the same time, the value of net assets was previously calculated in the amount of 98 thousand rubles. Based on the inventory data, written justification and order (instruction) of the head of the enterprise, this amount was written off to financial results.
DEBIT 91 “Other income and expenses” CREDIT 62 “Settlements with buyers and customers”
- 92,315 rub. – accounts receivable are written off and cannot be collected.
In this case, the value of net assets will become less (98 thousand rubles - 92 thousand rubles) of the authorized capital.
Therefore, before writing off an unrealistic “receivable”, it is necessary to comprehensively assess the impact of this operation on other indicators, in particular, the amount of net assets, as well as the existence of a reasonable opportunity to “hold” such a debt on the books.
Application of optimal methods for calculating depreciation
Order of the Ministry of Finance of Russia dated March 30, 2001 No. 26n “On approval of the Regulations on accounting“Accounting for fixed assets” PBU 6/01” (clause 18) provides for the following methods for calculating depreciation of fixed assets:
- linear method;
- reducing balance method;
- method of writing off the cost by the sum of the numbers of years of the term beneficial use;
- method of writing off cost in proportion to the volume of products (works).
In tax accounting, only linear and non-linear methods of calculating depreciation are accepted, therefore other methods have not received much recognition, since the use different ways in accounting and tax accounting leads to the emergence tax differences and, accordingly, the complication of accounting.
However, the presence of serious reasons can serve as more than a weighty argument for using a different method of calculating depreciation and for complicating accounting.
Similar methods are applied to the depreciation of intangible assets.
Each of the methods used will give different total values of the amounts of accumulated depreciation and, consequently, the residual value of fixed assets and intangible assets. Moreover, it must be taken into account that every action will have double consequences. Thus, large amounts of residual value of fixed assets will negatively affect the goal of optimizing property tax.
For example, the declining balance method is characterized by the fact that it allows initially large amounts of depreciation to be written off as expenses because higher depreciation rates are used. This is beneficial, for example, for calculating property taxes, but will negatively affect the value of net assets. However, gradually the amount of depreciation charges will steadily decrease. And in subsequent years, the use of this method will not be so profitable for calculating property tax, but the situation with respect to net assets will begin to improve.
Therefore, before resorting to any strategy of action, it is necessary to carefully evaluate its impact on other facts economic activity enterprises so as not to get into trouble.
We should not forget about the possibility provided for in paragraph 19 of PBU 6/01 regarding the use of an increasing coefficient. True, in accounting this can only be done in relation to the reducing balance method.
Revaluation of fixed assets, approaches to cost classification
With regard to fixed assets, we can talk about at least two more aspects of their influence on net assets.
We are talking about changes in the initial value of assets, as well as depreciation and revaluation of fixed assets.
In accordance with paragraph 14 of PBU 6/01 “Accounting for fixed assets,” a change in the initial cost of fixed assets, in which they are accepted for accounting, is allowed in cases of completion, additional equipment, reconstruction, modernization, partial liquidation and revaluation of fixed assets.
That is, the amount of net assets depends on how construction and installation costs for fixed assets are spent. If expenses are classified as repairs, they will be written off as a lump sum to the cost of production, thereby reducing the size of net assets. At the same time, the implementation of modernization and reconstruction allows you to increase the initial cost of the existing fixed asset, thereby positively influencing the desired indicator.
In accordance with paragraph 15 of PBU 6/01, a commercial organization can revalue groups of similar fixed assets at current (replacement) cost no more than once a year (at the end of the reporting year).
The results of the revaluation are reflected in the accounting and financial statements of the organization. Changes in the initial value during the revaluation of the corresponding objects are reflected in account 01 “Fixed assets” in correspondence with account 83 “Additional capital”. The results of revaluations of fixed assets are not recognized as income (expense) for tax purposes (paragraph 6, paragraph 1, article 257 of the Tax Code of the Russian Federation).
EXAMPLE 4. RE-ASSESSING THE OS
The organization revaluates fixed assets. At the same time, the amount of fixed assets recorded in account 01 “Fixed assets” is 510,200 rubles. The amount of accumulated depreciation is equal to 152,000 rubles. As a result of the revaluation, the value of fixed assets will increase by 105,000 rubles.
DEBIT 01 “Fixed assets” CREDIT 83 “Additional capital”
- 105,000 rub. – reflects the amount of revaluation of fixed assets.
However, overvaluation is not so simple. There are a number of significant points that seem to be hidden in the little things.
Firstly, when revaluing an item of fixed assets, not only its initial or current (replacement) cost is recalculated, if this object was revalued earlier, but also the amount of depreciation accrued over the entire period of use of the object.
EXAMPLE 5. RECALCULATE DEPRECIATION
Let's use the data from the previous example. As a result of the revaluation, the value of fixed assets will increase by 105,000 rubles. Therefore, it is necessary to proportionally adjust depreciation, which will increase by RUB 31,281.85. (RUB 105,000 : RUB 510,200 × RUB 152,000).
Let us reflect the results of the revaluation in accounting:
DEBIT 83 “Additional capital” CREDIT 02 “Depreciation of fixed assets”
- RUB 31,281.85 – reflects the amount of revaluation of depreciation of fixed assets.
As we all understand, revaluation of depreciation will reduce the effect of revaluation for the purpose of “improving” the net asset ratio. Secondly, having made a revaluation once, the company dooms itself to constant annual revaluations. That is, having made a decision on revaluation, the organization must subsequently revaluate such fixed assets regularly so that the cost of fixed assets at which they are reflected in accounting and reporting does not differ significantly from the current (replacement) cost.
At large quantities fixed assets, the “pleasure” of correcting the situation with the value of net assets will be spoiled due to the annual increase in the volume of accounting work.
Thirdly, in accordance with paragraph 1 of Article 374 Tax Code of the Russian Federation, the object of taxation by property tax for Russian organizations is movable and real estate, taken into account on the organization’s balance sheet as fixed assets. That is, by “correcting the situation” with net assets, the company dooms itself to a certain deterioration in its financial position due to an increase in tax payments on property tax.
Of course, some properties are subject to property taxes from cadastral value asset, but the organization may still incur additional losses from the accrual of property taxes, which will be reduced to some extent due to a decrease in the taxable base for income tax.
Fourthly, the revaluation is carried out at the beginning of the year and therefore the results of the revaluation of fixed assets carried out as of the first day of the reporting year must be reflected separately in accounting. Revaluation results are not included in the data financial statements of the previous reporting year and are accepted when generating balance sheet data at the beginning of the reporting year.
That is, if the situation with net assets is critical at the reporting date (for example, on December 31 of the reporting year), then revaluation will not save the situation. Re-evaluation can only help in the long run.
True, if there is a significant need, the revaluation can be issued “retrospectively”. But not only is this not entirely correct, it will also necessitate adjustments in accounting and, possibly, in property taxes for the entire year.
Free receipt of assets
Compared to revaluation, an action option during which the company will receive assets free of charge can be considered more effective than revaluation. With this option, there are no constant additional labor costs for the same or even greater target effect.
If we are talking about free receipt of assets that do not require state registration, then the organization can independently determine a date convenient for it for the recording of these assets.
note
Before writing off an unrealistic “debt”, it is necessary to comprehensively assess the impact of this operation on other indicators, in particular, the value of net assets, as well as the existence of a reasonable opportunity to “hold” such a debt on the books.
But what about income tax?
Typically, the gratuitous contribution of assets is considered in relation to the founders. Well, who else will make economic sense from such generosity?
In this case, paragraph 11 of Article 251 of the Tax Code of the Russian Federation exempts from taxation income in the form of property received Russian organization free of charge:
- from an organization, if the authorized (share) capital (fund) of the receiving party consists of more than 50% of the contribution (share) of the transferring organization;
- from an organization, if the authorized (share) capital (fund) of the transferring party consists of more than 50% of the contribution (share) of the receiving organization and on the day of transfer of property the receiving organization owns by right of ownership the specified contribution (share) in the authorized (share) capital ( fund);
- from 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 (with the exception of Money) is not transferred to third parties.
That is, if the property is contributed by a founder who meets the listed requirements, then these amounts will not have to be subject to income tax.
It is also necessary to take into account the provisions of Article 251 of the Tax Code of the Russian Federation: property in the form of unclaimed dividends by participants of a business company or partnership or part of the distributed profit of a business company or partnership, restored as part of the retained earnings of a business company or partnership, is also not taxed.
That is, depending on the specific conditions and characteristics documentation transactions can be avoided and tax losses.
Enterprise reorganization
In the specialized literature one can also find proposals for adjusting net assets by reorganizing the company.
This option also has a right to exist. However, one cannot fail to note its increased complexity compared to other methods of action. However, when the organization still faces organizational tasks, it is possible to act in a comprehensive manner and at the same time eliminate the problem of net assets.
As we can see, ways to increase net assets can be different. In addition to the considered methods of action, the value of net assets can be affected by any other actions aimed at obtaining additional profits, capitalization, and not a one-time write-off of expenses.
EXAMPLE 6. WE CONSIDER ADDITIONAL TAX OBLIGATIONS
Universal LLC has a contract with Garant LLC. The contract provides for financial sanctions for violation of the terms and conditions of the agreement. Sanctions do not come into force automatically, but after filing a corresponding claim.
Usually, as a permanent partner, sanctions were not issued to Garant LLC. The partner only received warnings. However, due to the need to resolve the situation with net assets, the management of Universal LLC decided this time to simultaneously discipline the counterparty and eliminate the problem with net assets, taking into account the emergence of additional tax obligations for income tax.
If, despite all the tricks, it was still not possible to increase the value of net assets, then the authorized capital will have to be reduced.
EXAMPLE 7. WE REDUCE AUTHORIZED CAPITAL
The authorized capital of Everest LLC is 50,000 rubles. At the same time, net assets as of the reporting date, according to the calculation, amounted to 45,200 rubles. Thus, the authorized capital should be reduced by 4800 rubles. (RUB 50,000 – RUB 45,200).
The accounting will reflect:
DEBIT 80 “Authorized capital” CREDIT 84 “ retained earnings (uncovered loss)»
- 4800 rub. – the reduction of the authorized capital to the amount of net assets is reflected.
P.S. An increase in assets can be either a forced or a “normal” phenomenon. But in general, if implemented correctly, this can be a very effective measure to increase financial stability enterprise, allowing you to avoid problems with regulatory authorities.
Dmitry Kislov , Ph.D., expert in accounting and taxation
Organization "Alpha", which owns 50% of the authorized capital of organization "Omega", contributes its property (and inventories) to increase the net assets of organization "Omega" by forming additional capital in accordance with paragraphs. 3.4 clause 1 art. 251 of the Tax Code of the Russian Federation based on the protocol general meeting participants. Both organizations are limited liability companies using common system taxation. What are the VAT implications of this transaction for Organization Alpha and Organization Omega? What is tax value of this property for the Omega organization with its further use in production, sale and depreciation?
On this issue we take the following position:
When transferring property in order to increase the net assets of the Omega organization, the transferring party, the Alpha organization, must calculate VAT payable. In this case, the receiving party - "Omega" cannot accept VAT deduction.
For the purposes of calculating income tax:
- the Alpha organization does not take into account the cost of the transferred property and the costs associated with such transfer as expenses;
- Omega organization takes into account expenses depreciation deductions for the received depreciable property based on its original cost, defined as its, and its useful life. At the same time, the cost of the material received - inventories For tax purposes, it is not taken into account as expenses.
In accordance with the provisions of Art. 30 of the Federal Law of 02/08/1998 No. 14-FZ “On Limited Liability Companies” (hereinafter referred to as Law No. 14-FZ), a limited liability company (hereinafter referred to as LLC) must ensure that the value of its net assets corresponds to the size of the company’s authorized capital.
The procedure for increasing the value of an LLC's net assets may be provided for by the company's constituent documents. The law also does not contain a prohibition to increase the value of net assets at the will of the participants.
The procedure for making contributions to the property of an LLC is established by the norms of Art. 27 of Law No. 14-FZ.
Based on paragraph 1 of Art. 27 of Law No. 14-FZ, the participants of the company are obliged, if provided for by the charter of the company, by decision of the general meeting of the participants of the company, to make contributions to the property of the company. Such an obligation of the company's participants may be provided for by the company's charter when the company is founded or by introducing amendments to the company's charter by decision of the general meeting of the company's participants, adopted unanimously by all the company's participants.
As a contribution to the company's property general rule money is transferred, but the charter or decision of the general meeting of the LLC may provide for the possibility of contributing other property, including fixed assets and other material assets (clause 3 of Article 27 of Law No. 14-FZ).
Contributions made become the property of the LLC (Clause 3, Article 213 of the Civil Code of the Russian Federation), but their introduction does not entail a change in the size and nominal value of the shares of company participants in the authorized capital of the company (Clause 4, Article 27 of Law No. 14-FZ). In paragraph 14 of the resolution of the Supreme Arbitration Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 9, 1999 No. 90/14, it is explained that contributions to the property of the company are not contributions to an LLC.
According to specialists from the financial department, a participant’s contribution to the company’s property is considered as a gratuitous transfer of property (letter of the Ministry of Finance of Russia dated May 10, 2006 No. 03-03-04/1/426).
Income tax
Accounting with the receiving party
The object of taxation for income tax for Russian organizations that are not members of a consolidated group of taxpayers is profit, defined as the difference between the income received and the amount of expenses incurred, which are determined in accordance with Chapter 25 of the Tax Code of the Russian Federation (Article 247 of the Tax Code of the Russian Federation).
For the purposes of Chapter 25 of the Tax Code of the Russian Federation, 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 property (property rights) to the transferor (perform work for the transferor, provide services to the transferor) (Clause 2 of Article 248 of the Tax Code of the Russian Federation).
From the letter of the Ministry of Finance of Russia dated May 10, 2006 No. 03-03-04/1/426, which considered the situation with respect to property received free of charge from the founder, income upon receipt of which is not taken into account for profit tax purposes on the basis of paragraphs. 11 clause 1 art. 251 of the Tax Code of the Russian Federation, it follows that the calculation of depreciation on depreciable fixed assets transferred as a contribution to the property of an LLC is carried out in the generally established manner, if this fixed asset meets the criteria for depreciable property established by Chapter 25 of the Tax Code of the Russian Federation.
The fact that OS transferred to the organization by the founders is accepted for tax accounting as depreciable property market value and depreciation on this property is carried out in accordance with the norms of Chapter 25 of the Tax Code of the Russian Federation, as stated, among other things, in an interview with D.Yu. Grigorenko, head of the department of income tax and special tax regimes Tax Administration of the Federal Tax Service of Russia, 1st class adviser to the state civil service of the Russian Federation, in the material “Income Tax: Formation Procedure tax base for half a year. Common mistakes and their correction", published in the Russian Tax Courier (No. 13-14, 15, July, August 2010).
The courts also support this position (see FAS decisions North Caucasus District dated 02/22/2007 No. F08-737/07-290A (by determination of the Supreme Arbitration Court of the Russian Federation dated 06/18/2007 No. 7092/07, the case was refused to be transferred to the Presidium of the Supreme Arbitration Court of the Russian Federation for review in the manner of supervision), FAS Moscow District dated 03/12/2008 No. KA-A40 /1240-08).
The letter of the Ministry of Finance of Russia dated December 5, 2008 No. 03-03-06/1/674 expressed the opinion that fixed assets transferred by the founder of the company are accepted for tax accounting as depreciable property at market value. Depreciation on this depreciable property is calculated in accordance with the provisions of Art. 258-259 of the Tax Code of the Russian Federation (see also letters of the Ministry of Finance of Russia dated April 28, 2009 No. 03-03-06/1/283, dated May 15, 2008 No. 03-03-06/1/318).
However judicial practice after the release of the letter of the Ministry of Finance of Russia dated July 27, 2012 No. 03-07-11/197, we did not find it, therefore, taking into account the opinion expressed in it, it should be understood that the possibility of depreciation of property received by the company to increase net assets may be questioned by inspectors.
The cost of gratuitously received inventories (hereinafter referred to as inventories) when they are written off for production is not taken into account in expenses that reduce the tax base for income tax.
Note that until 2015, there were problems with the valuation of non-depreciable property received free of charge (inventory or goods). The fact is that Art. 254 and 268 of the Tax Code of the Russian Federation did not provide for a procedure for determining the value of gratuitously received MPZ, including those received from the founders.
In a letter from the Ministry of Finance of Russia dated 02/07/2011 No. 03-03-06/1/80, specialists from the financial department explained that, according to clause 1 of Art. 252 of the Tax Code of the Russian Federation, the taxpayer reduces the income received by the amount of expenses incurred (except for the expenses specified in Article 270 of the Tax Code of the Russian Federation).
Expenses are recognized as justified and documented expenses (and in cases provided for in Article 265 of the Tax Code of the Russian Federation, losses) incurred (incurred) by the taxpayer.
Thus, the cost of property received free of charge from the founder, which is not a fixed asset, cannot be included in expenses that reduce the tax base for income tax, since the taxpayer did not incur expenses for the acquisition of this property (for additional information, see the letter of the Ministry of Finance of Russia dated September 26, 2011 No. 03-03-06/1/590).
From 01/01/2015 a new version of the second paragraph of clause 2 of Art. 254 of the Tax Code of the Russian Federation (clause "b" clause 7, part 1 of article 3 of the Federal Law of April 20, 2014 No. 81-FZ), according to which the cost of inventories included in material costs received free of charge is determined as the amount income recorded by the taxpayer in the manner provided for in paragraph 8 of Art. 250 Tax Code of the Russian Federation.
From a direct reading of this norm, we can conclude that in the composition material costs Only those gratuitously received inventories can be taken into account, when recording which non-operating income is taken into account on the basis of clause 8 of Art. 250 Tax Code of the Russian Federation. Since in the situation under consideration the organization does not take into account income in the form of inventories received free of charge from the founder (clause 3.4, clause 1, Article 251 of the Tax Code of the Russian Federation), then, in our opinion, accounting for the cost of such inventories as expenses at the time of their involvement in production or upon sale , may cause claims from tax authorities.
We also note that the wording of the second paragraph of clause 2 of Art. 254 of the Tax Code of the Russian Federation in relation to property received free of charge: “The cost of industrial property... is determined as the amount of income taken into account by the taxpayer...” differs from the wording contained in paragraph 1 of Art. 257 of the Tax Code of the Russian Federation: " Initial cost a fixed asset is determined... as the amount at which such property is valued..."
Taking into account the above, we believe that the Omega organization, for profit tax purposes, can take into account as expenses depreciation charges on a fixed asset received from the founder if it is used in income-generating activities (however, a dispute with the tax authority is not excluded). The cost of the received inventories is not taken into account as expenses that reduce the tax base.
Please note that the explanations authorized bodies and examples of arbitration practice published after the commencement of the action new edition paragraph two of paragraph 2 of Art. 254 of the Tax Code of the Russian Federation, we could not find it.
Income tax on the transferor
From Art. 41 of the Tax Code of the Russian Federation it follows that income for profit tax purposes is recognized as economic benefit in monetary or in kind, taken into account if it is possible to assess it and to the extent that such benefit can be assessed, and determined in accordance with Chapter 25 of the Tax Code of the Russian Federation.
We believe that with the gratuitous transfer of property (fixed assets and inventories) as a contribution to the property of the company, the participating organization does not have an economic benefit, and therefore no income that must be taken into account when forming the tax base for income tax.
Along with this, the participating organization will not be able to take into account in expenses either the residual value of the transferred fixed asset item, or the cost of acquiring inventories, as well as the costs associated with their transfer (clause 16 of Article 270 of the Tax Code of the Russian Federation, letter of the Federal Tax Service of Russia for Moscow dated 02/10/2012 No. 16-15/011515@, in addition see letter of the Ministry of Finance of Russia dated 10/14/2013 No. 03-03-06/1/42727).
The object of VAT taxation is, in particular, transactions involving the sale of goods (work, services) on the territory of the Russian Federation (clause 1, clause 1, article 146 of the Tax Code of the Russian Federation).
For the purposes of Chapter 21 of the Tax Code of the Russian Federation, the sale of goods, work or services by an organization is recognized, respectively, as the transfer of ownership of goods, the results of work performed by one person for another person, the provision of paid services by one person to another person, both on a paid and gratuitous basis (p 1, Article 39, paragraph two, paragraph 1, paragraph 1, Article 146 of the Tax Code of the Russian Federation).
For the purposes of the Tax Code of the Russian Federation, a product is any property that is sold or intended for sale (clause 3 of Article 38 of the Tax Code of the Russian Federation).
Thus, in general case When transferring property (fixed assets and industrial property) free of charge into the ownership of another person on the territory of the Russian Federation (Article 147 of the Tax Code of the Russian Federation), the transferring party becomes subject to VAT. Exceptions to this rule are established in paragraph 2 of Art. 146 of the Tax Code of the Russian Federation.
Thus, operations on the transfer of property are not recognized as subject to VAT taxation if such transfer is of an investment nature (in particular, contributions to the authorized (share) capital of business companies and partnerships, contributions under a simple partnership agreement (agreement on joint activities), investment partnership agreement, share contributions to mutual funds cooperatives) (clause 1, clause 2, article 146, clause 4, clause 3, article 39 of the Tax Code of the Russian Federation).
For example, in the decisions of the FAS Volga-Vyatka District dated December 3, 2012 No. F01-4894/12 in case No. A29-10167/2011, the FAS Central District dated February 20, 2007 No. A-62-3799/2006 judges, taking into account the provisions of Art. 1 of the Federal Law of February 25, 1999 No. 39-FZ “On investment activities in the Russian Federation, carried out in the form capital investments", came to the conclusion that operations to make a contribution to the property of the company are of an investment nature. Consequently, when they are carried out, the participating organizations do not have an object of VAT taxation.
At the same time, taking into account that operations for contributing property, including fixed assets and industrial property, as a contribution to the property of the company are not directly mentioned in clause 3 of Art. 39 of the Tax Code of the Russian Federation, nor in paragraph 2 of Art. 146 of the Tax Code of the Russian Federation, specialists from the financial department and tax authorities proceed from the fact that when they are carried out, the participating organizations become subject to VAT (see, for example, letters of the Ministry of Finance of Russia dated 08/21/2013 No. 03-07-08/34198, dated 07/15. 2013 No. 03-07-14/27452, letter of the Department of Tax Administration of Russia for Moscow dated February 20, 2004 No. 24-08/10784).
Thus, if the Alpha organization in the situation under consideration does not want to enter into disputes with representatives of the tax authorities, then, given the lack of grounds for applying in this case norms art. 149 of the Tax Code of the Russian Federation, when transferring property to the Omega organization, it should be charged VAT according to the established rules. Thus, the tax base for VAT will be determined as the value of the transferred property, calculated on the basis of prices determined in a manner similar to that provided for in Art. 105.3 of the Tax Code of the Russian Federation, that is, based on market prices, without including VAT (clause 2 of Article 154 of the Tax Code of the Russian Federation), and the amount of VAT will be calculated using tax rate in the amount of 18% (10%) (clauses 2, 3 of Article 164 of the Tax Code of the Russian Federation).
If the organization proceeds from the fact that it does not have a subject to VAT when transferring property as a contribution to the property of the Omega organization, then it should be ready to defend this point of view in court. Let us note that in this case, clause 7 of Art. will also apply in favor of the taxpayer. 3 Tax Code of the Russian Federation. In this case, it may be necessary to restore the amounts of VAT on the transferred property, previously lawfully accepted by the participating organization for deduction, in the prescribed manner (clause 2, clause 3, clause 4, clause 2, article 170 of the Tax Code of the Russian Federation).
In the situation under consideration, the Omega organization cannot apply a tax deduction when receiving property free of charge from the founder, even if it receives an invoice from the Alpha organization. Firstly, such invoices are not registered in the purchase book, this is expressly stated in clause 19 of the Rules for maintaining the purchase book used in calculations of value added tax, approved by Decree of the Government of the Russian Federation dated December 26, 2011 No. 1137. Secondly , during a gratuitous transfer, the transferring party does not present the recipient of the property with VAT for payment, therefore, the recipient has no grounds for receiving a deduction.
According to paragraph 1 of Art. 172 Tax Code of the Russian Federation tax deductions for VAT, provided for in Art. 171 of the Tax Code of the Russian Federation, are made on the basis of invoices issued by sellers of goods (works, services), property rights. In this case, tax amounts presented to the taxpayer upon acquisition of goods (work, services) and property rights are subject to deductions.
When transferring goods free of charge, the transferring party does not present the recipient of the goods with the amount of VAT for payment, therefore there are no legal grounds for the deduction of this tax by the recipient of the goods (letters of the Ministry of Finance of Russia dated March 21, 2006 No. 03-04-11/60, dated July 27, 2012 No. 03- 07-11/197, Federal Tax Service of Russia dated May 26, 2015 No. GD-4-3/8827@).
Prepared answer:
Expert of the Legal Consulting Service GARANT
Vakhromova Natalya
Response quality control:
Reviewer of the Legal Consulting Service GARANT
auditor, member of the MoAP Melnikova Elena
The material was prepared on the basis of individual written consultation provided as part of the Legal Consulting service.
In practice, there are situations when, according to the financial statements, the activities of an organization are unprofitable. The reasons for losses are different. These can be objective factors (for example, an unfavorable market situation, especially during a crisis), and subjective (application tax schemes etc.). Unprofitability of activities affects the value of the company's net assets. What consequences can this lead to? What ways are there to increase your net worth ratio?
In accordance with clause 1 of the Procedure for assessing the value of net assets of joint-stock companies, approved by Order of the Ministry of Finance of Russia and the Federal Securities Commission of Russia dated January 29, 2003 N 10н/03-6/пз, the value of net assets is understood as the value determined by subtracting from the amount of assets accepted for calculation, the amount of his liabilities accepted for calculation.
Considering that the federal law does not establish the value of the net assets of an LLC, companies can also be guided by the joint Order of the Ministry of Finance of Russia and the Federal Commission for the Securities Market of Russia. This position is expressed in Letters of the Ministry of Finance of Russia dated May 15, 2008 N 03-03-06/1/312, dated October 29, 2007 N 03-03-06/1/737, dated January 26, 2007 N 03-03-06/1/ 39, etc.
The joint Order of the Ministry of Finance of Russia and the Federal Commission for the Securities Market of Russia N 10н/03-6/пз (clauses 3 and 4) shows the structure of assets and liabilities included in the calculation of net assets. The assets accepted for calculation include:
Outside current assets(intangible assets, fixed assets, construction in progress, long-term financial investments, postponed tax obligations(ONA), others fixed assets);
Current assets (inventories, VAT, accounts receivable, short-term financial investments, cash, other current assets), excluding the cost in the amount of the actual costs of repurchasing its own shares purchased by the joint-stock company from shareholders for their subsequent resale or cancellation, and the debt of participants ( founders) for contributions to the authorized capital.
The liabilities accepted for calculation include:
Long-term liabilities for loans and credits, deferred tax assets(ONO) and others long term duties;
It is possible to avoid significant tax losses only in the cases provided for in paragraphs. 11 clause 1 art. 251 Tax Code of the Russian Federation. In particular, income not taken into account when determining the tax base includes property received by a Russian organization free of charge:
From an organization, if the authorized capital of the receiving party consists of more than 50% of the contribution (share) of the transferring organization;
From an organization, if the authorized capital of the transferring party consists of more than 50% of the contribution (share) of the receiving organization;
From an individual, if the authorized capital of the receiving party consists of more than 50% of the contribution (share) of this individual.
The only limitation is that the received property (except for funds) is not transferred to third parties within one year from the date of its receipt. In addition, it is necessary to take into account paragraphs. 4 paragraphs 1 art. 575 of the Civil Code of the Russian Federation, according to which donation is not allowed, with the exception of ordinary gifts, the value of which does not exceed 500 rubles, in relations between commercial organizations.
You should pay attention to ways to improve such an indicator as reflected on line 470 of the balance sheet. This indicator characterizes the success of the company over a number of years. The resulting losses can be covered not only by injections from outside, but also by redistributing the structure equity and reserves. Moreover, this will not affect the final value of net assets.
The main ways to cover losses are as follows:
1. Authorized capital. If the value of net assets becomes less than the authorized capital of the company, the difference is used to cover its losses (clause 4 of Article 90, clause 4 of Article 99 of the Civil Code of the Russian Federation, clauses 4, 5 of Article 35 of the Law on OJSC, clause 3 Article 20 of the LLC Law). An entry is made in the accounting records: D-t 80 “Authorized capital”, K-t 84 “Retained earnings (uncovered loss)”.
2. Reserve fund. According to paragraph 1 of Art. 35 of the Law on JSC, a reserve fund is created in the amount of at least 5% of its authorized capital through annual contributions of at least 5% of net profit until the amount established by the company's charter is reached. One of the purposes reserve fund- covering the company's losses. The Law on LLC does not stipulate a detailed procedure for the creation and use of the reserve fund of an LLC, however, in practice, such companies, as a rule, enshrine in the charter and apply the procedure established by the Law on JSC.
3. Extra capital. An organization through reorganization can reclassify additional capital and reserves as retained earnings. When merging, joining, dividing, spinning off and transforming an organization, if the value of the net assets of the successor turns out to be greater than the amount of the authorized capital, then the difference is subject to settlement in the opening balance sheet in the section "Capital and reserves" with the numerical indicator "Retained earnings (uncovered loss)". In case of conversion of shares, the difference that arises is attributed to additional capital (Order of the Ministry of Finance of Russia dated May 20, 2003 N 44n).
Increase in deferred income
Deferred income includes:
1) income received in reporting period, but relating to future reporting periods: rent or apartment payment, payment for public utilities, revenue for freight transportation, for passenger transportation on monthly and quarterly tickets, subscription fees for the use of communications equipment, etc.;
2) the value of assets received by the organization free of charge;
3) receipts of debt for shortfalls identified in previous years, the movement of upcoming receipts of debt for shortfalls identified in the reporting period for previous years is taken into account;
4) the difference between the amount recovered from the guilty persons for missing material and other assets and the cost listed in the organization’s accounting records.
When leasing, deferred income arises in the lessor's balance sheet when the leased asset is transferred to the lessee's balance sheet in the amount of the difference between total amount leasing payments in accordance with the leasing agreement and the cost of the leased property (clause 4 of Order of the Ministry of Finance of Russia dated February 17, 1997 N 15 “On reflecting transactions under a leasing agreement in accounting”).
In practice, sometimes deferred income is classified as accounts payable or other liabilities, thereby unlawfully reducing the value of the company's net assets. Thus, if an organization does not have enough net assets, it is necessary to reconsider accounts payable and other liabilities for their qualification as deferred income.
Repayment of debt of participants (founders) for contributions to the authorized capital
If the authorized capital is not fully paid, line 410 of the balance sheet reflects the amount recorded in the constituent documents. The debt of the founders is indicated on line 240 " Accounts receivable(payments for which are expected within 12 months after reporting date)".
The debt of participants (founders) for contributions to the authorized capital reduces the assets taken into account when calculating net assets, and therefore reduces the net assets themselves. Therefore, the most in a simple way The increase in net assets will be the repayment of the existing debt of the founders (participants) of the company.
The company's net assets are a value that, at first glance, has nothing to do with the work of an accountant. Nevertheless, there are situations when it is the accountant who has to not only calculate it, but also quickly make a management decision based on the data obtained. Otherwise, the company faces serious trouble.
“The size of net assets for 2010 amounted to 8,000 rubles, which is below the minimum level of authorized capital. In this connection, the company, in accordance with paragraph 4 of Article 90 of the Civil Code of the Russian Federation and paragraph 3 of Article 20 of the Federal Law of February 8, 1998 No. 14-FZ “On LLC”, is subject to liquidation. We notify you that in case of refusal of voluntary liquidation, the Federal Tax Service will be forced to take measures to liquidate the company in court.”
Even if you yourself have not received such letters from capital or regional tax authorities, you have probably heard from your colleagues about similar threats from inspectors. What to do in such a situation? How realistic is the possibility of forced liquidation and what needs to be done to avoid it? Let's deal with all the questions in order.
What are “net assets” and why keep track of them?
Net assets are the difference between balance sheet assets and liabilities. This indicator must always exceed the amount of the company's authorized capital. Negative net assets (less than the authorized capital) indicate the financial instability of the company.
If, based on the results of the reporting year, the company received a negative indicator, then it must decide to reduce the authorized capital to the appropriate amount.
More a difficult situation when net assets have fallen below a critical limit - the minimum amount of authorized capital (10 thousand rubles for LLCs and CJSCs, 100 thousand rubles for OJSCs). At this point the organization must decide on voluntary liquidation. Otherwise it will do tax office through the court.
Let us say right away that the likelihood of “forcible” liquidation through the courts on this basis is small. Arbitrators, as a rule, do not consider this violation a sufficient reason to close the company, and therefore give the “offending” taxpayers a chance to correct their financial situation (see, for example, resolution of the Federal Antimonopoly Service of the Moscow District dated October 14, 2009 No. KG-A41/9754- 09 in case No. A41-11158/09). But, as you know, success in legal battles is not guaranteed. Therefore, it is better not to tempt fate and constantly monitor the state of your net assets.
They are determined by the following formula: the sum of all assets (non-current and current) minus long-term and Short-term liabilities(excluding deferred income). This calculation algorithm is prescribed in the Procedure for assessing the value of net assets of joint-stock companies, approved by joint order of the Ministry of Finance of Russia No. 10n and the Federal Commission for the Securities Market No. 03-6/pz dated January 29, 2003. The document is written for joint-stock companies; LLCs can also apply it . This is stated in the letter of the Ministry of Finance of Russia dated October 29, 2007 No. 03-03-06/1/737.
Pay attention to one more detail! If a company has on its balance sheet the debt of the founders for contributions to the authorized capital, it must be excluded from the assets. The net asset indicator must be compared with the amount of the authorized capital annually, starting from the second reporting year.
Five popular ways to increase your net worth
So, at the end of the year you have calculated the amount of net assets. And the result was not impressive. For example, at 120 thousand rubles. The authorized capital of the organization, net assets are equal to 100,000 rubles. If your company is registered as a limited liability company, then the founders are required to announce a reduction in the authorized capital of the organization to 100 thousand rubles.
For joint stock companies the rules are slightly different: they must spend the next year improving their financial condition. If all measures turn out to be useless and net assets are still less than the authorized capital, then the company must make one of two decisions: either to liquidate the company or to reduce the authorized capital.
Let's consider another situation. Net assets fell to 8 thousand rubles. At the same time, the authorized capital of a limited liability company is 10 thousand rubles, that is, there is no place to reduce it. What to do in such a situation? There are several ways to avoid liquidation.
Method 1. Revaluation of fixed assets
One of the common methods to increase net assets is the revaluation of fixed assets. The results of the revaluation are reflected in sections I and III of the balance sheet, that is, they directly affect the size of net assets. Obviously, due to constant inflation, the value of property increases every year.
Advantages. The legislation allows for revaluation of a group of homogeneous objects. That is, it is not necessary to evaluate the cost of all fixed assets; you can choose, for example, the most expensive property.
Flaws. In the future, the property will have to be assessed annually. That is, in addition to the costs of appraisers, the company will also have additional accounting work. Another disadvantage is that property taxes will increase along with the cost of fixed assets. After all, it is calculated on the basis of accounting data.
Method 2. Free assistance from the founders
Another well-known way to save the situation with net assets is to obtain gratuitous assistance from the founders. Moreover, it does not matter what type of property the owner of his company donates: fixed assets, materials or money. Any valuables will go into the balance sheet asset, therefore, increasing the size of net assets. True, this method is not beneficial for everyone - if among the owners of the company there is no one whose share exceeds 50 percent, then the company is subject to income tax.
Advantages. This method, unlike the first, does not incur additional costs: there is no need to pay for the work of third-party specialists and the tax burden does not increase. It can be used at any time of the year: the financial result from the gratuitous receipt of property will be reflected in the first interim balance sheet.
Flaws. This method has only one drawback - it cannot be considered a universal tool for all organizations. To use it, the company must have a founder with more than half of the ownership share. In addition, he must have available funds.
Method 3. Contributions to the company's property
The founders can make a contribution to the company's property without increasing their shares. True, only LLC participants have this opportunity (Article 27 of the Federal Law of February 8, 1998 No. 14-FZ). You can donate money as a deposit, securities, any other things or rights that have a monetary value.
In accounting, received property is reflected in account 83 “Additional capital”. In the liability side of the balance sheet, information about additional capital is indicated in section III, that is, they are not involved in the calculation of net assets. At the same time, the balance sheet asset increases by the value of the deposit received, which ultimately has a positive effect on the size of net assets.
Advantages. This method has two positive aspects. The first is that the founders’ contributions to the property do not change the size of their shares in the authorized capital. Accordingly, there is no need to register this operation in the Unified State Register of Legal Entities; it is enough for the founders to make a decision.
The second advantage is that, regardless of the distribution of shares between the founders, property received free of charge is not subject to income tax (subclause 3.4, clause 1, article 251 of the Tax Code of the Russian Federation). Provided that the goal additional deposits- increase in net assets. This benefit appeared in the Tax Code of the Russian Federation quite recently - from January 1, 2011 and applies to legal relations that arose from January 1, 2007.
Flaws. If the owners of the company make contributions of fixed assets, the company’s property tax base will increase.
Method 4. Take an inventory
Finally, you can conduct an audit of inventory items and capitalize the surplus. Any material values items discovered during the inventory must be reflected in the balance sheet asset.
Advantages. The method does not require additional costs.
Flaws. You must pay income tax on the amount of assets received. In addition, the method is not suitable for everyone. If a company, for example, works in the field of consulting services, then it is unlikely that you will find any surplus in its warehouse. finished products. And in general, the result of the audit is unpredictable: in the end, a shortage may be discovered.
Method 5. Write-off of bad accounts payable
Another option to save a company from forced liquidation is to include a hopeless “creditor” in its income. If the counterparty has not claimed the debt from the company within the limitation period, then the amount of the debt must be included in non-operating income (clause 18 of Article 250 of the Tax Code of the Russian Federation).
Advantages. This method does not require any additional investment from the outside. All that needs to be done is to take an inventory of the “creditor” and issue an order from the manager.
Flaws. The company will have to pay income tax on the amount received non-operating income. Accordingly, the result of the optimization of the balance sheet will decrease by 20 percent, because the income tax debt will be reflected in section V of the balance sheet “Short-term liabilities.”
There is another opportunity to increase the size of net assets with the help of overdue debts - do not write off receivables from expired prescription But doing so is quite dangerous.
Irina Sidorova, Financial Consultant law firm"Taxman":
- If the company, after the expiration of the statute of limitations, does not include the overdue “receivables” in its financial results, then the accounting records will cease to be reliable. And there may be complaints from the tax authorities. In a letter dated April 13, 2011 No. 16-15/035618.1@, the Federal Tax Service for Moscow reminded: the company cannot arbitrarily choose the period for writing off “overdue” debt.
Is debt forgiveness by the founder not subject to income tax and taxation only if it goes to increase net assets?
The article will explain under what conditions debt forgiveness by the founder is not subject to income tax.
Question: Financial assistance to increase net assets is not taken into account in income. This rule also applies to situations where, at the request of participants, founders or shareholders, the company’s debt to them is reduced or terminated. For example, if a company has not fulfilled its obligations to a participant under a loan agreement or payment for goods, it can forgive the debt and use it to increase net assets. Thus, he terminates the company’s obligations under the agreement (letters of the Ministry of Finance of Russia dated July 16, 2015 No. 03-03-06/2/40933 and the Federal Tax Service of Russia dated July 20, 2011 No. ED-4-3/11698). When determining simplified income, the same income is not taken into account as when calculating income tax. This means that financial assistance received from a dependent founder or someone who owns more than 50 percent of the authorized capital of the recipient is also not taken into account when calculating the single tax. As well as assistance to increase net assets. “How to formalize and take into account assistance from the founder (participant, shareholder): loans, advances, donations, deposits.” Or from a founder owning more than 50% - in any case? What are the postings in each case? Dt76 Kt 91 - just forgiveness and Dt 76 Kt 83 - net assets?
Answer: 1. Yes, only if it goes to increase net assets, since subparagraph 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation talks about the transfer of property, and when a debt is forgiven, there is no transfer of property.
Formally, of course, net assets increase without any decisions or protocols, but regulatory agencies require them to be formalized.
2. Posting when debt is forgiven Debit 76 Credit 91.
Many people are mistaken that when it comes to increasing net assets, then account 83 must be used. There is no such rule in the law.
83 account is used when receiving a contribution to the organization’s property, which is usually accompanied by an increase in net assets in relation to the contribution and reflects the posting of Debit 08, 10, 50, 51 Credit 83.
In this case, there is no contribution to property, but rather debt forgiveness in order to increase net assets. They increase in the case of posting Debit 76 Credit 91, since accounts payable decreases, and other income will ultimately be reflected in section III of the balance sheet.
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 the authorized capital of the organization of 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 ( subp. 11 clause 1 art. 251 Tax Code of the Russian Federation). As a result of debt forgiveness, there is no transfer of property ( clause 2 art. 38 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 paragraph 18 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 from 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).
The chief accountant advises: 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).
12.77451 (6,9,24)
Situation: Is it necessary to take into account in income when calculating income tax the amount of forgiven debt to repay the loan amount? The debt is forgiven by the founder who has a contribution to the authorized capital of the organization of more than 50 percent
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 tax inspectors are not excluded.
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 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 art. 250 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 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 Ministry of Finance of Russia dated January 31, 2011 No. 03-03-06/1/45).
Forgiveness of the principal amount of debt (excluding interest debt) under a loan agreement may be subject to the rules subparagraph 11 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 from 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 the 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 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 to terminate the obligation under the original compensation agreement (Articles and Civil Code of the Russian Federation). Therefore, it is impossible to consider the amount of a forgiven debt, including under a loan agreement, as property received free of charge (). 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 paragraph 18 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 art. 3 Tax Code of the Russian Federation).
The chief accountant advises: there is a way not to take into account in income the amount of debt forgiven by the founder under the loan agreement.
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 section 346.15 and paragraph 8 Article 250 of the Tax Code of the Russian Federation. Recognize income on the date of signing the debt forgiveness agreement ( clause 1 art. 346.15, 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.
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.
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 ambiguous. Because the controversial situation based on provisions subparagraph 11 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 simplified tax system ( subp. 1 clause 1.1 art. 346.15 Tax Code of the Russian Federation).
Alexander Sorokin answers,
Deputy Head of the Operational Control Department of the Federal Tax Service of Russia
“Cash payment systems should be used only in cases where the seller provides the buyer, including its employees, with a deferment or installment plan for payment for its goods, work, and services. It is these cases, according to the Federal Tax Service, that relate to the provision and repayment of a loan to pay for goods, work, and services. If an organization issues a cash loan, receives a repayment of such a loan, or itself receives and repays a loan, do not use the cash register. When exactly you need to punch a check, look at