Transfer of property without increasing the authorized capital. Tax risks of various ways of financing business entities. Recovery of VAT upon transfer of a contribution to the property of a company

I.Yu. Yakovlev,
Lawyer of the Audit Department of the Institute of Entrepreneurship Problems (SPb),
Cand. jurid. sciences

Is a member of the company obliged to limited liability pay VAT when making a contribution to the property of the company? The author of the article answers this question by comparing the arguments in favor of various solutions to the problem.

Active entrepreneurial activity is often carried out by creating not one organization, but a whole group of companies - legal entitiescarrying out independent activities for implementation common goal often in various areas of business.

At the same time, in practice, a person participating in the authorized capital of another company (we will conditionally call it a subsidiary) may feel the need to replenish its assets or provide it with financial support.

This task can be solved by various means - for example, by making property as a contribution to the authorized capital of the corresponding organization. This method of redistribution of assets within a group of companies is directly named among the transactions not subject to VAT (subparagraph 4 of paragraph 3 of article 39, subparagraph 1 of paragraph 2 of article 146 of the Tax Code of the Russian Federation). Since this operation affects the size authorized capital the receiving party, then it requires the introduction of appropriate changes to the Unified State Register of Legal Entities, which means additional expenditures of time and effort.

At the same time, if the receiving party is a limited liability company, then another method can be used to transfer assets - making a “contribution to the property of the company” 1.

Such deposits are provided for by Article 27 of the Federal Law of 08.02.1998 No. 14-FZ "On Limited Liability Companies" (hereinafter - Law No. 14-FZ), their nature is that they do not increase the size of the authorized capital of the host company and the nominal value shares of participants in the latter.

So, the members of the company are obliged, if provided for by the charter of the company, by decision general meeting members of the company to make contributions to the property of the company. Contributions to the property of the company are made in cash, unless otherwise provided by the charter of the company or by the decision of the general meeting of the company's participants (clauses 1, 3, article 27 of Law No. 14-FZ).

This transaction does not require the performance of state registration actions, and the procedure for its implementation is much simpler in comparison with the change in the authorized capital. Meanwhile, there is currently legal uncertainty on this issue.
The transfer of a contribution to the property in cash does not entail the obligation to pay VAT, since the implementation of transactions related to the circulation of the Russian currency is not recognized as the sale of goods, works or services (subparagraph 1, paragraph 3 of article 39, subparagraph 1 of paragraph 2 of article . 146 Tax Code of the Russian Federation).

However, uncertainty arises when making non-cash contributions to the property of a subsidiary.

Making a non-monetary contribution is a transfer of property free of charge, which by general rule covered by the concept of an object of VAT taxation by virtue of article 146 of the Tax Code of the Russian Federation.

At the same time, in accordance with subparagraph 4 of paragraph 3 of Article 39 and subparagraph 1 of paragraph 2 of Article 146 of the Tax Code of the Russian Federation, the transfer of property is not recognized as an object of VAT if it is of an investment nature (in particular, contributions to the authorized [pooled] capital of economic companies and partnerships, contributions to a simple partnership agreement [agreement on joint activities], share contributions to mutual funds of cooperatives).

What arguments should the tax authority prepare for?

Unfortunately, there has not yet been a stable law enforcement practice on the issue of whether an operation to make a non-monetary contribution to the property of an LLC is subject to VAT. In this regard, there is a risk of recognition of this business transaction as subject to VAT, including on the basis of the following arguments:

a contribution to the property of a business entity does not give rise to the recipient party's obligation of reciprocal fulfillment, which means that the tax authority may try to characterize the relationship for its contribution as gratuitous;
by virtue of the direct indication of clause 4 of Article 27 of Law No. 14-FZ, contributions to the company's property do not change the size and nominal value of the shares of the participants of the economic company in its authorized capital, which means that as a result of making the contribution in question, the participant does not acquire any additional rights in relation to the company (for example, there is no change in the share of the participant in the distributed profit, etc.). This circumstance may also prevent the recognition of the investment nature of the transaction for making a contribution to property;
according to article 8 of the Federal Law of February 25, 1999 No. 39-FZ "On investment activities in Russian Federationcarried out in the form of capital investments "(hereinafter - Law No. 39-FZ), the relations between the subjects of investment activity are carried out on the basis of an agreement and (or) a state contract concluded between them in accordance with the Civil Code of the Russian Federation.

DEFINITION OF A FREE TRANSACTION
(Clause 2, Article 423 of the Civil Code of the Russian Federation)

A contract is recognized as gratuitous, according to which one party undertakes to provide something to the other party without receiving payment or other counter-provision from it.

INVESTMENT AND INVESTMENT ACTIVITIES
(Article 1 of Law No. 39-FZ)

Investments - cash, securities, other property, including property rights, other rights that have a monetary value, invested in objects of entrepreneurial and (or) other activities in order to obtain profit and (or) achieve another useful effect.

Investment activity - investment and implementation of practical actions in order to obtain profit and (or) achieve other beneficial effects.

In addition, when making a contribution to property, the parties often do not conclude any agreement, which can also serve as a formal basis for recognizing the relationship of the parties as inconsistent with investment signs.

Justification of the right not to pay tax

In our opinion, the transaction under consideration still has a pronounced investment character and does not involve payment of VAT. Let us give reasons to substantiate this position.

The list of non-VAT-taxable investment transactions (subparagraph 4 of paragraph 3 of article 39 of the Tax Code of the Russian Federation) is open(when listing them, the wording "in particular" is used). In the event of a dispute, it is necessary to find out what the will of the LLC participants was aimed at when endowing the latter with assets: for the free transfer of property (donation) or for the investment of this property in the object business activities in order to increase the efficiency of the business of the receiving party (LLC), which means, in order to increase the profit distributed among the participants of the LLC and the actual value of the share of each participant in the authorized capital of the company (Articles 14, 29 of Law No. 14-ФЗ).

So, for example, the investment nature of the transaction can be confirmed by the fact of the targeted use of the property transferred as a contribution in entrepreneurial activity. subsidiary.

The focus of the transaction under consideration on the expectation of useful economic effect can be justified by other arguments.
In practice, it is not uncommon for a subsidiary to have negative net assets at the time of making a contribution, which turned out to be less than the amount of the authorized capital. This circumstance entails adverse consequences both for the subsidiary and for its owner (Articles 20, 29 of Law No. 14-FZ). At the same time, the additional contribution to the property of the subsidiary can be explained by the interest of the owners in the observance of the corporate legislation by the controlled legal entity.

The corporate relationship between the transferor (participant) and the receiving party (subsidiary) is investment in nature. It seems that the considered contribution to the property of the LLC is carried out within the framework of such relations and is of an investment nature. Moreover, the operation of making a contribution to the property of an LLC is similar to the operation of making a contribution by a participant to the authorized capital, the investment nature of which is directly provided for by law.

The tax authorities' argument about the formal obligation of an agreement on making a contribution to property is unfounded.The absence of such an agreement in the form of a single document does not in itself exclude the investment nature of the relations between the parties2. Moreover, making a contribution does not require the consent of the LLC - the receiving party. In this regard, the transaction between this LLC and each of its participants should be regarded as unilateral (Article 154 of the Civil Code of the Russian Federation).

Thus, in our opinion, there is no basis for concluding an agreement as a bilateral agreement in the situation under consideration.

Finally, in the resolution of disputes by the courts, the opinion has been expressed more than once, that making a contribution to the property of an LLC is not a gratuitous transaction 3 ... Such disputes, however, concerned deposits in cash. With regard to deposits made by other property, a stable law enforcement practice has not developed, although there are isolated judicial acts, which reflect the investment nature of transactions of the type in question 4.

***

So, making a contribution to the property of a limited liability company by its participants is common in business environment a way of reallocating assets within a group of companies.

Despite the absence in the law of an unambiguous rule governing the taxation of such a business transaction, an analysis of its legal nature allows such transactions to be classified as investment transactions, which means that they do not entail VAT.

I.Yu. Yakovlev
Is VAT Applicable to Contributions into the Property of an LLC?
Does a member of a limited liability company have to pay VAT on a contribution to the property of this company? The author answers this question by comparing arguments in favor of various ways of addressing this issue.

1 In relation to joint stock companies, this method of financing is not provided for by law.
2 See, for example: Resolution of the FAS Central Organ of 20.02.2007 on case No. A-62-3799 / 2006.

3 See, for example: decisions of the Ninth AAC dated August 17, 2010 in case No. A40-164445 / 09-4-1302, FAS ZSO dated March 14, 2008 in case No. A81-4787 / 2006 and dated 05/04/2006 in case No. A27- 4692 / 05-2.

4 See also: Resolution of the FAS TsO dated 20.02.2007 on case No. A-62-3799 / 2006.

Key words: "contribution to the authorized capital" - "VAT" - "investments" - " state registration"-" legal nature "-" object of taxation

In this article, we will tell you about the key tools for tax-free (low-tax) property transfer in business. Each of them has its own characteristic features and restrictions.

Why might a tax-free transfer of property be required?

Changing the owner of the property by concluding a sale and purchase agreement is recognized as a sale and entails the need to pay VAT and income tax (when applying the general taxation system). In the event that the property is transferred to united group companies, the occurrence of tax liabilities is highly undesirable: in fact, the property remained in the ownership of the same beneficiary, and taxes must be paid. Tax-free transfer (change of ownership) of property in a group may be required:

To increase the level of property security. There are different situations in business and it is necessary to protect key assets from encroachments on them by third parties (creditors, counterparties, raiders and regulators). In addition, the presence of the property of the company is an additional incentive for the tax authority to conduct the GNP, since the taxpayer has something to collect possible additional charges. Obviously, assets "vital" for a business should not be located in a risky operating sector.
To launch an investment project. It is more logical to start a new promising direction with blank slate, it should not be subject to risks and obligations operating business... In addition, partners who are not involved in your main business can participate in the implementation of the investment project. In this case, filling the new project with property (including money) should also take place with the most beneficial tax consequences for both the transferring and receiving parties.
When refinancing in a group: the redistribution of financial flows between related companies (entities) also requires the elimination of unnecessary tax liabilities.

How to carry out a tax-free transfer of property?

Capital contribution.
A contribution to the property of the organization (including a “child gift”), including a contribution to property to increase net assets.
Reorganization in the form of a selection.

We have fixed the key points for you in a separate table.

Nuances	Contribution to the Criminal Code	Contribution to property	Property contribution in order to increase the NA	Allocation procedure
Organizational and legal form of the company receiving the property		Any organization in which the authorized (pooled) capital is formed: business partnerships and companies, business partnerships	Established for business partnerships and companies (not applicable to production cooperative, economic partnership)
The size of the shares / shares of the transferor in the authorized capital of the recipient company		More than 50% (in the case of a “daughter gift”, the share of ownership of the parent company must also exceed 50%)
Does the size of the share of the transmitting party in the management company change?
Do I need an appraiser to transfer property		Not necessary	Not necessary	Not necessary
Tax liabilities	For organizations on OSN: no income tax the transferring party is obliged to restore VAT, the receiving party can accept for deduction (subject to the application of the DOS)	For organizations on OSN: no income tax	For organizations on OSN: no income tax the transferring party must recover VAT, the receiving party cannot deduct	For organizations on OSN: no income tax the reorganized company has no obligation to charge VAT or recover it. The host is also not obliged to recover VAT
Transfer object restrictions		Property: according to Article 41 of the Civil Code, these are things, money, securities, property rights (Article 129 of the Civil Code of the Russian Federation)	Property, property and non-property rights, including the right to demand payment of debt	Cash, securities, property, property and other rights that have a monetary value

Capital contribution

This is the most well-known way of providing a company by its participants of property and property rights. A member of any commercial organization (JSC, LLC, etc.) can contribute to the authorized capital (MC), both at the stage of registration of the company and in the process of its activities.

In addition, a third party can make a contribution to the authorized capital of an LLC when joining the company. In a joint-stock company, a third party can purchase shares with an additional issue - this will constitute a contribution to the charter capital. Money, securities, other property or property rights may be contributed to the payment of the authorized capital.

Tax implications

Certainly real life it is not always possible to "cram" into the framework of the above methods of transferring property. There are a great many options for property consolidation, most often they are a combination of tax-free and low-tax methods of property redistribution, the set of which is always unique.

The authorized capital of a joint stock company is the initial source of funds for the company, the so-called start-up capitalformed during the creation of a society. In the future, it can be increased: by increasing the par value of shares or by placing additional shares. However, the financing of a joint-stock company can be carried out by shareholders and by means of a contribution to the property of the joint-stock company, which does not increase the authorized capital of the company. Let's analyze how this can be done and what are the limitations.

Basic Provisions

Joint-stock companies represent one of the most common organizational and legal forms commercial organizationsoperating in the RF. Legal basis their activities are regulated by:

The Civil Code of the Russian Federation; Federal Law No. 208-FZ of December 26, 1995 (as amended on July 3, 2016) "On Joint Stock Companies" (hereinafter - Law No. 208-FZ). A joint-stock company can be public or non-public, which is reflected in its charter and company name. A company is recognized as public if its shares and securities convertible into its shares are publicly placed (by open subscription) or publicly traded under the conditions established by the laws on securities. All other companies that do not meet these criteria are considered non-public.

The constituent document of a joint-stock company is its charter, which, in particular, must contain information about the company name of the company and its location, conditions on the categories of shares issued by the company, their nominal value and quantity, the size of the charter capital of the company, the rights of shareholders, composition and the competence of the bodies of society, the procedure for making decisions.

A joint stock company is considered to be created as a legal entity from the moment of its state registration.

The legal norms establishing mandatory requirements for the authorized capital of a joint-stock company are established by Art. 99-101 of the Civil Code of the Russian Federation, as well as Art. 25-30 of Law No. 208-FZ.

The authorized capital of a joint-stock company is made up of the par value of the company's shares acquired by shareholders, and it is not allowed to release a shareholder from the obligation to pay for the company's shares (clauses 1, 2, article 99 of the Civil Code of the Russian Federation).

Public and non-public JSC

The size of the authorized capital of joint stock companies is determined by Art. 26 of Law No. 208-FZ, according to which the minimum authorized capital of a public company must be 100 thousand rubles, and the minimum authorized capital of a non-public company - 10 thousand rubles.

Note that joint stock companies are endowed with the right to increase and decrease the authorized capital of the company, which is carried out in accordance with Law No. 208-FZ and is provided for by Art. 100 and 101 of the Civil Code of the Russian Federation, respectively.

The law or the charter of a company that is not public may establish restrictions on the number, total par value of shares, or the maximum number of votes held by one shareholder (clause 5, article 99 of the Civil Code of the Russian Federation).

In a public joint-stock company, the number of shares owned by one shareholder, their total nominal value, as well as the maximum number of votes given to one shareholder, as established by paragraph 5 of Art. 97 of the Civil Code of the Russian Federation.

The share of preferred shares in the total volume of the authorized capital of a joint stock company must not exceed 25%. Moreover, public joint-stock company is not entitled to place preferred shares, the par value of which is lower than the par value of ordinary shares (clause 1 of article 102 of the Civil Code of the Russian Federation).

Financing JSC by issuing shares

In accordance with Chapter 2 of the Regulation on Securities Issue Standards, the procedure for state registration of an issue (additional issue) of emissive securities, state registration of reports on the results of an issue (additional issue) of emissive securities and registration of securities prospectuses approved by the Bank of Russia on August 11, 2014 No. 428-P (hereinafter referred to as Regulation No. 428-P), the procedure for making a decision on the placement of securities, as well as its content, must comply with the requirements of federal laws and Regulation No. 428-P.

If the charter of a joint-stock company defines the procedure and conditions for the placement of declared shares of a certain category (type), then the procedure and conditions for the placement of additional shares of this category (type), determined by the decision on their placement, must comply with the specified provisions of the charter of such a joint-stock company.

In accordance with Art. 22 of the Federal Law of 22.04.96, No. 39-FZ "On the Securities Market" (hereinafter - Law No. 39-FZ), state registration of an issue (additional issue) of equity securities placed by subscription must be accompanied by the registration of a securities prospectus. The securities prospectus must be drawn up in accordance with the Regulation on Disclosure of Information by Issuers of Equity Securities, approved by the Bank of Russia dated December 30, 2014, No. 454-P.

So, when establishing a joint stock company, the first issue of shares is carried out, which are placed among the founders. The form of payment for shares upon foundation of the company is determined by the agreement on the foundation of the company. Additional shares and other equity securities of the company, placed by subscription, are placed subject to full payment. The shareholder acquires the right to vote at the general meeting from the moment the shares are paid in full.

Clause 2 of Art. 34 of Law No. 208-FZ provides founders with the opportunity to independently determine, respectively, the form of payment for shares distributed among the founders at the establishment of a company, as well as additional shares placed by subscription. Such shares can be paid for in cash, securities, other things or property rights, or other rights that have a monetary value. Payment for additional shares by offsetting monetary claims against the company is allowed if they are placed by private subscription. The form of payment for the shares of the company upon its establishment is determined by the agreement on the creation of the company, additional shares - by the decision on their placement. Payment for other equity securities may only be made in cash.

The company's charter may contain restrictions on the types of property that can be used to pay for the company's shares.

The monetary valuation of the property contributed as payment for the shares at the foundation of the company is made by agreement between the founders.

In the resolution of the FAS of the Moscow District of January 28, 2013 in case No. A40-130686 / 09-103-634b, it was noted that in addition to the general provision of paragraph 1 of Art. 34 of Law No. 208-FZ, the specified norm in paragraph 3, clause 3, as a separate case, establishes the procedure for regulating payment for shares in non-monetary funds. When paying for shares in non-cash, to determine market value such property must be attracted by an appraiser, unless otherwise provided by federal law. The value of the monetary valuation of the property made by the founders of the company and the board of directors (supervisory board) of the company cannot be higher than the value of the valuation made by the appraiser.

Thus, by virtue of the direct indication of paragraph 3 of clause 3 of Art. 34 of Law No. 208-FZ, the involvement of an appraiser when paying for shares with non-monetary funds to determine the market value of such property is mandatory.

According to Art. 27 of Law No. 208-FZ, the company's charter must determine the number, par value of shares acquired by shareholders (outstanding shares), and the rights granted by these shares. The shares acquired and redeemed by the company, as well as the shares of the company, the ownership of which has passed to the company in accordance with Art. 34 of Law No. 208-FZ, are placed until maturity. The charter of a company may determine the number, par value, categories (types) of shares that the company is entitled to place in addition to already placed shares (declared shares), and the rights granted by these shares. In the absence of these provisions in the company's charter, it is not entitled to place additional shares.

The charter of the company may determine the procedure and conditions for the placement of announced shares by the company.

The Company places ordinary shares and is entitled to place one or several types of preferred shares. All shares of the company are uncertified.

All shares of the company are registered equity securities. Registered equity securities can be issued only in non-documentary form, with the exception of cases provided for by federal laws (Art. 16 of Law No. 39-FZ). Note that general provisions on uncertified securities are defined by Art. 149 of the Civil Code of the Russian Federation.

The owners' rights to equity securities of a non-documentary form of issue are certified in the register keeping system - by entries on personal accounts with the registrar or, in the case of recording rights to securities in a depository, by entries on a custody account in depositories (Article 28 of Law No. 39-FZ).

The right to a registered non-documentary security is transferred to the acquirer, including in the case of accounting for the rights to securities of a person engaged in depository activities - from the moment of making a credit entry on the acquirer's securities account (Article 29 of Law No. 39-FZ).

Recall that the registration of rights to uncertified securities is carried out by making entries in the accounts by a person acting on behalf of the person obliged by the security, or by a person acting on the basis of an agreement with the rightholder or with another person who, in accordance with the law, exercises rights to the security paper. Keeping records of such rights is carried out by a person who has a license provided for by law (clause 2 of article 149 of the Civil Code of the Russian Federation). That is, the registration of rights to uncertified securities should be carried out by a person who has the appropriate license.

Contribution of property without increasing the authorized capital

We have considered ways of financing joint stock companies through the initial or additional issue of shares. However, the assets of a joint stock company can be replenished not only by issuing new shares, but also by investing property without increasing the authorized capital, which is sometimes more convenient. For example, a situation may develop in such a way that a decision may be made on contributions to property only by individual shareholders or not in equal shares. This right is granted by Art. 32.2 of the Law No. 208-FZ, introduced by the Federal Law of 03.07.16, No. 339-FZ. In addition, in non-public companies, shareholders may be obliged to make contributions to the property of a non-public company, which is not provided for in the case of an additional issue of shares.

So, according to paragraph 1 of Art. 32.2 of Law No. 208-FZ, on the basis of an agreement with the company, shareholders have the right, in order to finance and maintain the company's activities, at any time to make gratuitous contributions to the company's property in monetary or other form that do not increase the authorized capital of the company and do not change the par value of shares (hereinafter - contributions to the property of the company).

The property contributed by shareholders as a contribution must belong to the types specified in paragraph 1 of Art. 66.1 of the Civil Code of the Russian Federation, namely:

cash; things, shares (shares) in the authorized (share) capitals of other business partnerships and companies; government and municipal bonds; exclusive, other intellectual rights and rights under license agreements subject to monetary value, unless otherwise provided by law.

At the same time, the provisions of the Civil Code of the Russian Federation on the donation agreement do not apply to contracts on the basis of which contributions are made to the company's property.

notethat the contract, on the basis of which the shareholder makes a contribution to the property of the company, must be preliminarily approved by the decision of the board of directors ( supervisory board) society, with the exception of cases of making contributions to the property of the company, provided for in paragraph 3 of Art. 32.2 of Law No. 208-FZ.

As for the non-public society, there are certain restrictions for it. Thus, the charter of a non-public company may provide for the maximum value of contributions to property, which are made by all or certain shareholders, and other restrictions related to making contributions to the property of a non-public company.

According to paragraph 3 of Art. 32.2 of Law No. 208-FZ, the charter of a non-public company may stipulate that by a decision of the general meeting of shareholders the obligation to make contributions to the property of the company may be imposed on its shareholders, and the procedure, grounds and conditions for making contributions to the property of the company may also be provided. Moreover, if the charter provides for such a possibility, then the decision of the general meeting of shareholders must be adopted unanimously.

In addition, the charter of a non-public company may stipulate that, by a decision of the general meeting of shareholders, it is allowed to impose the obligation to make contributions to the property of a non-public company only on shareholders who own shares of a certain category (type). In this case, the decision of the general meeting of shareholders is adopted by a majority of three quarters of votes of the shareholders participating in the general meeting, provided that all shareholders - holders of shares of each category (type), who are obliged to contribute to the property, have voted unanimously for such a decision non-public society.

In this situation, contributions to the property of a non-public company are made in proportion to the share held by the shareholder in the authorized capital of the non-public company, unless another procedure for determining the amount of contributions to the property of a non-public company is provided for by the charter. In this case, the contribution is made only in cash, unless otherwise provided by the charter or the decision of the general meeting of shareholders of the non-public company.

The obligation to make contributions rests with the persons who were shareholders at the date of such obligation.

In case of failure to fulfill the obligation to make a contribution to the property of a non-public company, the company itself or a shareholder has the right to apply to the court with a claim for the performance of such an obligation (clause 4 of article 32.2 of Law No. 208-FZ).

E.A. Sharonova, economist

Making a contribution to the property of a JSC

How the transmitting and receiving parties reflect the contribution in accounting and tax accounting

About the amendments made to the Law on JSC, as well as what can be made as a contribution to the property of JSC and how to arrange it, read:

Starting from July of this year, shareholders, on a completely legal basis, can make contributions to the property of a joint stock company. Law of 03.07.2016 No. 339-FZ... Such financial help does not increase the authorized capital of JSC and does not change the ratio of shares between owners and the par value of shares. The easiest way is to make a contribution with money, then the question of calculating VAT will not arise at all. If you make a contribution with property, the transferring party will have to charge VAT, but the receiving party will not be able to accept it for deduction.

What is in the account of the transmitting side

Accounting

The procedure for reflecting operations for making contributions to the property of a JSC normative documents on accounting is not separately specified. Therefore, you can apply the procedure for making contributions to an LLC. And there are two approaches here.

APPROACH 1. It is recommended by the Ministry of Finance. He suggests, when making a contribution to property, be guided by PBU 10/99 Letter of the Ministry of Finance dated January 29, 2008 No. 07-05-06 / 18 (section "Submission by the audited entity of information on the contributions of the participants of the limited liability company to the property of the company")... And this means that the transfer of property must be reflected in the debit of account 91-2 "Other expenses" and the credit of the accounting accounts of the transferred property a p. 11 PBU 10/99:

<если> money is deposited - CT account 51 "Current accounts";
<если> property is entered - CT accounts 01 "Fixed assets", 10 "Materials", etc.

APPROACH 2. It is recommended by some auditors. They propose to be guided by PBU 19/02 when making a contribution to property. That is, the contribution to the property of the company should be reflected in the composition of financial investments in the same way as the contribution to the authorized capital (on a separately open subaccount):

Dt account 58 "Financial investments", subaccount "Contribution to the property of JSC", - CT account 75 "Settlements with founders";
Dt accounts 75 - CT accounts 51, 01, 10, etc.

They explain this by the fact that in the future a member (shareholder) of the company will be able to claim money or other assets from these investments. After all, the society will use the received contributions in its activities to make a profit.

However, not everything is so simple. In fact, both approaches have the right to life. And which one to use depends on the purpose of making a contribution to the property, as well as on other factors. Here is what the head of the audit company thinks about this.

EXPERIENCE EXCHANGE

General Director of AKG "Development Vector"

“The point is that costs are an outflow of economic benefits without a guarantee of an equal (or greater) inflow. That is, listing the advance (Dt 60 - Kt 51), the organization does not show the expense, since it is waiting for the goods for the same amount. And when acquiring financial investments (Dt 58 - Kt 51), the organization is guaranteed to have the right to a share in property or in dividends. As soon as this right is no longer guaranteed (for example, the issuer of shares has a bad financial position) - impairment of the asset is required.
Investments in a joint stock company on a non-refundable basis can be either through a contribution to the authorized capital, or in addition to it. When contributing to the authorized capital, the investor has a guaranteed right to dividends, to a certain share of votes in the management of the company and to the property of the company.
With an additional contribution, he does not acquire any of this, that is, the main condition for recognizing financial investments is not met - the ability to generate income in the form of dividends, interest, and value growth. With an additional contribution, such an opportunity is present only conditionally, but by no means guaranteed, as it happens with a contribution to the authorized capital. In this case, the main accounting principle: more willingness to recognize expenses and liabilities than income and assets, therefore an expense is recognized, not an asset. This is especially clearly manifested when additional deposits are made in order to cover losses (which happens in the overwhelming majority of cases).
It is a different matter if the shareholders decide to make contributions for the development of the company (for example, the construction of a new production site). In this case, the recognition of the asset is possible, since after the start of the new production, shareholders have the right to expect an increase in profits and, accordingly, dividends.
Thus, the choice of the way to reflect the contribution depends on the purpose of its introduction (there are no inappropriate contributions, since in order to fork out, the shareholder must understand why he needs to do this - he will not receive shares).
But the purpose of introduction is not the only criterion, the decision making depends on many factors. For example, a shareholder has 1% of the shares, and he must make an additional contribution of 90% of the cost of future construction. Will he be able to get an increase in the funds deposited, that is, to recoup the contribution itself, and to receive an additional inflow through dividends? Hardly. And the shareholder will not be able to profitably sell his small volume of shares, even if the company now has a new plant, since the increase in property will be distributed in favor of the owners of the remaining 99% of the shares. That is, again, when making a contribution, it is required to recognize an expense, not an asset.
Therefore, modern accounting rarely allows you to come up with a rule "for all occasions" - most often the accountant needs to analyze the situation and make a professional decision in order to reliably reflect the impact of each transaction on the property status and financial results. "

With this in mind, you can choose the approach that best suits your situation. Running a little ahead, let's say that if you transfer a fixed asset or materials as a contribution, then the reflection of the contribution as part of financial investments will be an additional argument for you in favor of not charging VAT for such a transfer.

VAT

If your organization applies a simplified system, then when transferring a contribution to the property of a JSC, the issue of VAT does not arise at all. After all, you are not a payer of this tax but clause 2 of Art. 346.11 Tax Code.

Also, there will be no problems with VAT if you apply the general regime and deposit money as a contribution. There is no need to charge tax sub. 1 p. 3 art. 39, sub. 1 p. 2 art. 146 of the Tax Code of the Russian Federation; Letter of the Ministry of Finance dated June 28, 2013 No. 03-07-11 / 24898.

If, in the form of a contribution, you transfer non-monetary assets, for example, fixed assets or materials, then there are two options for action.

OPTION 1. Hassle-free. Agree with the regulatory authorities and charge VAT on the market value of the transferred property sub. 1 p. 1 of Art. 146, paragraph 2 of Art. 154 Tax Code... The fact is that they consider this operation as an ordinary gratuitous transfer of property, which for VAT purposes is recognized as a sale. ; Ministry of Finance of 08.21.2013 No. 03-07-08 / 34198,... And all because the transfer of non-monetary assets as a contribution to the property of the company is not named either in the list of transactions that are not subject to VAT, or in the list of transactions exempted from VAT. clause 2 of Art. 146, art. 149 of the Tax Code.

Although in normal implementation the invoice is drawn up in two copies (for the seller and the buyer), in this case you can draw up one copy. After all, you will not present tax to society, you will have to pay this VAT at the expense of own funds... But you must register the compiled invoice in the invoice journal and the sales book. p. 3 of the Rules for maintaining the book of sales, approved. Government Decree of December 26, 2011 No. 1137 (hereinafter - Resolution No. 1137); p. 3 of the Rules for maintaining a journal of accounting of invoices, approved. Resolution No. 1137.

Well, since when transferring property you will charge VAT, then, of course, you will not have to restore the input VAT previously accepted for deduction on this property. Letters of the Ministry of Finance dated 21.08.2013 No. 03-07-08 / 34198, dated 15.07.2013 No. 03-07-14 / 27452.

OPTION 2. Controversial. Do not charge VAT on the transfer of property, since it is of an investment nature and, as a result, is not recognized as a sale for VAT purposes sub. 4 p. 3 art. 39 of the Tax Code... But before doing this, evaluate whether it is worth the candle.

Firstly, you will most likely have to sue the tax authorities for the non-VAT charge. We will be glad that the courts will certainly support you. Resolution of the CA ZSO dated 18.12.2014 No. A70-11281 / 2013; FAS VVO dated 03.12.2012 No. A29-10167 / 2011... Secondly, since you have recognized the transfer of property as investment, you will have to restore the previously deductible VAT on this property from sub. 1, 2 p. 3 art. 170 of the Tax Code... According to the materials, the tax is restored in full, and for fixed assets - in proportion to the residual value at the date of transfer.

So, the benefit is only possible if the recovered VAT turns out to be much less than the VAT charged on the market value (in case of option 1). Otherwise, there is no point in suing the inspectorate over VAT.

Income tax

For tax purposes, making a contribution to the property of the company has long been regarded by the regulatory authorities as an ordinary donation. And therefore, they do not allow to take into account in the "profitable" expenses neither the value of the transferred property, nor the amount of money contributed to clause 16 of Art. 270 of the Tax Code of the Russian Federation; Letters of the Ministry of Finance dated May 10, 2006 No. 03-03-04 / 1/426, dated March 14, 2006 No. 03-03-04 / 1/222.

Read about when the accrued and recovered VAT can be easily taken into account in income tax expenses, and when this will lead to disputes with the tax authorities:

Also, the tax authorities do not allow to include in expenses and amounts of accrued or recovered VAT on non-monetary property transferred to the contribution. After all, the Ministry of Finance believes that this is an expense associated with the gratuitous transfer of property and Letters of the Ministry of Finance dated 11.03.2010 No. 03-03-06 / 1/123, dated 08.12.2009 No. 03-03-06 / 1/792... If you do take this VAT into account in your expenses, then you will most likely have to defend the legality of your actions in court. And some courts support taxpayers.

What is in the account of the receiving party

Accounting

The Ministry of Finance proposes to reflect the contributions received from the participants on the debit of the property account and the credit of account 83 "Additional capital l" Letters of the Ministry of Finance dated January 29, 2008 No. 07-05-06 / 18 (section "Submission by the audited entity of information on the contributions of the participants of a limited liability company to the company's property"), dated April 13, 2005 No. 07-05-06 / 107:

<если> money is deposited: Dt account 51 "Current accounts" - CT account 83;
<если> property is entered: Dt accounts 01 "Fixed assets", 10 "Materials" - CT account 83.

This operation can be reflected in two records:

Dt account 75 "Settlements with founders" - CT account 83;
Dt accounts 51, 01, 10 - CT account 75.

That is, for JSCs receiving contributions from participants is not income. p. 2 PBU 9/99... And this is correct, because the increase in the value of the property of a joint-stock company occurs for reasons that do not depend on its activities.

Note that the PBU does not separately say at what cost it is necessary to reflect fixed assets or inventories received as a contribution to property. But given that the joint-stock company does not pay anything for it, the property can be taken into account in the same way as the property received free of charge, that is, at the market value and p. 7 PBU 1/2008; clause 9 PBU 5/01; Clause 10 PBU 6/01... In this case, the market value can be considered as agreed by the participants and indicated in the documents on making a non-monetary contribution to the property (agreement between the JSC and the shareholder, the decision of the shareholders).

VAT

When receiving money as a contribution to property, the JSC will not have to charge VAT. After all, their receipt is not associated with payment goods sold (work, service) sub. 2 p. 1 art. 162 of the Tax Code of the Russian Federation; Letter of the Ministry of Finance dated 20.04.2012 No. 03-07-11 / 121.

If, however, you received non-monetary assets as a contribution to property and the shareholder nevertheless issued you an invoice with VAT, you still cannot accept it for deduction. Federal Tax Service letters dated 26.05.2015 No. GD-4-3 / [email protected] ; Ministry of Finance of 27.07.2012 No. 03-07-11 / 197... After all, you do not pay anything for this property, that is, you receive it free of charge. In this case, the invoice is not registered in the purchase book. sub. "A" clause 19 of the Rules for maintaining the book of purchases, approved. Resolution No. 1137... So you do not reflect this VAT either in accounting or in tax accounting.

Income tax

You can not pay income tax on the value of the property received from shareholders if one of two conditions is met.

TELLING THE MANAGER

If the share of a shareholder in the authorized capital of a JSC is less than 50%, then in order to avoid paying income tax, it is necessary that in the contract (decision) it was stated that the contribution to the property is made in order to increase the net assets of the JSC.

CONDITION 1. The property is transferred to you for the purpose of increasing net assets. Then this should be directly indicated in the documents on making contributions (the agreement between the JSC and the shareholder, the decision of the shareholders). At the same time, the size of the share of a shareholder in the authorized capital of a JSC does not matter Letter of the Ministry of Finance dated 09.02.2006 No. 03-03-04 / 1/100 ).

And can the JSC take the received property into account?

If money is received, then there are no problems at all. The cost of fixed assets, inventories, works or services purchased with this money you take into account in expenses in the general order Letter of the Ministry of Finance dated 20.03.2012 No. 03-03-06 / 1/142... That is, in the same way as if you spent your own money on all this.

If fixed assets or inventories are received, then their cost can be taken into account in expenses only if it was taken into account in income. And since in this case you did not take into account anything in income, the tax value of fixed assets and inventories will be equal to zero Letters of the Ministry of Finance dated June 27, 2016 No. 03-03-06 / 1/37164, dated July 27, 2012 No. 03-07-11 / 197.

It turns out that the best investment is money. In this case, both the transmitting and receiving parties have no problems with taxes. Moreover, the JSC will be able to take into account all acquisitions at the expense of the money received.

The creation of an LLC is inextricably linked with the formation of the authorized capital. The founders, as far as they can, make contributions in cash or property, assess their share, and then, in the course of the company's activities, regularly receive dividends. Many entrepreneurs are concerned about the question of whether tax is paid on the authorized capital of an LLC?

Taxation of a share of an individual

There is no information in the Tax Code that the authorized capital is subject to taxation. The shares invested in it are the expenses of the founders themselves, which together form a start-up fund for commercial activities and providing guarantees to creditors. However, the alienation of shares in a company is the sale of property, as a result of which a legal or natural person receives income.

Alienation of company shares is the sale of property.

The share in the authorized capital is the property of the founder, its sale is income for an individual, which is usually taxed at 13%. However, in the situation with company shares, special rates and tax deductions are applied:

1. If the share belonged to the owner - natural person until the moment of alienation for more than 5 years, personal income tax is not paid at all (clause 17.2 of article 217 of the Tax Code of the Russian Federation). However, there is a significant note - the zero rate applies only to those shares that became the property of the founder after January 1, 2011, in accordance with paragraph 7 of Art. 5 FZ No. 395-FZ.

2. A tax deduction in the amount of 250 thousand rubles to 1 million rubles, the founder has the right to receive for the property sold by him, the ownership period of which is less than 3 years (subparagraph 1 of paragraph 2 of article 220 of the Tax Code of the Russian Federation). There is a note for this article: real estate sold by the founder must be acquired by him not earlier than January 1, 2016.

3. Instead of the aforementioned tax deduction, the alienating shareholder may reduce the taxable income received by the amount of expenses related to the acquisition of a share in the authorized capital (money contributed to the Criminal Code, expenses for its increase or acquisition of a share). An important rule: expenses must be confirmed by documents. Otherwise, the founder is given a tax deduction in the amount of not more than 250 thousand rubles on income from the exit from the LLC (subparagraph 2 of paragraph 2 of article 220 of the Tax Code of the Russian Federation).

In the case of company shares, special rates and tax deductions are applied.

After all the deductions made, the remaining amount of income from the sale of a stake in the authorized capital of the company is subject to a flat tax of 13%.

Taxation of a share of a legal entity

As a result of sales, a legal entity is liable for two taxes - income tax and VAT. According to paragraphs. 12 p. 2 art. 149 of the Tax Code of the Russian Federation, in case of sale of a share belonging to a legal entity, VAT is not paid. Although the tax authorities are sometimes controversial about this type of operation. For example, the sale of a company with all its property in the authorized capital is sometimes interpreted as a sale of the property itself, bypassing the tax burden.

For legal entities, clause 1 of Art. 284.2 of the Tax Code of the Russian Federation also provides for a zero income tax rate if the ownership of shares in the authorized capital is more than 5 years. The same rule applies to owners of shares acquired after January 1, 2011. In any other case, the founder - a legal entity can reduce the tax base by the amount of expenses associated with the acquisition of the alienated share (subparagraph 2 of paragraph 1 of article 268 of the Tax Code of the Russian Federation), and then pay a tax of 20%.

Thus, in the process of alienation by the founders, the funds and property of the authorized capital of an LLC, initially “empty” for the tax services, turn into an object of taxation. For individuals and legal entities, deductions and even zero tax rates are provided for long-term ownership of shares. The rules are quite liberal, the conditions are acceptable - at least the state can be thanked for that.

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