Let's imagine this situation: the real beneficiary of the business provided a seemingly independent company with a number of loans, the repayment period of which has come. However, the organization does not have the necessary money. What can you do in such a situation?

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

A contribution in order to increase net assets (NA) is one of the tools for tax-free transfer of property in business, enshrined in paragraphs. 3.4 clause 1 art. 251 of the Tax Code of the Russian Federation. But like other tools, it has its advantages and disadvantages.

For ease of understanding, we list them:

Any participant in the company can make a contribution to net assets: legal or individual regardless of the size of the share in the authorized capital (for comparison: a contribution to property on the basis of paragraph 11, paragraph 1, Article 251 of the Tax Code can only be made by a participant with a share of more than 50%);

when contributing to a private equity fund, there are no restrictions on the subsequent disposal of property within a year from the date of transfer (one-year limitation in clause 11, clause 1, article 251 of the Tax Code);

property, as well as property and non-property rights (including rights of claim under a loan, etc.) having a monetary value can be transferred;

however, only a participant/shareholder can make a contribution in order to increase the NAV (a “child gift” is not possible - transfer of property from a subsidiary to the parent company);

this instrument is applicable only to business partnerships and companies (JSC, LLC, etc., but not applicable to production cooperatives, business partnerships);

There is no increase when investing in NA authorized capital society.

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

Thus, contributions to the company’s net assets are not taxed on the income of the receiving party (in this case, the debt in the form of the amount of interest on the loan, written off by debt forgiveness, on the basis of paragraph 18 of Article 250 of the Tax Code of the Russian Federation is subject to inclusion in the non-operating income of the debtor organization) 1.

Read also

• Tax-free transfer of property in business: which tool to choose?
• Interest on a loan from the founder: you can forgive it, but you need to pay tax

But what will happen if a participant, for example a company on the OSN, transfers not money, but property as a contribution to the private equity? Is this transaction subject to VAT? Yes and no. In the sense that the transmitting 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...

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

Judicial practice on challenging the application of benefits by tax authorities, paragraphs. 3.4 clause 1 art. 251 of the Tax Code of the Russian Federation is not very extensive. The main thing that tax authorities pay attention to is the reality of the transactions performed. Naturally, the actions of the parties must have a business goal, which is to improve the condition of the company. An increase in net assets and an increase in the company’s profitability after the founder’s “infusions” may indicate this.

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

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

What if a participant deposits a third party bill of exchange into the CA? At the first stage it works general rule- the operation of depositing a bill of exchange into a private equity fund is not subject to income tax, everything is logical. Whereas the company's further transfer of this bill of exchange to a third party to pay off accounts payable is already subject to taxation (see cases No. A53-20551/2015, A41-39593/2015): the taxpayer has the right to include only the costs of selling the bill of exchange as expenses for profit tax purposes.

Another controversial point in practice arose in connection with the transfer by a participant to the company on the basis of paragraphs. 3.4 clause 1 art. 251 of the Tax Code of the Russian Federation gratuitous right to use the property belonging to him. As the courts have indicated, supporting the position of the tax authorities, the property to which the right of use has been transferred must be accounted for separately from the organization’s own property in an off-balance sheet account (paragraph 2 of clause 5 of PBU 1/2008, Instructions for the use of the Chart of Accounts). Therefore, this property does not increase the organization's net assets. In this regard, income from the gratuitous temporary use of the property of a participant (shareholder) must be taken into account as non-operating on the basis of clause 8 of Art. 250 Tax Code of the Russian Federation. (See cases No. A66-9803/2015; A50-24058/2015).

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

As the court of first instance indicated, the obligation to contribute to the property of the company, accepted by its sole participant, had to be fulfilled by this participant even if he alienated his share. The Court of Appeal, on the contrary, supported the tax authorities, insisting that the funds received by the taxpayer from the former participant were gratuitously received property. The cassation court put an end to this dispute, according to which, the participant’s obligation to provide financial assistance to the company does not pass to the acquirer of the share, but the moment of actual transfer to the taxpayer sum of money does not change the qualification of this contribution as taxpayer income received in the form of property transferred by a participant in a business company in order to increase net assets (see case No. A40-21501/2014). Unfortunately, more detailed information there are no details of the transaction for the alienation of a participant’s share in the case materials (which would make it possible to assess whether the position of the cassation court in this case is an isolated case or this decision is justified).

The Ministry of Finance of the Russian Federation, meanwhile, takes the opposite position and regards the contribution of a former participant as non-operating income: if on the date of concluding the agreement on debt forgiveness (consider the date of making the contribution, and not making a decision about it) the person was not a participant in the company, then the benefit income tax does not apply.2

Thus, in decisions of general meetings of participants and shareholders of organizations, do not forget to indicate that the transfer of property is carried out on the basis of paragraphs. 3.4 clause 1 art. 251 of the Tax Code of the Russian Federation precisely in order to increase net assets (so that the tax authorities have no reason to doubt the essence of the transaction). And returning to the beginning of our newsletter, remember: having forgiven a debt to the company, its new participant should not immediately leave the shareholders (participants). Otherwise, the tax authority will say that the lender did not intend to participate in the company’s activities and receive profit from this activity, and his only goal in entering the business was to forgive debt and exclude taxation for the company.

The procedure for calculating net assets is fixed by the joint Order of the Ministry of Finance of Russia No. 10n, FCSM of Russia No. 03-6/pz dated January 29, 2003. “On approval of the Procedure for assessing the value of net assets of joint-stock companies.” In the Letter of the Ministry of Finance of Russia dated December 7, 2009. No. 03-03-06/1/791 states that the Procedure for assessing the value of net assets used in joint stock companies, can be used by companies with limited liability.

The value of the net assets of a company of any type is understood as a value determined by subtracting from the amount of balance sheet assets accepted for calculation the amount of balance sheet liabilities accepted for calculation.

The value of net assets is calculated based on the data balance sheet. However, not all balance sheet indicators are included in the calculation. Example of calculating net asset value.

Companies (joint stock and limited liability) in the course of their operating activities are required to control the size of net assets, which must be greater than the authorized capital. Otherwise, the company may suffer adverse consequences up to liquidation. This should not be allowed to happen, so if the net asset ratio decreases, certain measures should be taken.

Ways to increase your net worth

Practice has developed ways to quickly increase the value of net assets. One of the first ways to increase the value of a company's net assets is revaluation of fixed assets. In accordance with PBU 6/01 “Accounting for fixed assets”, changes are allowed initial cost fixed assets in which they are accepted for accounting(revaluation of a group of similar fixed assets at current (replacement) cost). This makes it possible to increase the company’s net assets, since the results of revaluation, as a rule, increase the amount of additional capital.

The disadvantages of this method, in addition to the annual revaluation of fixed assets, are an increase in accounting work, significant remunerations for appraisers, an increase in property tax, as well as the possibility of underestimation and markdown of the value of fixed assets by the appraiser.

The results of the revaluation are not included in the financial statements of the previous reporting period and are accepted when generating the balance sheet data at the beginning of the reporting year. Consequently, it is impossible to increase the value of net assets at the reporting date.

The second more effective way to increase the value of net assets relative to the revaluation of fixed assets is receiving free assistance. Most often, participants (founders, property owners) come to the company’s rescue and transfer property to it free of charge. At the same time, net assets grow, but the size of the authorized capital does not change.

Such income is not taken into account when taxing profits on the basis of the new paragraph. 3.4 clause 1 art. 251 of the Tax Code of the Russian Federation, which applies to legal relations arising from January 1, 2007, i.e. gratuitous assistance will be excluded from the calculation of income tax if the donor owns more than 50% of the authorized capital. Otherwise, it is necessary to take into account that liabilities will increase by 20% (income tax rate) from market valuation free assistance.

The third way to increase net asset value is Carrying out inventory and recording surpluses in accounting identified as a result of the inventory.

The fourth way is write-off of bad accounts payable With expired limitation period(three years). In tax accounting, the amount of written off accounts payable is included in non-operating income with a corresponding increase in the income tax base.

Example. The authorized capital of the company is 20,000 rubles. Accounts payable with an expired statute of limitations in the amount of 50,000 rubles were written off. The following transactions were reflected in the accounting: Dt account. 60, Kit count. 91 - 50,000 rubles - reflects the amount of accounts payable with an expired statute of limitations; Dt sch. 91, Kt. 68 - 10,000 rubles - income tax is charged. The value of the net assets of a business company will increase by 40,000 rubles.

The fifth way is refusal to write off accounts receivable with an expired statute of limitations. But it is worth considering that this approach leads to distortion of financial reporting data and violates its principles.

The sixth way is issuance of a loan with subsequent forgiveness of debt. This method of increasing net assets consists of issuing a loan by the parent company to a dependent organization with subsequent forgiveness of the debt. However, when applying this method of increasing the value of net assets, it is necessary to carefully consider the emerging tax risks related to the determination of the taxable base for income tax.

In the seventh way, the value of net assets can be increased by application of optimal methods for calculating depreciation. In order to increase the value of net assets, when choosing a depreciation method, it is necessary to maximize the residual value of fixed assets and intangible assets.

And finally, reorganization, probably the most complex method proposed above. But sometimes it can be the most effective.

For example, when operating a group of companies, merging two companies can result in a significant increase in the size of the active part of the balance sheet. Thereby achieving an improvement in the net asset ratio. Moreover, most likely tax consequences will not be. After all, during reorganization, “the value of property, property and non-property rights received through succession is not taken into account as income” (clause 3 of Article 251 of the Tax Code). However, we must not forget about obligations. They will also have to be combined. So, before deciding to merge, it is necessary to evaluate not only the assets, but also the accounts payable, loans and credits of the upcoming “ally”.

Net assets (NA) is one of the few economic indicators, the calculation procedure of which is regulated at the legislative level (Order of the Ministry of Finance No. 84n dated August 28, 14). The founders of an LLC have the right to increase the NAV: through direct contributions in cash, property and some other ways. The benefits and problems that arise in the process of increasing the NAV of the organization's management, its accounting and legal services are discussed below.

Net assets and their volume

Net assets are an indicator representing the difference between the assets of a business entity and its liabilities. In other words, after the sale of assets and repayment of debts, the founders have a certain amount left. This is CHA.

Assets are taken into account without receivables formed by the founders (shareholders, participants, etc.) for contributions (contributions) to (share, etc.) capital (fund).

Liabilities are taken into account without deferred income. Such income is not excluded completely, but only in part:

• related to state aid;
• related to free receipt property.

These incomes are economically equivalent to equity.

The information can be visually represented by the formula:

NA = (p. 1600 – ZdtU) – (p. 1400 + p. 1500 – DBP), where:

• With. 1600 - balance sheet asset;
• With. 1400 and 1500 - ;
• DBP - deferred income in the part included in the calculation;
• ZdtU — accounts receivable in the part included in the calculation.

Net assets must not only have a positive value, but also exceed the amount of the authorized capital. A normal NA value indicates the economic stability of the organization. If the balance is disturbed, the law allows for a reduction in the authorized capital, but only until its value becomes minimal. Further, if the situation continues to remain at the same level or worsens, there is a threat of liquidation of the organization (Article 90-4 of the Civil Code of the Russian Federation).

In such a situation, as well as in other cases when a decision is made to increase the NAV, the founders can do this in several ways.

On a note. The net asset method is widely used by estimators of the value of an organization's balance sheet. When calculating, the above indicators are used, adjusted for the market value of liabilities and property. An independent assessment is often carried out by the founders themselves, with the help of third party organizations, in order to obtain current data on the state of the region, with the possibility of increasing it.

Ways to increase net assets by founders

Based on the formula for calculating NA, we can conclude that the founders have four ways to increase their level:

• increase the authorized capital;
• repay debts in the authorized capital;
• provide financial assistance organizations;
• make a property contribution.

An increase in the authorized capital makes exceptional sense only if its value is below the NAV. The difficulty is that according to Federal Law No. 14 of 02/08/98 “On LLC”, Art. 17, such an operation is subject to notarized registration and leads to changes in the Unified State Register of Legal Entities. The increase occurs due to additional deposits property or finances.

Let us note that if there are debts of the founders on deposits in the management company, it is advisable, first of all, to pay them off.

Financial investments and property contributions of the founders – effective ways increasing additional capital and, as a consequence, the organization’s net assets. With this method, there is no need to comply with the above legal formalities.

It should be borne in mind that when providing financial assistance, it is necessary to indicate in the agreement of the parties economic sense, the commercial benefits of such actions. Otherwise, the transaction may be considered a violation of the Civil Code of the Russian Federation, namely clause 1(4) of Art. 575, which contains a ban on donations between commercial organizations(if the founder is a legal entity).

Accounting for transactions to increase net assets

Accounting entries when increasing the authorized capital by the founders are as follows:

• Dt 50 (or 51, 52) Kt 75-1– if the contribution is of a financial nature;
• Dt 07 (07, 08, 10, 11, 41, etc.) – Kt 75-1– if the contribution is property.

A posting is made on the date of state registration Dt 75-1 Kt 80.

Accounting entries when repaying the debts of the founders to the authorized capital will be similar.

In NU, such operations are not taken into account (see Tax Code of the Russian Federation, Article 251, paragraphs 1-3) when calculating. However, in 2018, the legislator made changes that complicated the resolution of this issue. According to the Tax Code, the following income is not subject to taxation:

• property, property rights, similarly – non-property rights received from participants as a contribution to the property of the company;
• assistance provided free of charge from a participant whose share in the authorized capital is more than half. Real estate, as before, cannot be transferred to third parties throughout the year.

If a participant owns less than half of the share capital, it is necessary that his ability to contribute assistance be enshrined in the charter or in amendments to the charter.

Moreover, unless otherwise stated in the charter, participants are required to make contributions in proportion to their shares in the company’s capital, i.e., the possibility of making contributions by only one of the participants is cut off. For such actions, you must first change the charter. The contribution is documented in the Minutes of the General Meeting.

Free assistance with property, the very right to use it, are regarded by the Tax Code of the Russian Federation as non-operating income (Article 250-8). Income is determined by market prices(letter of the Ministry of Finance No. 03-03-07/36870 dated 14-06-17). The opinion is confirmed independent appraiser and documented reference analytical data on similar properties obtained from publicly available sources, such as the Internet.

Accounting entries for increasing the net asset value due to an increase in additional capital are as follows:

• Dt 01 (04, 10, 51, 50, 58) Kt 83– making a contribution to the organization’s property.

Or using count 75:

• Dt 75 Kt 83— the debt on the founder’s contribution to the property is reflected;
• Dt 01 (01, 04, 10, 50,51, 58) Kt 75— contributed to the organization’s property.

The value at which property is accounted for is market value, as in the case of gratuitous transfer (PBU 1/08, 5/01, 6/01). The market value must be agreed upon by the participants and reflected in the documents confirming the contribution.

The received non-monetary property is excluded from the scope of taxation (Letter of the Ministry of Finance No. 03-07-11/197 dated 07/27/12 and a number of others). The VAT recorded in the documents is not reflected in the accounting system. There is one exception: if the property was transferred foreign company, which is not tax agent on the territory of the Russian Federation, then the company pays VAT on its value, and then can accept it for deduction under certain conditions (Ministry of Finance, letter No. 03-07-08/77947 dated 12/26/16).

On a note. The transferred property of the founding organization must be subject to VAT. The regulatory authorities claim this because Articles 149 and 146 of the Tax Code of the Russian Federation do not mention such operations. This conclusion is confirmed by a number of letters from the Ministry of Finance and the Federal Tax Service.

The cost of such property is not included in income tax if:

• the documents (decisions) clearly indicated the purpose of the transfer of property - “to increase the share capital” (the size of the share in the management company does not play a role here);
• the founder's share in the authorized capital is more than half, and the property will not be transferred to outsiders for 12 months (sale and other similar actions are excluded).

Main

In some cases, the company's net assets need to be increased. The founders can do this by increasing the authorized capital, as well as by returning debts on contributions to it, and by increasing additional capital. Deposits can be made in kind or in cash.

Due to changes in legislation in this year, it is recommended to carefully monitor the nuances that characterize property transfer operations and promptly make changes to the organization’s charter, if necessary. If necessary, contact independent assessment property and liabilities.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Behind Lately Many societies are faced with so-called “chain letters” that are actively sent out by the Federal Tax Service. The company is notified that the size of its net assets for 2009 and 2010 is “below the minimum level of authorized capital”, and therefore it is subject to liquidation.

There are many ways to increase net assets and all of them are not new: you can re-evaluate fixed assets or receive gratuitous financial assistance from the founder, receive contributions to the company’s property from participants, or try to collect debts on contributions to the authorized capital from the founders.

The methods are known to everyone and are described in some detail. You just have to look for them in any information system. Therefore, this time the conversation will not be about them. And about what to do if all the mentioned methods do not suit you. Well, the company doesn’t have the money for an appraisal. market value property (in addition, an increase in property value will inevitably entail an increase in property tax). There are no fixed assets to overvalue. The founder has no funds and he can’t help in any way - he doesn’t either economic crisis. And all the participants have paid for everything a long time ago, and they have no debt to the society, and in general everything is in order with the debt.

And yet there is a way out. And this solution was proposed by the legislator, adopting the federal law No. 409-FZ “On amendments to certain legislative acts Russian Federation in terms of regulation of dividend payment (profit distribution)"

The mentioned law, in Article 3, amends paragraph 1 of Article 251 of Part Two of the Tax Code Russian Federation, indirectly providing business companies with another way to increase the value of the company's net assets. Moreover, the proposed method does not require financial costs at this stage, which in our time is a strong argument in favor of its attractiveness.

So, one of the ways to increase net assets, as we have already mentioned, is to receive gratuitous financial assistance. To increase the net assets of the company, its participants can transfer funds or other property to the organization as financial assistance. A company's receipt of financial assistance will result in an asset increase on its balance sheet. Consequently, the value of net assets will increase. In addition, if the donor owns more than 50% of the authorized capital of the organization, gratuitous assistance is not taken into account when calculating income tax (clause 1, clause 1, article 251 of the Tax Code of the Russian Federation).

As we just found out, the legislation provides for another option for increasing the value of the company’s net assets in percentage points. 3.4 clause 1 of Article 251 of the Tax Code of the Russian Federation: property, property rights or non-property rights in the amount of them monetary value transferred to a business company or partnership in order to increase net assets, including through the formation of additional capital and (or) funds, by the relevant shareholders or participants are not taken into account as part of income when determining tax base. That is, a shareholder or participant does not have to own 50% of the authorized capital of your company in order for the gratuitous transfer to not be subject to income tax. The main thing is that the assistance is transferred in order to increase net assets. This time!

Now about the property that the participant (shareholder) transfers to your company. He will hand over his bill. That is, if a participant (shareholder) owning any share in the authorized capital of a company decides to transfer his bill of exchange in order to increase the net assets of the company in whose authorized capital he participates, with a payment deadline “on sight, but not earlier than a certain date” ( but not earlier than three years), then your company falls under clause 3.4. Clause 1 of Article 251 of the Tax Code. That's two!

The transferred bill of exchange is reflected in the active part of your company's balance sheet, which leads to an increase in its net assets without causing tax consequences. And that's three!

First of all, you need to answer the tax office. We are writing that we are carrying out a number of measures aimed at increasing the value of net assets and plan to receive free financial assistance from a member of the company, and also ask to postpone the adoption of measures to liquidate the company for 3-6 months. It can be longer if your company or member company is a joint stock company, then it may take longer due to procedural issues.

Next, we define the main “parameters”. The amount of the bill depends on the amount of net assets and authorized capital of your company. It makes sense to define it with a “reserve” for next year. It is not known how your company will work - what if it makes a loss? You will have to issue a bill again.

The promissory note is interest-free, issued for 3 years in order to bring the value of net assets into compliance with legal requirements.

Now the legal component of the issue.

You need to start with the person transferring the bill. It should be noted that this may not be one participant, but several participants - the amount of the bill is divided between them in an arbitrary proportion. Approve general meeting or the Board of Directors (it all depends on what is written in the charter about the distribution of powers between the management bodies of the company and the amount of the bill) a transaction for issuing a bill, if it is large for the issuing person. In addition, this transaction may turn out to be an interested party transaction, and also, in accordance with the charter, the completion of this transaction may not be within the competence of the sole executive body. Of course, if the participant is an individual, everything becomes simpler.

In addition, the transaction may need to be approved by your company for the same reasons.

After three years, you can act according to circumstances and depending on financial situation, both your company and the company that issued the bill. After all, after six years (the holder of the note can sue the drawer for payment promissory note within 3 years from the date of payment, after the expiration of this period, the holder of the bill has no right to demand payment on the bill, and another three years - the limitation period for bill obligations from the date of payment) can be written off as overdue accounts payable. Regarding the taxation of written off accounts payable, if the holder of the bill did not present the bill for payment in fixed time and the bill was issued in accordance with clauses 3,4 and clause 11, clause 1, Article 251 of the Tax Code of the Russian Federation - there is no judicial practice. However, in view of the fact that the issuance of bills of exchange to subsidiaries and other dependent companies is not subject to income tax, then uncollected receivables and unpaid accounts payable are also not subject to income tax.

Moreover, maybe in three years your company itself will want to liquidate. There is no unambiguous judicial practice on the issue of whether the liquidation of the organization to which the bill of exchange is transferred is the basis for including accounts payable in the income of the drawer ( clause 18 art. 250 Tax Code of the Russian Federation), no.

So, in accordance with clause 18 art. 250 Tax Code of the Russian Federation in non-operating income includes accounts payable (liabilities to creditors) written off due to the expiration of the statute of limitations or for other reasons. About whether the liquidation of the organization to which the bill of exchange was transferred is such a basis in the Tax Office code RF is not said.

In judicial practice there are different points of view on this issue.

There are court decisions according to which the liquidation of the bill holder organization is not a basis for including accounts payable in income.

At the same time there is court decisions, in which the opposite conclusion is made: the drawer must include in income the accounts payable on the bill during the period of liquidation of the organization to which the security was transferred.

For clarity, let's look at the situation using an example:

The shareholders of BBB CJSC are I.I. Ivanov. and LLC "AAA"

Accordingly, BBB CJSC has a critical situation with its net assets.

The goal is to increase the net assets of CJSC BBB

Shareholders of CJSC "BBB" - LLC "AAA" and Ivanov I.I. make decisions by the authorized bodies on the transfer of property (bills of exchange) to CJSC "BBB" in order to increase the net assets of the CJSC.

As property, a promissory note from AAA LLC in the amount of 17.5 rubles is transferred, from Ivanov I.I. - bill for 52.5 rubles. The amount of the bill depends on the amount of net assets and authorized capital of CJSC BBB. The promissory note is interest-free, issued for 3 years in order to bring the value of the net assets of BBB CJSC into compliance with the requirements of the law.

At AAA LLC:

Dt 91 (“Other income and expenses") Kt 76 (“Settlements with various debtors and creditors”) for the amount of the issued bill.

JSC "BBB":

Asset - Dt 58 (“Financial investments”, debt subaccount securities) are reflected 70 rubles, in the liability Kt 83 (“ Extra capital") 70 rubles are reflected.

Six years have passed...

JSC "BBB":

- overdue receivables in the amount of 70 rubles are written off. - losses from financial investments.

Remains in liability Kt 83 (“Additional capital”) 70 rubles.

At LLC "AAA"

- overdue accounts payable Dt 91 (Other income and expenses) and Kt 76 (Settlements with various debtors and creditors).

You can complicate the task if your participant has the same situation with the amount of net assets. The whole procedure is increased by one step. And the amount of the bill will depend on the size of the net assets and authorized capital of CJSC BBB, taking into account the fact that CJSC BBB will also issue the bill.

As we have just seen, the law has provided us with a fairly "inexpensive" opportunity to bring our society's net assets into compliance with legal requirements.

Head of Corporate Practice