Increase in net assets of the joint-stock company - new opportunities or old problems? Agreement on the forgiveness of debt in order to replenish net assets, a profitable group of companies an increase in extra capital by forgiving debt shareholder

R.A. Simonov

Deputy Director for Corporate Procedures

Is it possible to increase clean assets joint Stock Company Due to gratuitous assistance to his shareholders?

The problem of non-compliance with the size of pure assets (hereinafter cha) the requirements of the legislation is relevant for a significant number of economic societies. In accordance with paragraph 3 of Article 20 of the Federal Law "On Societies with limited liability"(Hereinafter referred to - the Federal Law" On OOO "), paragraph 11 of Article 35 of the Federal Law" On Joint-Stock Companies "(hereinafter - the Federal Law" On JSC ") society can be forcibly liquidated on this basis. The options for bringing the amount of cha in compliance with the requirements of the legislation are a bit, and their list is particularly limited for joint-stock companies (hereinafter - JSC).

First, an increase authorized capital JSC with negative chas is recognized as invalid and FSFR of Russia, and judicial practice . Secondly, if the Federal Law LLC contains provisions on the possibility of making the contributions of participants to the Company's property without increasing the authorized capital (Article 27), then the Federal Law on JSC does not contain similar norms.

At the same time, it is often in solving the issue of the method of increasing chase such options as the gratuitous assistance of participants (shareholders), the forgiveness of debt by participants (shareholders). Meanwhile, these methods deserve separate consideration, especially given the entered into force on 01/01/2011. Changes to the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation). In this article, we will look at the initial situation that remains relevant today, and the novels made by these changes.

Gratuitous transfer of property and property rights from shareholder

Such an option to increase net assets economic society Not contained in the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) and in the norms of legislation on economic societies. The assumption of its admissibility and feasibility of use implies from the analysis of the provisions of Article 251 of the Tax Code of the Russian Federation "Revenues not taken into account when determining the tax base". To such income until 01.01.2011. In accordance with paragraph 11, paragraph 1 of Article 251 of the Tax Code of the Russian Federation did not include income:

"11) in the form of property received by the Russian organization for free of charge:
from the organization, if the authorized (share) capital (fund) of the receiving parties by more than 50 percent consists of the contribution (share) of the transmitting organization;

from the organization, if the charter (share) capital (fund) of the transmitting party by more than 50 percent consists of the contribution (share) of the receiving organization;

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

In this case, the received property is not recognized as income for tax purposes only if the specified property (except for its receipt of its receipt money) Not transmitted to third parties. "

The use of the specified norm caused and evokes disputes relative to some points.

Sometimes there is a question about the principal permissibility of this method of increasing net assets for JSC. Doubts causes the fact that the Federal Law "On Ltd." contains norms about making contributions to the property of the Company, and the Federal Law "On JSC" does not imply such an opportunity. It should be noted that the norms of Article 27 of the Federal Law "On LLC" regulate the corporate effect on the implementation of the rights and obligations of the Company's participants, in particular, assume that the decision of the Supreme Contract - general Assembly Participants about making contributions is mandatory for all participants. While the norms of the Tax Code of the Russian Federation concerning gratuitous assistance suggest an individual nature of the decision and making a transaction from the participant (shareholder), that is, they are not related to the implementation of corporate rights and duties of participants (shareholders). Thus, the provision of free assistance by committing a one-sided deal with a participant (shareholder) or the conclusion of a contract between the participant (shareholder) and the Company cannot be considered invalid only because such transactions are not directly regulated by the laws on LLC or JSC.

The admissibility of the application of claims 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation to relations between the JSC and the shareholder was also supported by the Department of Tax and Customs and Customer Tariff Policy of the Ministry of Finance of the Russian Federation: "Subparagraph 11 of paragraph 1 of Article 251 of the Code is applied regardless of the form in which this society (OJSC, CJSC, LLC, etc.)" is created.

However, the main disputes cause a question as the specified norm of the Tax Code of the Russian Federation is combined with civil law, that is, what is the qualifications of gratuitous assistance from the point of view of the Civil Code of the Russian Federation?

Graterant transfer of property can be qualified in accordance with Article 572 of the Civil Code of the Russian Federation as a gift, and in accordance with paragraphs.4 of paragraph 1 of Article 575 of the Civil Code of the Russian Federation, donation is prohibited commercial organizations. Consequently, legal conflict arises when tax legislation standards provide for the legitimate consequences of transactions that are insignificant from the position of civil law.

This collision causes serious discussions in the theory of law, first of all, on the issue, is it possible in principle a transaction for gratuitous transmission of property from the participant to recognize the gift? This article does not aim to explore the arguments in favor of a particular position. It is worth only to note that there is no unity on this issue, as well as it is not in law enforcement practice: the courts make decisions as in favor of the admissibility of such transactions and recognize them invalid. We give a couple of examples.

"The Tax Code of the Russian Federation allows us to receive the Russian organization for free of charge from the organization, if the authorized capital of the receiving party is more than 50% of the contribution (share) of the transmitting parties. Article 575 of the Civil Code of the Russian Federation in this case is not subject to use."

"As the purpose of payment is indicated on the transfer of a gratuitous contribution with reference to paragraph 11 of part 1 of article 251 of chapter 25 of the Tax Code Russian Federation Guided by paragraph 4 of Part 1 of Article 575, Article 168 of the Civil Code of the Russian Federation, the court reasonably recognized the transaction inappropriate the requirements of the law. "

Thus, with a gratuitous transfer of property from the shareholder - a commercial organization, the main risk is the possibility of recognizing the transaction invalid.

In addition to the risks of recognition of gratuitous assistance to illegal donation, the restrictions imposed by paragraph 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation and the tax-related operations (exception from taxable profits for the recipient) should be taken into account.

With regard to funds, the tax authorities do not question their attribution to property. This position is explained by the fact that in accordance with paragraph 2 of Article 38 of the Tax Code of the Russian Federation under property in tax legislation are understood "Types of civil rights facilities (with the exception of property rights) related to property in accordance with the Civil Code of the Russian Federation", and the Civil Code of the Russian Federation in Article 128 considers the objects of civil rights "Things, including money and securities."

With this date, a change in Article.251 of the Tax Code of the Russian Federation came into force, which again raise the question of the possibilities of using the methods of increasing chase provided by the Tax Code of the Russian Federation. In particular, paragraph 1 was added to PP.3.4, which from taxable profits are excluded, in addition to previously provided, also income "In the form of property, property rights or non-property rights in the amount of their monetary assessment, which transferred to the economic society or partnership in order to increase net assets, including by forming additional capital and (or) funds, relevant shareholders or participants. This rule also applies to increasing net assets of a business company or a partnership with a simultaneous decrease in either the termination of the obligation of a business company or partnership to relevant shareholders or participants, if such an increase in net assets occurs in accordance with the provisions provided for by the legislation of the Russian Federation or the provisions of the constituent documents of the economic company or the partnership, or was a consequence of the will of the shareholder or a member of the economic society, a partnership, and in cases of restoration of the unallocated profits of the economic society or the partnership of non-reported by shareholders or participants of the economic company, the dividend partnership or part of the distributed profit of the economic society or the partnership. "

Thus, tax legislation, regulating the tax consequences of the actions of participants in commercial organizations, allows that net assets, including JSC, can be increased in the following ways:

due to the transfer of property to shareholders, non-property rights;
by pursing by debt shareholders;
due to the dividends unclaimed by shareholders.

Consequently, the tax legislation expands the list of cases when actually gratuitous assistance is recognized as legitimate. In addition, in accordance with the specified norm, all restrictions imposed by claims 11 of paragraph 1 of Art are canceled. 251 Tax Code of the Russian Federation to exemplate such income from income tax:

it does not matter the percentage of participation in the share capital of the shareholder (participant), providing a society of China;
property, property and non-property rights may be transferred as gratuitous assistance;
there are no restrictions on the disposal of property (when applying from PP.11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation, if the property received was implemented until the end of one year from the date of transmission, the right to benefit is lost).

At the same time, in the case of the application of claims 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation, assistance can receive as a subsidiary and a shareholder, in the case of paragraph 3.4 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation, assistance can only be sent from the shareholder to society But not the opposite.

However, the main contradiction is preserved, which exists in connection with the gratuitous transfer of funds, is the question of qualifying such a transaction as a gift, the consequence of which is the ban on such a transaction between commercial organizations. Despite the fact that the rate of tax legislation speaks directly about the purpose of such a transaction - an increase in net assets, in essence, this branch of the legislation establishes only the fiscal consequences of the actions of participants in legal relations, but not the types of obligations regulated by the Civil Code of the Russian Federation.

Is it possible to provide free assistance without a disorder of the prohibition of paragraph 4 of Article 575 of the Civil Code?

One of the options, at first glance, is the provision of assistance to a shareholder - a non-resident of the Russian Federation with subordination of a foreign law transaction, which allows such legal relations. However, such an opportunity is also largely discussion. On the one hand, in accordance with Article 1210 of the Civil Code of the Russian Federation, the principle of autonomy will be enshrined, allowing the parties to the transaction with a foreign element to independently choose the right to the contract.

On the other hand, paragraph 1 of Article 1192 establishes the priority of the special category of imperative norms, the so-called super-perfect standards, excluding the effect of the collisional norm of the Civil Code of the Civil Code, in particular, on the autonomy of the will of the Parties, and the application on its basis of foreign law: "The rules of this section do not affect the effect of the imperative norms of the legislation of the Russian Federation, which, as a result, in the imperative norms themselves or due to their special importance, including the rights and protected interests of civil turnover participants, regulate the appropriate relationships regardless of the right to be applied." .

That is, the selection by the parties to the transaction of foreign law eliminates the need to apply imperative norms, but it cannot be eliminated by the need to apply super-perfect norms. Legislation does not contain a certain list of such rules. In some cases, this is directly indicated in the legislation, for example, by virtue of the provisions of Article 1213 of the Civil Code of the Russian Federation, real estate transactions located on the territory of the Russian Federation are subject only to the legislation of the Russian Federation, regardless of the choice by the parties of the transaction of applicable law. In most cases, the decision on which norms are super-free and act, regardless of the choice of the parties to the right to be applied, is actually accepted by the courts.

Will the ban on Russian legislation on transactions of donation between commercial organizations to act regardless of the choice by the parties of the contract of foreign law? In an affordable judicial authority, the issue has not been studied, therefore the risk of recognizing the transaction is preserved and in the case of gratuitous assistance to the Russian JSC by a foreign shareholder.

The undisputed option in which there are no restrictions on donation is the transfer of funds from the shareholder - an individual:

there is no ban on making gratuitous transactions between individuals and legal entities;
taking into account the provisions of claims 3.4 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation, the percentage of possession of the participant (shareholder) shares (shares) to eliminate the received profits from the taxable base does not matter.

However, the answer to the question is as far as possible to use this option depends on the structure of society and the relationship between shareholders.

conclusions

1. Provision of gratuitous assistance to the shareholder is the most fast way An increase in net assets of JSC is not required to carry out corporate events, appeals to registering authorities (FTS, FSFR, FAS, Rosreestr, if not real estate is transmitted).

2. Gratuitous assistance of the founder - a legal entity carries the risk of recognizing the transaction invalid by the ban on donation between commercial organizations.

Wherein:

the importance of assistance in relation to the consequences should be assessed. The sides of the invalid transaction are obliged to return to each other all received by the transaction. Perhaps in the holding structure, such probable consequences for the parties to the transaction will be less negative compared to the risk of forced liquidation of the subsidiary at the current moment;
the risk looks less significant in the case of transfer of gratuitous assistance from the participant (shareholder) - non-resident of the Russian Federation with the subordination of the transaction by foreign law, which allows the gratuitous nature of the transactions between the shareholder and society;
the risk is absent in case of receipt of gratuitous assistance from the participant (shareholder) - an individual.

3. From the point of view of tax consequences, the provisions of claims 3.4 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation will be more correct in comparison with the provisions of claim 11, paragraph 1 of Article 251. This should be taken into account when issuing contractual, administrative, payment documents, that is, it should be fixed in these documents the purpose of the transfer of property (property rights), so that there are no misunderstandings with the tax authorities in determining the norm to be applied.

Forgiveness of debt

The situation with the forgiveness of debt is largely similar to the situation of gratuitous assistance.

In accordance with Article 415 of the Civil Code of the Russian Federation, the obligation may be discontinued by liberating the lender of the debtor from responsibilities lying on it. PP.3.4. 1 of Article 251 of the Tax Code of the Russian Federation directly says that such income is not taken into account when determining the tax base, if they are made to increase the founder of the Company's net assets. In this regard, the question arises again - is the forgiveness of donation debt?

And again, as in the case of free assistance, there is no unity in the understanding of the disclosure of the debt for the legal theory, as well as the qualifications of such transactions in judicial practice.

With the position of the prohibition, everything is definitely, the courts qualify the forgiveness of the debt as a type of donation and recognize it with insignificant, as contrary to paragraph 4 of Article 575 of the Civil Code of the Russian Federation: "Article 415 of the Civil Code of the Russian Federation established that the obligation stops the liberties by the lender of the debtor from the obligations lying on it out of the meaning of this provision, the forgiveness of debt is estimated by one of the types of donation, and therefore should obey the restrictions and prohibitions established by Chapter 32 of the Civil Code of the Russian Federation."

Another position is to assess the forgiveness of the debt as a unilateral transaction, from which it follows the conclusion about the inapplicability of the provisions on the donation, which is a bilateral transaction.

In addition, this point of view appeals to the argument that the recognition of the forgiveness of debt by a type of donation at all relieves the issue of the existence of the debt forgiveness as an independent institution civil law - What is the point in the independent form of termination of obligations established by Article 415 of the Civil Code of the Russian Federation? After all, it was enough to point out that the liberation of the debtor from the fulfillment of the obligation can be discontinued by the gift in the order of ch.32 GK.

Judicial practice sometimes also supports such an approach: I\u003e "The applicant's argument is insolvented that the forgiveness of debt becomes one of the types of donation and in this regard should obey the prohibitions established by Article 575 of the Civil Code of the Russian Federation. The ban, provided for by Article 575 of the Civil Code of the Russian Federation, does not apply to the forgiveness of debt, since in this case the application of Article 415 of the Civil Code of the Russian Federation would be excluded. The opponents of a similar approach, in turn, say that in this way, through the Institute of Debt Forgiveness, you can easily be a ban on donation between commercial organizations.

Between these two extreme positions there is a third, more suspended. This position is formulated in the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of December 21, 2005. №104. In particular, the situation was considered when, under the forgiveness of the debt, a lender refusal was understood from the payment of interest for the use of cash and penalties for the late return of the loan amount when performing the requirement of returning the principal loan amount. The court agreed with the arguments that in this case there is no fact of donation, stating: "The relationship of the lender and the debt for forgiveness can be qualified as a gift only if the court will be established by the creditor's intention to release the debtor from the obligation to pay debt as a gift." The absence of the creditor's intention to give the debtor may indicate various circumstances, first of all, receiving a lender as a result of the forgiveness of debt of any other benefit in relations with the debtor. In the case considered, the court indicated that "The purpose of making a debt forgiveness transaction was to ensure the return of the amount of debt in an unfamiliated part without appealing to the court, that is, the lender did not have the intention to give the debtor."

Is it possible to apply this position of the Russian Federation to the situation under consideration?

It seems that the answer can be positive. Debt forgiveness in order to increase net assets in the wording of claims 3.4 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation speaks of another intent "Release the debtor from the obligation to pay the debt as a gift". The forgiveness of the debt, motivated by the intention of the debtor's shareholder to increase net assets of the debtor's society, in its essence can be considered as a shareholder receipt of property benefits, that is, to testify the absence of the prohibition of the intention to apply the JSC.

In addition, this argument can be supplemented by those allowed not to consider contributions to the property of LLC. After all, the legitimacy of this action is due to the fact that it is allowed by the Federal Law "On OOO". In other cases, as shown above, the existence of the legislation does not mean the admissibility of its use. The ownership of shares in the authorized capital involves the presence of property interest in relation to society, that is, the receipt of the part of the profits. Making contributions to the Company's property assumes that participants intend to improve it financial condition Not for charitable purposes, but pursue the tasks of the subsequent profit. Thus, it is obligatory for giving a sign of awareness by creditor for granquencing.

Similarly, the shareholder's intention to increase net assets of society testifies to its property interests - the forced liquidation of the JSC on the basis of non-compliance with the requirements of the legislation on the amount of net assets may result in a shareholder not only the loss of the source of dividend income, but also losses in the amount of expenses incurred for the acquisition of shares.

However, before the appearance judicial practice or clarifications of judicial and government agencies by this issue This is just an opinion. Accordingly, as in the case of gratuitous financial assistance, there is a risk of recognition of a transaction for the forgiveness of donation.

From the point of view of tax consequences, the following should be borne.

In relation to the provisions provided for by paragraph 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation, the position of the Ministry of Finance was not always unambiguous from the taxation of the income received during the forgiveness of debt. Previously, the absence of benefits denied, for example: "In the situation under consideration subsidiary organization As a result of the execution of these operations, it does not receive any property from the parent company. In this regard, it does not have grounds for the use of benefits provided for by subparagraph 11 of paragraph 1 of Article 251 of the Code ". The position was then changed, and it was indicated that revenues in the form of funds received under the loan agreement from the organization, if the obligation under the loan agreement was subsequently terminated by the Forgiling of Debt (subject to compliance with the requirements of claims 11, paragraph 1 of Article 251 of the Tax Code of the Russian Federation in With regard to participation in the authorized capital), the income tax purposes are not taken into account.

Considering that the emails of the Ministry of Finance do not have a regulatory nature, no longer canceled the previously published, it is impossible to predict the position of a tax authority in specific situation. Accordingly, when conducting such an operation, it is preferable to use the provisions of the new norm of claims. 3.4 of paragraph 1 of article 251 of the Tax Code of the Russian Federation, which does not doubt the legality of the release of such income from taxation.

The following nuances should also be taken into account:

conclusions

1. If there are payables of the Company on the borrowed obligations to the shareholder, the forgiveness of debt along with the provision of free assistance from the participant (shareholder) is the most prompt way to increase net assets.

2. Exception from varieties of donation of the division of debt forgiveness by a shareholder using the provisions of the provisions of claims 3.4 p.1 of Article.251 of the Tax Code of the Russian Federation, it looks more justified than gratuitous assistance. Nevertheless, the risk of recognizing the transaction is not valid due to the ban on donation between commercial organizations, therefore the risk level depending on the status of the creditor's shareholder looks likewise:

the most risky forgiveness of debt by a legal entity - resident of the Russian Federation;
more contrived recognition by the gift of debt forgiveness by a legal entity - a non-resident of the Russian Federation with subordination of a foreign trade transaction, allowing such transactions;

Letter of the Department of Tax and Customs Tariff Policy of the Ministry of Finance of the Russian Federation of 30.03.2007. №03-03-06 / 1/2010.

Letter of the Department of Tax and Customs Tariff Policy of the Ministry of Finance of the Russian Federation of 14.10.2010. №03-03-06 / 1/646, the letter of the Ministry of Finance of the Russian Federation of January 14, 2011. №03-03-06 / 1/11.

The legislation of the Russian Federation has not been established, which documents may be issued for debt forgiveness. This may be an agreement (contract) or a notice of debt forgiveness drawn up by the lender and sent to the debtor. This follows from Articles 407, 415 of the Civil Code of the Russian Federation and paragraph 1 of Article 9 of the Law of December 6, 2011 No. 402-FZ.

Accounting

In the accounting amount of the debt, a farewell organization, reflect as part of other income on the credit account 91 "Other income and expenses" (paragraph 7 of PBU 9/99). Make wiring:

Debit 60 (66, 67, 75, 76 ...) Credit 91-1
- reflected the amount of debt forgiveness.

This follows from the instructions for the account plan (account 91, 60, 66, 67, 76).

Revenues in the form of a farewell debt reflect as other revenues in reporting periodwhich signed (received) notice (agreement, contract) on debt forgiveness (p. 16 PBU 9/99).

Instead of forgiveness of debt pay for additional contributions to society . That is, to spend a credit of monetary requirements for society (paragraph 4 of Art. 19 of the Law of February 8, 1998 No. 14-FZ).

An example of reflection in the accounting debt debt debt under the contract of delivery

On January 20, LLC Alfa shipped LLC "Trade Firm" Hermes "» Products worth 118,000 rubles. (including VAT - 18,000 rubles). The term of payment of goods according to the supply contract is 21 calendar day from the shipping date.

Since there was a bankruptcy case against "Hermes", "Alpha" was forgiven to the buyer. February 19, "Hermes" received a notice of debt forgiveness in the amount of 118,000 rubles.

Debit 41 credit 60
- 118 000 rub. - acquired goods acquired;

Debit 19 Credit 60
- 18 000 rub. - reflected input VAT on purchased goods.

Debit 60 Credit 91-1
- 118 000 rub. - reflected the amount of debt forgiveness.

An example of reflection in the accounting debt debt debt account under a loan agreement with the organization

On February 28, Alpha LLC provided the TRADE Firm Hermes LLC by the loan in the amount of 500,000 rubles. for a period of March 1 to March 31 (inclusive). The amount of interest payable to the lender for the use of borrowed funds is 4000 rubles.

At the date of return of the loan (March 31), a debt forgiveness was signed, according to which Alpha frees "Hermes" from the duties of returning the loan amount received and paying interest for the use of borrowed funds.

To reflect the operations under the loan agreement, the "Hermes" accountant opened 66 "Calculations for short-term loans and loans" of the subaccount:
- "Calculations on the principal debt";
- "Percentage calculations."

Operations associated with the forgiveness of debt, the "Hermes" accountant reflected in account so.

Debit 51 Credit 66 subaccount "Calculations on the main debt"
- 500 000 rub. - credited to the current account of the loan.

Debit 91-2 Credit 66 subaccount "Percentage calculations"
- 4000 rubles. - accrued interest on the loan obtained;

Debit 66 subaccount "Calculations on the main debt" Credit 91-1
- 500 000 rub. - debt debt on the principal amount of debt;

Debit 66 subaccount "Percentage calculations" Credit 91-1
- 4000 rubles. - debt paid to pay interest on loan.

OPTION: income tax

The amount of forgiven debt (under the purchase agreement of goods, works, services, property rights - including VAT) include in the composition of non-deactive income (paragraph 8 and 18 of Art. 250 Tax Code of the Russian Federation).

Incoming income, recognize the date of signing (obtaining) of the notification (agreements, treaties) on the forgiveness of the debt (sub. 3 of paragraph 4 of Art. 271, paragraph 2 of Art. 273 of the Tax Code of the Russian Federation). Such an order is applied regardless of whether the debt is debt it in this way (the contract of the acquisition of goods, works, services, property rights or loans) and which method uses the organization when calculating income tax.

At the same time, if the debt is debited under the contract of purchase of goods (including for subsequent implementation), works, services, property rights and the organization applies a cash register at the time of signing (obtaining) notification (agreements, agreements) on debt forgiveness, acquired goods (works, services, property rights) will be considered paid. This is explained by the fact that in charge of paragraph 3 of Article 273 of the Tax Code of the Russian Federation understands including another way of termination of the obligation (in this case - the forgiveness of debt) (paragraph 1 of Art. 407, Art. 415 of the Civil Code of the Russian Federation).

If the forgiveness of the debt occurs under a percentage loan agreement, then interest accrued on it also take into account in income (paragraph 18 of Art. 250 Tax Code of the Russian Federation). At the same time, even those forgiven interests that the organization for some reason did not take into account earlier in expenditures (the letter of the Ministry of Finance of Russia of March 31, 2011 No. 03-03-06 / 1/191) is reflected in the income.

With the method of accrual at the time of signing (obtaining) notification (agreements, agreements) on the forgiveness of debt into a decrease in taxable profits. Spicy interest subject to accrual in the current reporting period, but not taken into account at the time of the term of debt (sub. 2, paragraph 1 of Art. 265, paragraph 8 of Art. 272 \u200b\u200bof the Tax Code of the Russian Federation).

Interest include into the calculation of the tax base (clause 1, Article 269, sub. 2, 1 Art. 265 of the Tax Code of the Russian Federation).

Situation: is it necessary to take into account in income when calculating the income tax amount of forgiven debt under the purchase agreement (works, services, property rights)? A debt forgives the founder who has a contribution to the authorized capital of the organization more than 50 percent.

According to the Ministry of Finance of Russia, the amount of forgive debt should increase the taxable income. However, the Federal Tax Service of Russia expressed another position.

The tax base for income tax does not increase only the value of the property received from the founder, whose share in the authorized capital of the organization exceeds 50 percent (sub. 11, paragraph 1 of Art. 251 of the Tax Code of the Russian Federation). As a result, the forgiveness of the debt of the transfer of property does not occur (paragraph 2 of Art. 38 of the Tax Code of the Russian Federation). The specified transaction for tax purposes should be considered as the write-off of accounts payable, which is included in the composition of non-dealer income on the basis of paragraph 18 of Article 250 of the Tax Code of the Russian Federation. No exceptions in order of its taxation by the Tax Code of the Russian Federation are not provided.

Such a conclusion confirms the explanations of the controlling departments (see, for example, the letters of the Ministry of Finance of Russia of April 5, 2010 No. 03-03-06 / 1/232, of March 30, 2007 No. 03-03-06 / 1/201, from March 28, 2006 No. 03-03-04 / 1/295, of March 17, 2006 No. 03-03-04 / 1/27, FTS of Russia of May 22, 2009 No. 3-2-13 / 76) .

However, in a letter dated March 6, 2009 No. 3-2-06 / 32, the FTS of Russia expressed another point of view. As a result of the forgiveness of debt, the organization saves funds, which can be equated to the receipt of money, that is, property (paragraph 3 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 22, 2005 No. 98). Property obtained free of charge from the founder, whose share of participation in the organization exceeds 50 percent, is not recognized as income (sub. 11, 1 Art. 251 of the Tax Code of the Russian Federation). Therefore, this operation should not be subject to income tax.

In addition, in this letter, the Federal Tax Service of Russia indicated that on the issue of accounting for the amount of debt forgiving the founder to return the loan amount, the Ministry of Finance of Russia adheres to a similar position. Since the termination of obligations in cases of debt forgiveness on loan agreements similarly by nature the termination of obligations for the forgiveness of debt for the goods (performed works rendered to the services received by property rights), subparagraph 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation should also be applied to these operations.

In the current situation of the organization, it is necessary to independently decide which of the specified positions to follow. However, in connection with the release of later explanations of the controlling departments, disputes with verifiers may arise. At the same time, in arbitration practice there are examples of court decisions adopted in favor of organizations (see, for example, the definition of you of the Russian Federation dated July 24, 2009 No. You-8675/09, Resolutions of the FAS of the North Caucasus District of May 21, 2009 No. A63-9238 / 2008-C4-37, Central District On November 15, 2007 No. A54-125 / 2007-C13, the North-West District of April 4, 2003 No. A56-39007 / 02).

Tip: There is a way to not take into account in income the amount of debt farewell to the founder under the purchase agreement (works, services, property rights).

Situation: is it necessary to take into account in income when calculating the income tax amount of forgiven debt to return the loan amount? A debt forgives the founder who has a contribution to the authorized capital of the organization more than 50 percent.

According to the Ministry of Finance of Russia, the amount of the farewell loan is not necessary to take into account in income. However, the claims of tax inspectors are not excluded.

The Ministry of Finance of Russia indicates that the amount of the received loan forgiven by the founder, whose share in the authorized capital of the organization exceeds 50 percent, does not need to include in revenues (see, for example, letters of September 30, 2013 No. 03-03-06 / 1/40367 , dated October 21, 2010 No. 03-03-06 / 1/656, dated October 14, 2010 No. 03-03-06 / 1/646). This is explained.

With the forgiveness of the debt on the main loan obligation, the organization actually receives property. Frequently, the received property refers to the composition of non-revenue income (paragraph 8 of Art. 250 Tax Code of the Russian Federation). But for the case when the donor is the founder of the organization, an exception is envisaged. Dividing the received property is not included in the income, if at the time when the notification (agreement) was signed on the forgiveness of debt, the share of the founder in the authorized capital of the organization exceeds 50 percent. This follows from subparagraph 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation.

The Ministry of Finance of Russia is convinced that the condition of the amount of the contribution (share) in the authorized capital should be carried out at the time of the conclusion of a loan agreement (the letter of the Ministry of Finance of Russia of January 31, 2011 No. 03-03-06 / 1/4).

Forgiveness of the principal amount of debt (excluding debt per percent) under the loan agreement may fall under the norm of sub-clause 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation, therefore does not increase the taxable base of the organization.

Agrees with the above point of view and the tax office (see, for example, letters of the Federal Tax Service of Russia of May 22, 2009 No. 3-2-13 / 76, of March 6, 2009 No. 3-2-06 / 32).

However, based on the position of controlling departments on a similar issue of accounting for the amount of debt, farewell to the founder under the purchase agreement (works, services, property rights), it is possible that the irresistible income in the forgiveness of debt under the loan agreement may cause claims from the inspection. The fact is that, if you follow the norms of civil law, the forgiveness of debt is a way of termination of an initial obligation compensated Treaty (Art. 407 and 415 of the Civil Code of the Russian Federation). Therefore, it is impossible to count the amount of forgive debt, including under the loan agreement, for free of charge received property (Article 572 of the Civil Code of the Russian Federation). The specified transaction for tax purposes should be considered as the write-off of accounts payable, which is included in the composition of non-dealer income on the basis of paragraph 18 of Article 250 of the Tax Code of the Russian Federation. No exceptions in terms of the irregular income received from the founder are not provided for this item. Therefore, when the debt is forgred under a loan agreement (as well as in any other agreement), it is necessary to form income.

In the current situation, the organization has the right to independently decide which of the specified positions to follow. All the ambiguities of the legislation are interpreted in favor of taxpayers (paragraph 7 of Art. 3 of the Tax Code).

Cover: There is a way to not take into account in income the amount of debt farewell under the loan agreement.

Together with the agreement on debt forgiveness, it is necessary to issue a protocol of the General Assembly of the Company's participants (shareholders), according to which the property, property or non-property rights are transferred to an increase in net assets (sub. 3.4 of paragraph 1 of Art. 251 of the Tax Code of the Russian Federation). At the same time, the share of the founder in the authorized capital of the organization does not matter. The ability to take advantage of such benefits appeared from January 1, 2011 and applies to the obligations arising from January 1, 2007 (paragraph 1 and 2 of Article 4 of the Law of December 28, 2010 No. 409-FZ).

USN

The amount of forgiven debt both under the purchase agreement (works, services, property rights) and under the loan agreement include in the composition of non-deactive income (paragraph 8 and 18 Article 250, paragraph 1 of Art. 346.15 of the Tax Code of the Russian Federation). Do this on the date of signing (obtaining) of notification (agreements, contracts) on debt forgiveness, regardless of the applied tax object (clause 1, Article 346.17 of the Tax Code of the Russian Federation).

Whether the debtor can take into account in incomes when calculating a single tax of the debt amount, forbidden by the founder, which has contributed to the authorized capital of the debtor more than 50 percent, (Sub. 1, paragraph 1.1 of Art. 346.15 of the Tax Code of the Russian Federation).

If the organization believes single tax From the difference between income and expenses, the cost of purchased goods (works, services) is debited only after payment. Such a payment is considered to be the cessation of obligations at the moment when the notification (agreement, agreement) was signed on debt forgiveness (paragraph 1 of Art. 407, Art. 415 of the Civil Code of the Russian Federation). Therefore, if organizations have forgiven debt for fixed assets, intangible assets or goods acquired for resale, such assets are considered paid and written off in common order (sub. 2 and 4 p. 2 Art. 346.17 of the Tax Code of the Russian Federation). Similarly, the cost of work and services that are not manufactured (paragraph 2 of Article 346.17 of the Tax Code of the Russian Federation) is written off.

To write off the cost of raw materials, components, work, production services, and all that is named in Article 254 of the Tax Code of the Russian Federation, the payment requirement should be performed by specific methods. It is necessary to list money from the current account, deposit on the cashier or pay off the debt in a different way (sub. 1, paragraph 2 of Art. 346.17 of the Tax Code of the Russian Federation). When the debt repayment debt is forgred, it does not happen, so the material costs will not write off. A similar point of view is set out in the letter of the Ministry of Finance of Russia of April 15, 2011 No. 03-11-06 / 2/57.

If organizations forgive debt under a percentage loan agreement, interest will not be able to write off to expenses.

When the tax object is income, no expenses organization takes into account (paragraph 1 of Art. 346.18 of the Tax Code of the Russian Federation).

If the organization pays a single tax on the difference between income and expenses, interest is considered paid at the time of repayment of debt. And when the notification is signed (agreement, contract) on debt forgiveness, this condition is not implemented. Such an order follows from subparagraph 9 of paragraph 1 of Article 346.16 and subparagraph 1 of paragraph 2 of Article 346.17 of the Tax Code of the Russian Federation.

Situation: is it necessary to take into account when calculating a single tax income in the form of a loan amount received from the founder? The founder forgives the debt of the organization. The organization applies simplified.

The answer to this question depends on what part in the authorized capital of the organization constitutes the contribution of this founder.

If the proportion made by the founder is 50 percent or less, the amount of debt debt on the loan is taken into account as part of the income. Also act if the property transferred to the organization as a result of debt forgiveness, during the year was transferred to third parties. This follows from paragraph 1 of Article 346.15 and paragraph 8 of Article 250 of the Tax Code of the Russian Federation. Income Recognize on the date of signing a debt forgiving agreement (clause 1 of article 346.15, paragraph 2 of Art. 273 of the Tax Code of the Russian Federation).

An example of calculations with the founder of the organization for the loan. The share of the founder in the authorized capital of the organization is 45 percent. The organization applies simplist

One of the founders of Alpha LLC is A.V. Lviv. The share made by Lviv to the authorized capital of the organization is 45 percent.

An accountant of the organization took into account the amount of a loan in the calculation of a single tax in the period of signing the debt forgiving agreement (in the first quarter).

If the proportion of the founder is more than 50 percent, the question of incorporating the amount of debt amounts is ambiguous. Insofar as controversial situation Based on the provisions of subparagraph 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation, the conclusions that are contained in it can be guided not only for income tax payers, but also organizations applying simplified (sub. 1, 1.1 of Art. 346.15 of the Tax Code of the Russian Federation).

On account of interest on debt forbidden by the founder, see How to take into account when taxing interest on the loan (loan) .

An example of calculations with the founder of the organization for the loan. The share of the founder in the authorized capital of the organization is more than 50 percent. The organization applies simplist

One of the founders of Alpha LLC is A.V. Lviv. The share made by Lviv to the authorized capital of the organization is 51 percent.

In January, Lviv provided an interest-free loan in the amount of 100,000 rubles. For a period of three months. In March due to heavy financial Regulations Organizations of Lviv forgives "Alpha" debt for the granted loan.

When calculating a single tax, the Alpha Accountant was guided by the position of the Ministry of Finance of Russia. Therefore, it did not include the amount of forgive debt.

ENVD

The object of taxation of ENVD is the imputed income (paragraph 1 of Art. 346.29 of the Tax Code of the Russian Federation). Therefore, the amount of forgive debt on the tax base for UTII will not affect.

Payment of a unified tax provides for exemption, in particular, from the obligation to pay for income tax (clause 4 of Art. 346.26 of the Tax Code of the Russian Federation). If the debtor performs only one species business activitiesto be taxed by UNVD, the amount of forgive debt is considered to be obtained under this regime of taxation. Consequently, such income is exempt from income taxing (clause 4 of Art. 346.26 of the Tax Code of the Russian Federation). A similar conclusion is made in the letters of the Ministry of Finance of Russia of September 22, 2006 No. 03-11-04 / 3/419, dated July 7, 2006 No. 03-11-04 / 3/338. They expressed an opinion on the accounting of other non-union revenues of the Organization on UNVD (for example, the sums of overdue payables).

Outdoor and UHNVD

If the debtor applies the general tax system and pays UTII, it is obliged to lead separate accounting of income, expenditures and economic operations (paragraph 7 of Art. 346.26 of the Tax Code of the Russian Federation). When calculating the income tax in the composition of non-dealer income, include only the amount of forgive debt, which arose as part of the activities on general System taxation.

If the debt is priced by goods (works, services, property rights), which were used in both types of activities, then when writing off the entire amount of non-evaluation income, include in the calculation of the tax base for income tax. This is stated in the letter of the Ministry of Finance of Russia of March 15, 2005 No. 03-03-01-04 / 1/116. This position is based on the fact that current tax legislation does not contain a mechanism for the distribution of non-deactive income between different species Activities.

Forgiveness of debt, the founder is not subject to income tax and USN only if it goes to an increase in net assets?

Under what conditions the forgiveness of debt the founder is not subject to income tax will explain the article.

Question:Financial assistance to increase net assets in income is not taken into account. This rule applies to those situations when, at the request of participants, founders or shareholders, the Company's debt is reduced or terminated. For example, if society did not fulfill the obligations to the participant under a loan agreement or payment of goods, he can forgive debt and send it to an increase in net assets. Thus, he terminates the obligations of the Company under the Agreement (letters of the Ministry of Finance of Russia of July 16, 2015 No. 03-03-06 / 2/40933 and the Federal Tax Service of Russia dated July 20, 2011 No. EF-4-3 / 11698). When determining income on simplified, the same income is not taken into account as when calculating income tax. And therefore financial assistanceobtained from the dependent founder or the one who owns more than 50 percent in the authorized capital of the recipient, when calculating a single tax, also do not take into account. As, however, assistance to an increase in net assets. "How to issue and take into account help from the founder (participant, shareholder): loans, loans, donations, deposits." Or from the founder who owns more than 50% - in any case? What wiring in each case? Dt76 kt 91 - just forgiveness and dt 76 kt 83- Clean assets?

Answer: 1. Yes, only, if it goes to an increase in net assets, as in subparagraph 11 of clause 1 of Article 251 of the Tax Code of the Russian Federation, we are talking about the transfer of property, and when the debt is forgred, there is no transfer of property.

Formally, of course, net assets increase and without any solutions and protocols, but the controlling departments require them to issue.

2. Wiring for debt forgiving Debit 76 Credit 91.

Many are mistaken that if we are talking about increasing net assets, then you need to use an account 83. There is no such norm in the legislation.

83 The account is applied when receiving a contribution to the property of the organization, which is usually accompanied by an increase in net assets and in relation to the contribution and reflect the wiring debit 08, 10, 50, 51 Credit 83.

In this case, there is no contribution to the property, but there is a breakdown of debt in order to increase net assets. They increase in the case of wiring Debit 76 Credit 91, since payables decreases, and other income will eventually affect the section III balance.

Situation: It is necessary to take into account in income when calculating the income tax on the amount of forgiven debt under the purchase agreement (works, services, property rights). Dogged founder who has contributed to the authorized capital of the organization more than 50 percent

According to the Ministry of Finance of Russia, the amount of forgive debt should increase the taxable income. However, the Federal Tax Service of Russia expressed another position.

The tax base for income tax does not increase only the cost of property received from the founder, whose share in the authorized capital of the organization exceeds 50 percent ( sub. 11 p. 1 Art. 251 NK RF). As a result, the forgiveness of the debt of the transfer of property does not occur ( p. 2 art. 38 of the Tax Code of the Russian Federation). The specified operation for tax purposes should be considered as the write-off of accounts payable, which is included in the composition of non-dealer income on the basis of paragraph 18. Articles 250 of the Tax Code of the Russian Federation. No exceptions in order of its taxation by the Tax Code of the Russian Federation are not provided.

Such a conclusion is confirmed by the explanations of the controlling departments (see, for example, the letters of the Ministry of Finance of Russia from April 5, 2010 No. 03-03-06 / 1/232 , march 30, 2007 No. 03-03-06 / 1/201 , march 28, 2006 No. 03-03-04 / 1/295 , of March 17, 2006 No. 03-03-04 / 1/257 , FTS of Russia of May 22, 2009 No. 3-2-13 / 76).

Glavbukh advises: there is a way to not take into account in income the amount of the founder of the debt under the purchase agreement (works, services, property rights).

12.77451 (6,9,24)

Situation: It is necessary to take into account in income when calculating the tax on the income of the farewell debt on the return of the loan amount. Debt forgives the founder who has contributed to the authorized capital of the organization more than 50 percent

According to the Ministry of Finance of Russia, the amount of the farewell loan is not necessary to take into account in income. However, the claims of tax inspectors are not excluded.

The Ministry of Finance of Russia indicates that the amount of the received loan forgiven by the founder, whose share in the authorized capital of the organization exceeds 50 percent, does not need to include in revenues (see, for example, letters september 30, 2013 No. 03-03-06 / 1/40367 , of October 14, 2010 No. 03-03-06 / 1/646). This is explained.

With the forgiveness of the debt on the main loan obligation, the organization actually receives property. Free property received is the composition of non-revenue income ( paragraph 8 of Art. 250 NK of the Russian Federation). But for the case when the donor is the founder of the organization, an exception is envisaged. Dividing the received property is not included in the income, if at the time when the notification (agreement) was signed on the forgiveness of debt, the share of the founder in the authorized capital of the organization exceeds 50 percent. This follows subparagraph 11. Paragraph 1 of Article 251 of the Tax Code of the Russian Federation.

The Ministry of Finance of Russia is convinced that the condition about the amount of the contribution (share) in the authorized capital should be carried out at the time of the conclusion of a loan agreement ( letter of the Ministry of Finance of Russia of January 31, 2011 No. 03-03-06 / 1/4).

Forgiveness of the principal amount of debt (excluding interest debt) under the loan agreement may be subject to the norm subparagraph 11. Paragraph 1 of Article 251 of the Tax Code of the Russian Federation, therefore does not increase the taxable base of the organization.

Agrees with the above point of view and tax office (see, for example, letters of the Federal Tax Service of Russia of May 22, 2009 № 3-2-13 / 76 , of March 6, 2009 № 3-2-06 / 32).

However, based on the position of the controlling departments according to a similar issue of accounting for debt amounts forgiven by the founder under the purchase agreement (works, services, property rights) It is possible that the irregular income in the forgiveness of debt under the loan agreement may cause claims from the inspection. The fact is that, if you follow the norms of civil law, the forgiveness of debt is a way to terminate the obligation at the initial compensated agreement (Art. And the Civil Code of the Russian Federation). Therefore, it is impossible to consider the amount of forgive debt to count the amount of forgiven debt, including the loan agreement. The specified operation for tax purposes should be considered as the write-off of accounts payable, which is included in the composition of non-dealer income on the basis of paragraph 18. Articles 250 of the Tax Code of the Russian Federation. No exceptions in terms of the irregular income received from the founder are not provided for this item. Therefore, when the debt is forgred under a loan agreement (as well as in any other agreement), it is necessary to form income.

In the current situation, the organization has the right to independently decide which of the specified positions to follow. All ambiguities of the legislation are treated in favor of taxpayers ( p. 7 tbsp. 3 of the Tax Code of the Russian Federation).

Glavbukh advises: there is a way to not take into account the amount of debt farewell under the loan agreement.

Situation: It is necessary to take into account when calculating a single tax income in the form of a loan amount received from the founder. The founder forgives the debt of the organization. The organization applies simplist

The answer to this question depends on what part in the authorized capital of the organization constitutes the contribution of this founder.

If the proportion made by the founder is 50 percent or less, the amount of debt debt on the loan is taken into account as part of the income. Also act if the property transferred to the organization as a result of debt forgiveness, during the year was transferred to third parties. This follows paragraph 1 Articles 346.15 I. point 8. Articles 250 of the Tax Code of the Russian Federation. Income recognize on the date of signing the debt forgiveness agreement ( p. 1 Art. 346.15 , NK RF).

An example of calculations with the founder of the organization for the loan. The share of the founder in the authorized capital of the organization is 45 percent. The organization applies simplist

One of the founders of Alpha LLC is A.V. Lviv. The share made by Lviv to the authorized capital of the organization is 45 percent.

In January, Lviv provided an interest-free loan in the amount of 100,000 rubles. For a period of three months. In March, due to the difficult financial situation of the organization, Lviv forgives "Alpha" a debt for the loan.

An accountant of the organization took into account the amount of a loan in the calculation of a single tax in the period of signing the debt forgiving agreement (in the first quarter).

If the proportion of the founder is more than 50 percent, the question of incorporating the income of the amount of debt ambiguous . Since the controversial situation is based on the provisions subparagraph 11. of paragraph 1 of Article 251 of the Tax Code of the Russian Federation, the conclusions that are contained in it can be guided not only for income tax payers, but also organizations applying simplified ( sub. 1 p. 1.1 Art. 346.15 of the Tax Code of the Russian Federation).

Alexander Sorokin answers,

deputy Head of Office operational control FTS of Russia

"CCP must be applied only in cases where the seller provides the buyer, including its employees, a deferment or installments on the payment of their goods, works, services. It is these cases that, in the opinion of the FTS, belong to the provision and repayment of the loan to pay for goods, works, services. If the organization issues a cash loan, receives a return of such a loan or he also receives and returns a loan, the cashier does not apply. When it is necessary to punch a check, see

How to reflect the accounting of the Borrowing Organization (LLC) the fact of forgiveness of the former participant - individual (Bodybud) Debt under an interest-free loan agreement in order to increase net assets of society?

The participant provided an interest-free loan LLC in the amount of 200,000 rubles. Borrowed funds Enrolled on the current account and are sent to pay current expenses. Subsequently, a notice of debt forgiveness was received from the lender in order to increase net assets. At the time of receipt of the LLC notice, the lender is not a more member of the LLC. The organization for income tax applies the method of accrual.

Civil law

The provision of an interest-free loan is made on the basis of a loan agreement concluded in writing, with direct indication in the contract the conditions that the loan is interest. The loan agreement is considered concluded from the moment of the transfer of funds to the Borrower's organization (paragraph 1 of Art. 807, paragraph 1, 3 of Art. 809 of the Civil Code of the Russian Federation).

The obligation under the Agreement may terminate including the forgiveness of debt. The forgiveness of debt is the liberation of the debtor by the lender from the responsibilities lying on it, if it does not violate the rights of others in relation to the property of the lender (paragraph 1 of Art. 407, paragraph 1 of Art. 415 of the Civil Code of the Russian Federation).

The obligation is considered to be terminated from the moment the debtor's notification of the creditor on the forgiveness of the debt, if the debtor will not direct the lender against the debt forgiveness (paragraph 2 of Art. 415 of the Civil Code of the Russian Federation).

It should be noted that forgiveness of the debt debt debt debt issued by the relevant notification of the debtor cannot be considered as a donation, since (in contrast to the gift) it is an expression of the will of one person (the lender), that is, a one-sided transaction (clause 2 of Art. 154 , Art. 155 of the Civil Code of the Russian Federation, determination of the WHAT of the Russian Federation of 08.02.2010 N you-384/10 in case N A65-5037 / 2009-SG-3). The forgiveness of debt can be recognized as a gift only if the court establishes the creditor's intention to release the debtor from the obligation to pay the debt as a gift (Decision of the Presidium of the Wheel of the Russian Federation dated July 15, 2010 N 2833/10 in case N A82-7247 / 2008-99, p. 3 Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of 21.12.2005 N 104 "An overview of the practice of applying arbitration courts of the norms of the Civil Code of the Russian Federation on some grounds for termination of obligations"). Additionally, for the forgiveness of debt, see the transaction guide.

In the situation under consideration, the lender forgives debt under the loan agreement with the condition for the direction of forgiven debt on an increase in net assets of LLC.

Accounting

Obtaining a borrowed funds under the loan agreement does not lead to an increase in the capital of the organization, that is, not recognized income in relation to paragraph 2 of the provisions accounting "Revenues of the organization" PBU 9/99, approved by the Order of the Ministry of Finance of Russia of 06.05.1999 N 32n.

The amount of the received loan is reflected as accounts payables (paragraph 2 of the accounting regulations "Accounting for loans and loan costs" (PBU 15/2008), approved by the Order of the Ministry of Finance of Russia from 06.10.2008 N 107n).

If the debt is forgred under the loan agreement, the amount of the terminated obligation increases the capital of LLC and is recognized as an expiration at the time of receipt of the notification of debt forgiveness. This follows from paragraph 2, 7, 10.6, 16 PBU 9/99.

Accounting records on the operations under consideration are reflected in accounting accounts in the manner, installed instruction According to an accounting plan for financial and economic activities of organizations approved by the Order of the Ministry of Finance of Russia from 31.10.2000 N 94n, and are shown in the posting table.

Organizations

For the purpose of taxation of profit, the funds received under the loan agreement are not included in the organization's income (PP. 10 of paragraph 1 of Art. 251 of the Tax Code of the Russian Federation).

IN general According to official explanations, the amount of forgive debts on loans are considered as the funds obtained and granted the remaining borrower, which are recognized as non-deactive income on the basis of paragraph 2 of Art. 248, p. 8 h. 2 tbsp. 250 NK RF. Such a point of view is confirmed, in particular, the emails of the Ministry of Finance of Russia of 11.10.2011 No. 03-03-06 / 1/652, from 01/31/2011 No. 03-03-06 / 1/4.

According to PP. 3.4 p. 1 Art. 251 of the Tax Code of the Russian Federation are not recognized income of the amount of increasing net assets of the economic company with the simultaneous termination of the obligation of this society to the participants, if such an increase in net assets was a consequence of the will of the Company's participant. Clarifications on the application of the specified norm in terms of the principal amount of the debt (loan amounts) are given in the letters of the Ministry of Finance of Russia of June 25, 2014 No. 03-03-06 / 1/30267, the Federal Tax Service of Russia of 02.05.2012 N DF-3-3 / [Email Protected]

Since in this case, at the time of the conclusion of an agreement on the forgiveness of debt, the lender is not a more member of the LLC, we believe that the norm of PP. 3.4 p. 1 Art. 251 of the Tax Code of the Russian Federation, in the forgiveness of debt on a loan, it cannot be applied. A similar point of view on the application of the norm of PP. 3.4 p. 1 Art. 251 of the Tax Code of the Russian Federation in the forgiveness of debt by a person who is not a more member of the Society applicant, expressed in the letter of the Ministry of Finance of Russia from.

Thus, the amount of a farewell loan in this case is subject to inclusion in the composition of non-revenue income.

	Credit	Amount, rub.	Primary document
At the date of receipt of the loan
Received a loan from the participant			Loan agreement, Execution of the Bank for Calculation Account
At the date of receipt of the debt forgiveness notice
The amount of forgive debt under the loan agreement is recognized as other income			Notification of the Bolt For Debt Forgiveness

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Makarov Pavel

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Hello. I understand, do you have LLC?

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Hello!

A comprehensive list of income not taken into account when determining the tax base for income tax is established in Art. 251 NK.

the federal law From 28.12.2010 N 409-FZ "On Amendments to Selected Legislative Acts of the Russian Federation in terms of regulating dividend payment (profit distribution)" expanded the list of revenues not taken into account when determining the tax base for the income tax.

As a result, on the basis of PP. 3.4 p. 1 Art. 251 NK from taxation released income in the form of property, property rights or non-property rights in the amount of their monetary assessment, which were transferred to the economic society in order to increase net assets, including by forming additional capital corresponding to the participants.

This rule also applies to increasing net assets of the economic company with the simultaneous termination of the obligation of the business society to the relevant participants, if such an increase in net assets was, in particular, by a consequence of the will of the participant in the economic society.

The company did not execute counter obligations stipulated by the loan agreement, and the participant (you) decides to increase net assets (by forming additional capital) of the Company through the above-mentioned property and property rights with the simultaneous termination of the Company's obligations before its participants.

In this regard, for such a situation it is possible to apply PP. 3.4 p. 1 Art. 251 NK and not to take into account revenues in the form of funds transferred to its participants when determining the tax base for income tax.

Good afternoon, Katerina!

Yes, such an opportunity exists:

Article 19 of the Federal Law "On Limited Liability Societies" Increase in the authorized capital of the Company due to the additional contributions of its participants and deposits of third parties accepted into society
1. The general meeting of the Company's participants by the majority of at least two thirds of the votes from the total number of votes of the Company's participants, if the need for a larger number of votes for the adoption of such a decision is not provided for by the Company's Charter, may decide to increase the authorized capital of the Company by making additional contributions to the Company's participants. Such a decision, the total cost of additional contributions should be determined, and the relationship between the cost of an additional contribution of the Company's participant and the amount on which the nominal value of its share increases for all participants in the Company. The specified relation is established based on the fact that the nominal value of the share of the participant in the Company may increase by an amount equal to or less than its additional contribution.
Each participant in the Company is entitled to make an additional contribution that does not exceed the total cost of additional contributions, the proportional to the size of the share of this participant in the authorized capital of the Company. Additional contributions can be made by the Company's participants within two months from the date of adoption by the General Assembly of the Company's Company's participants specified in the present paragraph of this paragraph, if the Company's Charter or the decision of the General Meeting of the Company's participants has not yet established a different period.
Not later than the month, from the date of the deadline for making additional contributions, the general meeting of the Company's participants should decide on the approval of the results of additional contributions by the Company's participants and on introducing changes in the charter of changes related to increasing the size of the Company's share capital. At the same time, the nominal value of the share of each participant in the Company, which made an additional contribution increases in accordance with the first paragraph of this paragraph specified in the paragraph of this paragraph.
2. The general meeting of the participants of the Company may decide to increase its authorized capital on the basis of the application of the Company's member (statements by the Company's participants) on the introduction of an additional contribution and (or), if this is not prohibited by the Company's Charter, the statements of the third person (third-party applications) on adoption His company and deposit. Such a decision is made by all participants in the Company unanimously.
The statement of the Company's member and in a statement of a third party should indicate the size and composition of the contribution, order and period of its introduction, as well as the size of the share that the Company participant or third party would like to have in the authorized capital of the Company. The statement may also contain other conditions for making contributions and entry into society.
Simultaneously with the decision to increase the authorized capital of the Company on the basis of a statement by the Company's member or statements by the Company's participants on making an additional contribution, a decision should be made to make changes to the Charter of the Company in connection with the increase in the authorized capital of the Company, as well as the decision to increase the nominal value of the share The participant in the Company or the share of participants in the Company, submitted applications for an additional contribution, and if necessary, the decision to change the size of the share of participants in the Company. Such decisions are taken by all participants in the Company unanimously. At the same time, the nominal value of the share of each participant in the Company, who submitted an application for an additional contribution increases by an amount equal to or less than its additional contribution.
2.1. An application for state registration of changes provided for by this article in the Company's charter should be signed by a person carrying out the functions of sole executive organ societies. The statement confirms the introduction of additional contributions or deposits by third parties to the Company. Within three years from the date of state registration of the relevant changes in the Charter of the Company, the Company's participants jointly carry the subsidiary responsibility for its obligations in the amount of the value of non-subsequent additional contributions.
The specified statement and other documents for the state registration of changes provided for by this article in connection with the increase in the authorized capital of the Company, an increase in the nominal value of the share of participants in the Company who made additional contributions, the adoption of third parties to society, the determination of the nominal value and the size of their share and if necessary The size of the share of participants in the Company, as well as documents confirming the implementation of the participants in the Company of additional contributions or contributions by third parties, should be submitted to the authority state registration legal entitiesFor a month, from the date of the decision to decide on the approval of the results of additional contributions to the Company's participants in accordance with paragraph 1 of this article or making additional contributions to the Company's participants or third parties on the basis of their applications.
For third parties, such changes acquire strength since their state registration.
3. If an increase in the authorized capital of the Company did not take place, society is obliged to return to the Company's participants and third parties who made mortgage deposits, their deposits, and in case of no return of deposits at the specified period, also pay interest in the manner and within the deadlines provided for in Article 395 Civil Code of the Russian Federation.
Participants in the Company and third parties who have made non-monetary deposits, society is obliged to return their deposits within a reasonable time, and in case of no return of deposits within the specified period, it is also possible to reimburse the beneficial benefits due to the inability to use property contributed as a contribution.
4. By decision of the General Assembly of the Company's participants, adopted by all participants in the Company unanimously, the participants of the Company at the expense of additional contributions and (or) third entities at the expense of contributions to the deposits have the right to consider monetary requirements for society.

Good luck to you!

With respect,
Vasilyev Dmitry.

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Hello Katerina, indeed the Ministry of Finance of the Russian Federation expressed its position regarding the taxation of the participant LLC, with an increase in additional capital of the size of the authorized capital and the nominal value of the participants of this company (without changing the size of the share themselves) in a letter dated May 25, 2007 No. 03-03-06 / 1/324:

"The list of income not taken into account when determining the tax base for income tax established by Art. 251 of the Tax Code of the Russian Federation, does not contain this type of income as the income of the participant in the organization in the form of increasing the nominal value of its share in the authorized capital of the Organization.

Thus, with an increase in the limited liability company of the authorized capital, without changing the share of its participants from the taxpayer, a participant in this society occurs a non-evaluation income, taken into account when taxing on the profit of organizations, in the amount of increasing the nominal value of its share in the authorized capital of a limited liability company. "

Because you are a progenitor and founder, it is possible to change the subject of the loan agreement in such a way that the loan (the result from the loan) will be a contribution to the authorized capital.

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