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 company's property

I.Yu. Yakovlev,
lawyer of the audit department of the Institute for Entrepreneurship Problems LLC (St. Petersburg),
cand. legal Sciences

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

Active entrepreneurial activity is often carried out by creating not one organization, but a whole group of companies - legal entities, carrying out independent activities for the implementation common purpose often in different areas of business.

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

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

However, 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 contributions are provided for by Article 27 of the Federal Law of February 8, 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 receiving company and the nominal value shares of the latter.

So, the participants of the company are obliged, if it is provided for by the charter of the company, by decision general meeting members of the company to contribute to the property of the company. Contributions to the company's property are made in cash, unless otherwise provided by the company's charter or by a 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 completion is much simpler compared to the change in the authorized capital. Meanwhile, there is currently legal uncertainty in this matter.
The transfer of a contribution to 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 (subclause 1 clause 3 article 39, subclause 1 clause 2 article 146 of the Tax Code of the Russian Federation).

However, uncertainty arises when non-monetary contributions are made to the property of a subsidiary.

Making a non-monetary contribution is the transfer of property on a gratuitous basis, which, according to general rule covered by the concept of the object of VAT taxation by virtue of Article 146 of the Tax Code of the Russian Federation.

At the same time, according to 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 [reserve] capital of business companies and partnerships, contributions to simple partnership agreement [agreement on joint activities], share contributions to mutual funds of cooperatives).

What arguments of the tax authority to prepare for?

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

a contribution to the property of a business entity does not give rise to the obligation of reciprocal performance on the receiving party, which means that attempts by the tax authority to characterize the relationship for making it as gratuitous are possible;
by virtue of the direct indication of paragraph 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 participants in a business 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 a transaction for making a contribution to property;
in accordance with Article 8 of the Federal Law of February 25, 1999 No. 39-FZ “On investment activity v Russian Federation in the form of capital investments” (hereinafter referred to as Law No. 39-FZ), 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.

THE CONCEPT OF A FREE DEAL
(Clause 2, Article 423 of the Civil Code of the Russian Federation)

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

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

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

Investment activity - investment and implementation of practical actions in order to make a profit and (or) achieve another beneficial effect.

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 not corresponding to investment criteria.

Justification of the right not to pay tax

In our opinion, the transaction under consideration still has a pronounced investment character and does not entail the payment of VAT. We present arguments in support of this position.

The list of VAT-free transactions of an investment nature (subclause 4, clause 3, article 39 of the Tax Code of the Russian Federation) is open(when they are listed, 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 directed to when endowing the latter with assets: to transfer property (donation) free of charge or to invest this property in an object entrepreneurial activity in order to increase the efficiency of the business of the receiving party (LLC), and therefore, 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-FZ).

So, for example, the investment nature of the transaction can be confirmed by the fact of the intended use of the property transferred as a contribution in business activities subsidiary organization.

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

Corporate relations between the transferring party (participant) and the receiving party (subsidiary) are by their nature investment. 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 to the authorized capital by a participant, the investment nature of which is directly provided for by law.

The argument of the tax authorities about the formal obligation of the 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 of 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 one-sided (Article 154 of the Civil Code of the Russian Federation).

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

Finally, when resolving disputes by the courts, the opinion was repeatedly expressed that that making a contribution to the property of an LLC is not a free transaction 3 . Such disputes, however, concerned deposits in cash. Concerning the contributions made by other property, a stable law enforcement practice has not developed, although there are single judicial acts that 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 to redistribute 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 us to classify such transactions as investment transactions, and therefore not subject to 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: Decree of the Federal Antimonopoly Service of the Central Organ of February 20, 2007 in case No. A-62-3799/2006.

3 See, for example: the decisions of the Ninth AAC dated 17.08.2010 in case No. А40-164445/09-4-1302, FAS ZSO dated 14.03.2008 in case No. А81-4787/2006 and dated 04.05.2006 in case No. А27- 4692/05-2.

4 See also: Decree of the Federal Antimonopoly Service of the Central Organ of February 20, 2007 in case No. A-62-3799/2006.

Keywords: "contribution to the authorized capital" - "VAT" - "investment" - " state registration» - «legal nature» - «object of taxation

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

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

The change of the owner of the property by concluding a contract of sale is recognized as a sale and entails the need to pay VAT and income tax (when applying common system taxation). If the property is transferred to single group companies, the emergence of tax liabilities is highly undesirable: in fact, the property remains 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. Different situations happen in business and it is necessary to protect key assets from encroachment on them by third parties (creditors, counterparties, raiders and regulators). In addition, the presence of property in the company is an additional incentive for the tax authority to carry out the GNP, since the taxpayer has something to collect possible additional charges from. It is obvious that "vital" property for the business should not be in the risky operating sector.
To launch an investment project. A new promising direction is more logical to start with clean slate, it should not be subject to risks and obligations operating business. In addition, partners who are not involved in your core business may participate in the implementation of the investment project. In this case, the filling of a new project with property (including money) should also occur with the most favorable tax consequences for both the transferring and receiving parties.
When refinancing in a group: redistribution financial flows between related companies (subjects) also requires the exclusion of excessive tax liabilities.

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

Capital contribution.
Contribution to the organization's property (including a "child gift"), including a contribution to property in order to increase net assets.
Reorganization in the form of separation.

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

Nuances	Contribution to the UK	Contribution to property	Contribution to property to increase NA	Extraction procedure
Organizational and legal form of the company receiving the property		Any organization in which the authorized (share) capital is formed: economic partnerships and companies, economic partnership	Established for business partnerships and companies (not applicable to production cooperative, economic partnership)
The amount of shares / shares of the transferring party in the authorized capital of the recipient company		More than 50% (in the case of a "subsidiary gift", the parent company's ownership must also exceed 50%)
Does the size of the share of the transferring party in the Criminal Code change?
Do I need an appraiser to transfer property?		Not necessary	Not necessary	Not necessary
Tax liabilities	For organizations on DOS: no income tax the transferring party is obliged to restore the VAT, the receiving party - can accept for deduction (subject to the application of DOS)	For organizations on DOS: no income tax	For organizations on DOS: no income tax the transferring party must recover the VAT, the receiving party cannot deduct	For organizations on DOS: no income tax the reorganized company has no obligation to accrue VAT or recover it. The host party is also not obliged to recover VAT
Restrictions on the transfer object		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 having a monetary value

Capital contribution

This is the most well-known way of granting property and property rights to a company by its participants. A member of any commercial organization (JSC, LLC, etc.) can make a contribution to the Authorized Capital (MC), both at the stage of company registration and in the course of its activities.

In addition, a contribution to the authorized capital of an LLC can be made by a third party upon joining the membership of the company. In a joint-stock company, a third party can purchase shares during an additional issue - this will be a contribution to the UK. Money, securities, other property or property rights may be contributed to the payment of the authorized capital.

Tax implications

Undoubtedly, real life it is not always possible to "shove" into the framework of the above methods of transferring property. There are a lot of options for consolidating property, most often they are combinations 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 the company's funds, the so-called start-up capital formed during the creation of society. In the future, it can be increased: by increasing the nominal value of shares or by placing additional shares. However, the financing of a joint-stock company can be carried out by shareholders and by a contribution to the property of a joint-stock company that does not increase the authorized capital of the company. Let's analyze how this can be done and what are the limitations.

Key points

Joint stock companies are one of the most common organizational and legal forms commercial organizations operating in the Russian Federation. Legal basis their activities are regulated by:

the Civil Code of the Russian Federation; federal law dated December 26, 1995 No. 208-FZ (as amended on July 3, 2016) “On Joint Stock Companies” (hereinafter - Law No. 208-FZ). A joint-stock company may be public or non-public, which is reflected in its charter and corporate 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 on the terms established by securities laws. All other companies that do not meet these criteria are considered non-public.

The founding document of a joint-stock company is its charter, which, in particular, must contain information about the firm name of the company and its location, conditions on the categories of shares issued by the company, on their nominal value and number, on the size of the company's authorized capital, the rights of shareholders, the composition and the competence of the company's bodies, the procedure for their decision-making.

A joint stock company is considered established 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 nominal value of the company's shares acquired by the shareholders, and it is not allowed to release the 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 JSCs

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 should be 100 thousand rubles, and the minimum authorized capital of a non-public company - 10 thousand rubles.

Note that joint-stock companies are vested 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 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 nominal value of shares or the maximum number of votes belonging to 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 granted to one shareholder, which is 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%. At the same time, public joint-stock company is not entitled to place preferred shares, the nominal value of which is lower than the nominal value of ordinary shares (clause 1, article 102 of the Civil Code of the Russian Federation).

JSC financing 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 issue-grade securities, state registration of reports on the results of an issue (additional issue) of issue-grade securities and registration of securities prospectuses, approved by the Bank of Russia on 11.08.14 No. 428-P (hereinafter - 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 determines 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 Federal Law No. 39-FZ of April 22, 1996 “On the Securities Market” (hereinafter referred to as Law No. 39-FZ), state registration of an issue (additional issue) of emissive securities placed by subscription must be accompanied by registration of a securities prospectus. The securities prospectus must be drawn up in accordance with the Regulations on the Disclosure of Information by Issuers of Equity Securities approved by the Bank of Russia dated December 30, 2014 No. 454-P.

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

Paragraph 2 of Art. 34 of Law No. 208-FZ provides the founders with the opportunity to independently determine, respectively, the form of payment for shares distributed among the founders upon the establishment of the company, as well as additional shares placed by subscription. Such shares may be paid for in cash, securities, other things or property rights or other rights having a monetary value. Payment for additional shares by offsetting monetary claims against the company is allowed if they are placed through a closed 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 emissive securities may only be made in cash.

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

Monetary valuation of property contributed as payment for shares during the establishment of a company is made by agreement between the founders.

In the decision of the Federal Antimonopoly Service of the Moscow District dated 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 funds to determine market value of such property, an appraiser must be involved, unless otherwise provided by federal law. The value of the monetary valuation of 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 paragraph 3 of Art. 34 of Law No. 208-FZ, the involvement of an appraiser when paying for shares in non-cash funds to determine the market value of such property is mandatory.

According to Art. 27 of Law No. 208-FZ, the charter of the company must determine the number, nominal value of shares acquired by shareholders (placed shares), and the rights granted by these shares. Shares acquired and redeemed by the company, as well as 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 company's charter may determine the number, nominal value, categories (types) of shares that the company has the right to place in addition to the already placed shares (declared shares), and the rights granted by these shares. In the absence of these provisions in the charter of the company, it is not entitled to place additional shares.

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

The Company places ordinary shares and has the right to place one or more types of preferred shares. All shares of the company are non-documentary.

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

The rights of holders to equity securities of non-documentary form of issue are certified in the register maintenance system - by entries on personal accounts with the registrar or, in the case of registration of rights to securities in a depositary, by entries on a depo account in depositories (Article 28 of Law No. 39-FZ).

The right to a registered non-documentary security passes to the acquirer, including in the case of registration of rights to securities with a person engaged in depositary activities - from the moment a credit entry is made on the acquirer's depo account (Article 29 of Law No. 39-FZ).

Recall that the accounting of rights to paperless securities is carried out by making entries on accounts by a person acting on behalf of a person liable under a security, or by a person acting on the basis of an agreement with the right holder or with another person who, in accordance with the law, exercises rights under the security. paper. Keeping records of such rights is carried out by a person who has a license provided for by law (clause 2, article 149 of the Civil Code of the Russian Federation). That is, the registration of rights to book-entry securities must 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 by means of 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. So, for example, the situation may develop in such a way that a decision can be made on contributions to property only by individual shareholders or not in equal shares. This right is granted by Art. 32.2 of Law No. 208-FZ, introduced by Federal Law No. 339-FZ of July 3, 2016. In addition, in non-public companies, shareholders may be required 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, shareholders, on the basis of an agreement with the company, have the right, in order to finance and maintain the activities of the company, at any time to make gratuitous contributions to the property of the company in cash or in another form that do not increase the authorized capital of the company and do not change the nominal value of shares (hereinafter - contributions to the property of the company).

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

cash; things, shares (shares) in 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 a gift agreement do not apply to agreements on the basis of which contributions are made to the company's property.

note that the agreement on the basis of which a shareholder makes a contribution to the company's property must be preliminarily approved by a decision of the board of directors ( supervisory board) companies, 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 a non-public company, there are certain restrictions for it. Thus, the charter of a non-public company may provide for the maximum value of contributions to property 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 provide 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 taken unanimously.

In addition, the charter of a non-public company may provide that, by 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 to shareholders - owners of shares of a certain category (type). In this case, the decision of the general meeting of shareholders is made by a three-quarters majority of the votes of the shareholders participating in the general meeting, provided that such a decision is unanimously voted by all shareholders - owners of shares of each category (type), who are responsible for making a contribution to the property non-public society.

In this situation, contributions to the property of a non-public company are made in proportion to the shareholder's share of shares in the charter 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 decision of the general meeting of shareholders of a non-public company.

The obligation to make contributions rests with the persons who were shareholders on the date such obligation arose.

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

E.A. Sharonova, economist

Making a contribution to the property of JSC

How the transferring and receiving parties should reflect the contribution in accounting and tax accounting

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

Since July of this year, the shareholders have been completely legal grounds can make contributions to the property of joint-stock companies and Law of July 3, 2016 No. 339-FZ. Such financial aid does not increase the authorized capital of the JSC and does not change the ratio of shares between the owners and the nominal value of the 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 transferring party

accounting

The procedure for recording transactions for making contributions to the property of JSC normative documents accounting is not specified separately. Therefore, you can apply the procedure in force when making contributions to an LLC. And there are two approaches here.

APPROACH 1. It is recommended by the Ministry of Finance. He proposes to be guided by RAS 10/99 when making a contribution to property Letter of the Ministry of Finance dated January 29, 2008 No. 07-05-06/18 (section “Representation by the audited entity of information on the contributions of participants in a limited liability company to the company’s property”). 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 accounts of the transferred property and clause 11 PBU 10/99:

<если>money is deposited - Kt account 51 "Settlement accounts";
<если>property is brought in - Kt of 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 as part of financial investments in the same way as a contribution to the authorized capital (on a separately opened sub-account):

Dt of account 58 “Financial investments”, sub-account “Contribution to the property of JSC”, - Kt of account 75 “Settlements with founders”;
Dt account 75 - Kt accounts 51, 01, 10, etc.

They explain this by the fact that in the future a participant (shareholder) of the company will be able to claim to receive 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 clear. 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 ACG "Vector of Development"

“The point is that spending is an outflow of economic benefits with no guarantee of an equal (or greater) inflow. That is, when transferring an advance payment (Dt 60 - Kt 51), the organization does not show the expense, since it is waiting for goods for the same amount. And by acquiring financial investments (Dt 58 - Kt 51), the organization is guaranteed the right to a share in property or dividends. As soon as this right is no longer guaranteed (for example, the issuer of shares has a bad financial position) - asset impairment is required.
Investments in a joint-stock company on an irrevocable basis can be either through a contribution to the authorized capital, or in excess of it. When investing in 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, this possibility 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: greater willingness to recognize expenses and liabilities than income and assets, so an expense is recognized rather than an asset. This is especially clear when additional deposits are made to cover losses (which happens in the vast 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, recognition of the asset is possible, since after the start of the new production, the shareholders have the right to expect an increase in profits and, accordingly, dividends.
Thus, the choice of the method for reflecting the contribution depends on the purpose of making it (there are no non-targeted contributions, since in order to fork out, the shareholder must understand why he should do this - he will not receive shares).
But the purpose of the introduction is not the only criterion, the decision 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 receive an increase in the contributed funds, that is, to recoup the contribution itself and receive additional inflow through dividends? Unlikely. And even if the company now has a new plant, the shareholder will not be able to sell his small amount of shares with profit, 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, and not an asset.
Therefore, modern accounting rarely allows you to come up with a rule “for all occasions” - most often, an accountant needs to analyze the situation and make a professional decision in order to reliably reflect the impact of each operation on the financial situation and financial result.

Given the above, you can choose the approach that best suits your situation. Looking ahead a little, 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 on such a transfer.

VAT

If your organization uses 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 paragraph 2 of Art. 346.11 of the Tax Code of the Russian Federation.

There will also be no problems with VAT if you apply the general regime and deposit money. No need to pay 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 of June 28, 2013 No. 03-07-11/24898.

If, however, you are transferring non-monetary assets, such as fixed assets or materials, as a contribution, then there are two options.

OPTION 1. Hassle-free. Agree with regulatory authorities and charge VAT on the market value of the transferred property sub. 1 p. 1 art. 146, paragraph 2 of Art. 154 Tax Code of the Russian Federation. The fact is that they consider this operation as an ordinary gratuitous transfer of property, which, for VAT purposes, is recognized as the sale of ; Ministry of Finance of August 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 exempt from VAT paragraph 2 of Art. 146, Art. 149 Tax Code of the Russian Federation.

Although in the usual implementation the invoice is drawn up in two copies (for the seller and the buyer), in this case you can make it in one copy. After all, you will not present a 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 register and the sales book. Clause 3 of the Rules for keeping a sales book, approved. Decree of the Government dated December 26, 2011 No. 1137 (hereinafter - Decree No. 1137); Clause 3 of the Rules for Keeping a Journal of Accounting for Invoices, approved. Decree No. 1137.

Well, since you accrue VAT when transferring property, then, of course, you will not have to recover the input VAT previously accepted for deduction on this property. Letters of the Ministry of Finance of August 21, 2013 No. 03-07-08 / 34198, of July 15, 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 Tax Code of the Russian Federation. But before you do so, evaluate whether the game is worth the candle.

Firstly, you will most likely have to sue the tax authorities about non-calculation of VAT. We will rejoice that the courts will surely support you. Decrees of AS ZSO dated 12/18/2014 No. A70-11281 / 2013; FAS VVO dated 03.12.2012 No. А29-10167/2011. 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 Tax Code of the Russian Federation. For 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 possible only if the restored VAT is much less than the VAT charged on the market value (under option 1). Otherwise, there is no point in suing the inspectorate for non-calculation of VAT.

income tax

For tax purposes, making a contribution to the property of a company has long been regarded by 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 property transferred, nor the amount of money contributed. paragraph 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.

About when accrued and restored VAT can be easily taken into account in income tax expenses, and when this leads to disputes with tax authorities, read:

Also, the tax authorities do not allow to include in expenses the amounts of accrued or restored 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 nevertheless take into account this VAT in expenses, then you will most likely have to defend the legitimacy 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 participants in the debit of the property accounting 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 “Representation by the audited entity of information on the contributions of participants in a limited liability company to the property of the company”), dated April 13, 2005 No. 07-05-06 / 107:

<если>money is deposited: Dt of account 51 “Settlement accounts” - Kt of account 83;
<если>property is brought in: Dt of accounts 01 “Fixed assets”, 10 “Materials” - Kt of account 83.

This operation can be reflected in two records:

Dt of account 75 “Settlements with founders” - Kt of account 83;
Dt accounts 51, 01, 10 - Kt accounts 75.

That is, for JSCs, receiving deposits from participants is not income. clause 2 PBU 9/99. And this is right, because the increase in the value of the JSC's property occurs for reasons that do not depend on its activities.

Note that PBU does not separately say at what cost fixed assets or inventories received as a contribution to property should be reflected. But given that the joint-stock company does not pay anything for it, it is possible to take into account the property in the same way as the property received free of charge, that is, at market value and clause 7 PBU 1/2008; clause 9 PBU 5/01; clause 10 PBU 6/01. In this case, the market value can be considered the value that is agreed upon 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, JSCs will not have to charge VAT. After all, their receipt is not associated with payment. goods sold(works, services) sub. 2 p. 1 art. 162 of the Tax Code of the Russian Federation; Letter of the Ministry of Finance dated 04.20.2012 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. Letters of the Federal Tax Service dated May 26, 2015 No. GD-4-3 / [email protected]; Ministry of Finance of July 27, 2012 No. 03-07-11/197. After all, you do not pay anything for this property, that is, you receive it free of charge. And in this case, the invoice is not registered in the purchase book sub. "a" p. 19 of the Rules for maintaining a book of purchases, approved. Decree No. 1137. So you do not reflect this VAT either in accounting or in tax accounting.

income tax

On the value of the property received from shareholders, you may not pay income tax if one of two conditions is met.

TELLING THE MANAGER

If the shareholder's share in the authorized capital of the JSC is less than 50%, then in order to avoid paying income tax, it is necessary that in the agreement (decision) it was indicated that the contribution to the property is made in order to increase the net assets of the joint-stock company.

CONDITION 1. The property is transferred to you in order to increase net assets. Then this should be explicitly stated in the documents on making contributions (agreement between the JSC and the shareholder, the decision of the shareholders). At the same time, the size of the shareholder's share in the authorized capital of the JSC does not matter. Letter of the Ministry of Finance dated February 9, 2006 No. 03-03-04/1/100 ).

Can a joint-stock company take into account the received property in expenses?

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 No. 03-03-06/1/142 dated March 20, 2012. That is, in exactly the same way as if they had spent their own funds 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 cost of fixed assets and inventories will be equal to zero Letters of the Ministry of Finance dated 06/27/2016 No. 03-03-06/1/37164, dated 07/27/2012 No. 03-07-11/197.

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

The creation of an LLC is inextricably linked with the formation of the authorized capital. The founders, as far as possible, make contributions in cash or property, evaluate 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 the 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 of 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.

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

1. If the share belonged to the owner - to an individual 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 weighty 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. The founder has the right to receive a tax deduction in the amount of 250 thousand rubles to 1 million rubles for the property sold by him, the holding period of which is less than 3 years (clause 1, clause 2, article 220 of the Tax Code of the Russian Federation). There is also a note for this article: real estate sold by the founder must be acquired by him no earlier than January 1, 2016.

3. Instead of the aforementioned tax deduction, the founder alienating the share may reduce the taxable income received by the amount of expenses associated with the acquisition of a share in the authorized capital (money contributed to the authorized capital, expenses for its increase or the acquisition of a share). Important rule A: Expenses must be supported by documents. Otherwise, the founder is given a tax deduction in the amount of not more than 250 thousand rubles for income from leaving the LLC (clause 2, clause 2, article 220 of the Tax Code of the Russian Federation).

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

After all deductions made, the remaining amount of income from the sale of a share 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 the event of the sale of a share owned by a legal entity, VAT is not paid. Although the tax authorities are sometimes controversial about such operations. For example, the sale of a company with all its property in the authorized capital is sometimes interpreted as the 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 rate for income tax 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 (clause 2, clause 1, article 268 of the Tax Code of the Russian Federation), and then pay a tax of 20%.

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

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