An increase in the net assets of a joint stock company - new opportunities or old problems? Debt forgiveness agreement for the purpose of replenishing net assets, beneficial for the group of companies Increasing additional capital by forgiving debt by a shareholder

R.A. Simonov

Deputy Director for Corporate Procedures

Is it possible to increase net assets joint stock company due to the gratuitous help of its shareholders?

The problem of inconsistency of the size of net assets (hereinafter - NА) with the requirements of the legislation is relevant for a significant number of business entities. In accordance with clause 3 of article 20 of the Federal Law "On companies with limited liability"(Hereinafter - the Federal Law" On LLC "), clause 11, article 35 of the Federal Law" On Joint Stock Companies "(hereinafter - the Federal Law" On Joint Stock Companies "), the company may be forcibly liquidated on this basis. There are few options for bringing the size of the private equity in line with the requirements of the legislation, and their list is especially limited for joint stock companies (hereinafter - JSC).

First, an increase authorized capital JSC with negative NA is recognized as inadmissible by the Federal Financial Markets Service of Russia, and jurisprudence... Secondly, if the Federal Law on LLC contains provisions on the possibility of participants making contributions to the company's property without increasing the authorized capital (Article 27), then the Federal Law on JSCs does not contain similar norms.

At the same time, when deciding on the method of increasing the NA, often such options as gratuitous assistance from participants (shareholders), debt forgiveness by participants (shareholders) are not considered. Meanwhile, these methods deserve separate consideration, especially considering the ones that entered into force on 01.01.2011. changes to the Tax Code of the Russian Federation (hereinafter - the Tax Code of the Russian Federation). In this article, we will consider the initial situation, which remains relevant today, and the novelties introduced by these changes.

Gratuitous transfer of property and property rights from a shareholder

This option to increase net assets economic society is not contained in the Civil Code of the Russian Federation (hereinafter - the Civil Code of the Russian Federation) and in the norms of legislation on business entities. The assumption about its admissibility and expediency of use follows from the analysis of the provisions of Article 251 of the Tax Code of the Russian Federation "Incomes not taken into account when determining the tax base." To such incomes until 01.01.2011. in accordance with subparagraph 11 of clause 1 of article 251 of the Tax Code of the Russian Federation, income did not include:

"11) in the form of property received by a Russian organization free of charge:

• from the organization, if the authorized (share) capital (fund) of the receiving party consists of more than 50 percent of the contribution (share) of the transferring organization;
• from the organization, if the authorized (share) capital (fund) of the transferring party for 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 consists of more than 50 percent of the contribution (share) of this individual.

In this case, the property received is not recognized as income for tax purposes only if, within one year from the date of its receipt, the specified property (with the exception of Money) is not transferred to third parties. "

The application of this norm has caused and is still causing controversy regarding some points.

Sometimes the question arises about the principled admissibility of this method of increasing net assets for JSCs. Doubts are raised by the fact that the Federal Law "On LLC" contains provisions on 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 corporate action to exercise the rights and obligations of the company's participants, in particular, they assume that the decision of the supreme governing body - general meeting Participants' contribution is obligatory for all participants. At the same time, the norms of the Tax Code of the Russian Federation concerning gratuitous assistance presuppose the individual nature of the decision-making and the transaction on the part of the participant (shareholder), that is, they are not related to the implementation of the corporate rights and obligations of the participants (shareholders). Thus, the provision of gratuitous assistance through the completion of a unilateral transaction by a participant (shareholder) or the conclusion of an agreement between a participant (shareholder) and the company cannot be considered unacceptable only because such transactions are not directly regulated by the laws on LLC or JSC.

The admissibility of the application of clause 11, clause 1 of Article 251 of the Tax Code of the Russian Federation to the relationship between a JSC and a shareholder was also supported by the Department of Tax and Customs and Tariff Policy of the Ministry of Finance of the Russian Federation: "Sub-clause 11 of clause 1 of Article 251 of the Code applies regardless of the form in which this company is created (OJSC, CJSC, LLC, etc.)."

However, the main controversy is the question of how the specified norm of the Tax Code of the Russian Federation is combined with civil law, that is, what is the qualification of gratuitous assistance from the point of view of the Civil Code of the Russian Federation?

Gratuitous transfer of property can be qualified in accordance with Article 572 of the Civil Code of the Russian Federation as a donation, and in accordance with subparagraph 4 of clause 1 of Article 575 of the Civil Code of the Russian Federation, donation between commercial organizations... Consequently, a legal conflict arises when the norms of tax legislation provide for the legal consequences of transactions that are null and void from the standpoint of civil law.

This collision causes serious discussions in the theory of law, first of all, on the question of whether it is possible, in principle, to recognize a transaction on the gratuitous transfer of property from a participant as a gift? This article is not intended to investigate the arguments in favor of a particular position. It is only worth noting that there is no unity on this issue, as well as it is not in law enforcement practice: the courts make decisions both in favor of the admissibility of such transactions and recognize them as invalid. Here are a couple of examples.

"The Tax Code of the Russian Federation allows a Russian organization to receive property from the organization free of charge, if the authorized capital of the receiving party consists of more than 50% of the contribution (share) of the transferring party. Article 575 of the Civil Code of the Russian Federation is not applicable in this case."

"The purpose of the 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 as inappropriate to the requirements of the law. "

Thus, in case of gratuitous transfer of property from a shareholder - a commercial organization, the main risk is the possibility of invalidating the transaction.

In addition to the risks of recognizing gratuitous assistance as illegal donation, one should take into account the restrictions imposed by subparagraph 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation and related to the taxation of transactions (excluding from the composition of taxable profit for the recipient):

With regard to monetary funds, the tax authorities do not question their classification as 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, property in tax legislation is understood as "Types of objects of civil rights (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 refers to the objects of civil rights "Things, including money and securities."

From that date, amendments to article 251 of the Tax Code of the Russian Federation entered into force, which again raise the question of the possibilities of using the methods of increasing the number of hours provided by the Tax Code of the Russian Federation. In particular, in clause 1, clause 3.4 was added, which excludes from taxable profit, in addition to those previously provided, also income “In the form of property, property rights or non-property rights in the amount of their monetary value, which are transferred to a business company or partnership in order to increase net assets, including through the formation of additional capital and (or) funds, by the respective shareholders or participants. This rule also applies to cases of an increase in the net assets of a business company or partnership with a simultaneous decrease or termination of the obligation of the business company or partnership to the 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 business company. or partnership, or was the result of the expression of the will of a shareholder or participant in a business company, partnership, and in the case of restoration of unclaimed shareholders or participants of a business company, partnership, dividends or part of the distributed profit of a business company or partnership as part of retained earnings of a business company or partnership ”.

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

• due to the transfer by shareholders of property, non-property rights;
• due to debt forgiveness by shareholders;
• at the expense of 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 this provision, all restrictions imposed by clauses 11, clause 1 of Art. 251 of the Tax Code of the Russian Federation to exempt such income from income tax:

• the percentage of participation in the authorized capital of a shareholder (participant) who provides free assistance to the company does not matter;
• property, property and non-property rights may be transferred as gratuitous assistance;
• there are no restrictions on the disposal of property (when applying subparagraph 11 of paragraph 1 of article 251 of the Tax Code of the Russian Federation, if the received property was sold before the end of one year from the date of transfer, then the right to the benefit is lost).

At the same time, in the case of application of subparagraph 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation, assistance can be received by both a subsidiary company 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 be sent only from the shareholder to the company but not vice versa.

However, the main contradiction that exists in connection with the gratuitous transfer of funds remains - the issue of qualifying such a transaction as a gift, which results in a ban on such a transaction between commercial organizations. Despite the fact that the norm of tax legislation directly speaks about the purpose of such a transaction - an increase in net assets, in essence, this branch of 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 gratuitous assistance without violating the prohibition of paragraph 4 of Article 575 of the Civil Code of the Russian Federation?

One of the options, at first glance, may be the provision of assistance by a non-resident shareholder of the Russian Federation with the subordination of the transaction to foreign law, which allows such a legal relationship. However, this possibility is also highly debatable. On the one hand, in accordance with Article 1210 of the Civil Code of the Russian Federation, the principle of autonomy of will is enshrined, which allows the parties to a transaction with a foreign element to independently choose the law applicable to their agreement.

On the other hand, Clause 1 of Article 1192 establishes the priority of a special category of peremptory norms, the so-called superimperative norms, excluding the effect of the conflict of laws norm of the Civil Code of the Russian Federation, in particular, on the autonomy of the will of the parties, and the application of foreign law on its basis: "The rules of this section do not affect the operation of those peremptory norms of the legislation of the Russian Federation, which, due to the indication in the peremptory norms themselves or in view of their special significance, including to ensure the rights and legally protected interests of participants in civil turnover, regulate the relevant relations regardless of the applicable law" ...

That is, the choice of foreign law by the parties to the transaction eliminates the need to apply peremptory norms, but in no way can eliminate the need to apply super-peremptory norms. The legislation does not contain a specific list of such norms. In a number of 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, transactions with real estate located on the territory of the Russian Federation are subject only to the legislation of the Russian Federation, regardless of the choice of the applicable law by the parties to the transaction. In most cases, the decision about which rules are super-mandatory and operate regardless of the choice of the applicable law by the parties is actually taken by the courts.

Will there be a ban Russian legislation to act on donation transactions between commercial organizations regardless of the choice of the parties to the contract of foreign law? In the court practice available to the author, the issue has not been investigated, therefore, the risk of the transaction being invalidated remains in the case of a foreign shareholder providing gratuitous assistance to a Russian JSC.

An indisputable option, in which there are no restrictions on donation, is the transfer of funds from a shareholder - an individual:

• there is no prohibition on making gratuitous transactions between individuals and legal entities;
• taking into account the provisions of clause 3.4 of clause 1 of article 251 of the Tax Code of the Russian Federation, the percentage of ownership by a participant (shareholder) of shares (stakes) for excluding the profit received from the taxable base does not matter.

However, the answer to the question of how much it is possible to use this option depends on the structure of the company and the relationship between shareholders.

conclusions

1. The provision of gratuitous assistance by a shareholder is the most fast way increase in the net assets of JSC - no corporate events are required, no appeals to the registering and regulatory authorities (FTS, FFMS, FAS, Rosreestr, if not real estate is transferred).

2. The free assistance of the founder - a legal entity bears the risk of invalidating the transaction due to the ban on donation between commercial organizations.

Wherein:

• the significance of care should be assessed in relation to the consequences. The parties to an invalid transaction are obliged to return to each other everything received under the transaction. Perhaps, in a holding structure, such likely future consequences for the parties to the transaction will be less negative compared to the risk of forced liquidation. subsidiary at the moment;
• the risk looks less significant in the case of the transfer of gratuitous assistance from a participant (shareholder) - a non-resident of the Russian Federation with the transaction subject to foreign law, which allows the gratuitous nature of transactions between the shareholder and the company;
• there is no risk in case of receiving gratuitous assistance from a participant (shareholder) - an individual.

3. From the point of view of tax consequences, it would be more correct to use the provisions of clause 3.4 of clause 1 of article 251 of the Tax Code of the Russian Federation in comparison with the provisions of clause 11 of clause 1 of article 251. This should be taken into account when drawing up contractual, administrative, payment documents, that is, the purpose of the transfer of property (property rights) should be recorded in these documents, so that later there will be no misunderstandings with the tax authorities when determining the norm to be applied.

Debt forgiveness

The situation with debt forgiveness is in many ways similar to the situation with gratuitous aid.

In accordance with Article 415 of the Civil Code of the Russian Federation, the obligation can be terminated by releasing the debtor by the creditor from his obligations. Subclause 3.4 of clause 1 of Article 251 of the Tax Code of the Russian Federation directly states that such income is not taken into account when determining the tax base if they are made with the aim of increasing the company's net assets by the founder. In this regard, the question arises again - is debt forgiveness a gift?

And again, as in the case of gratuitous aid, there is no unity in the understanding of the institution of debt forgiveness in legal theory, as well as in the qualification of such transactions in judicial practice.

With the position of the prohibition, everything is unambiguous, basically the courts qualify debt forgiveness as a kind of gift and recognize it as null and void, as contrary to clause 4 of article 575 of the Civil Code of the Russian Federation: "Article 415 of the Civil Code of the Russian Federation establishes that the obligation is terminated by the release of the debtor by the creditor from his obligations. From the meaning of this provision, debt forgiveness is assessed as one of the types of donation, in connection with which it must obey the restrictions and prohibitions established by Chapter 32 of the Civil Code of the Russian Federation."

Another position is to assess debt forgiveness as a unilateral transaction, from which it follows that the provisions on donation, which is a bilateral transaction, are inapplicable to it.

In addition, this point of view appeals to the argument that recognizing debt forgiveness as a kind of gift generally removes the question of the existence of debt forgiveness as an independent institution. civil law- what is the point in an independent form of termination of obligations established by Article 415 of the Civil Code of the Russian Federation? After all, it was enough to indicate that the release of the debtor from the performance of the obligation can be terminated by donation in the manner of Chapter 32 of the Civil Code.

Judicial practice sometimes also supports this approach: i> “The applicant's argument that debt forgiveness is becoming one of the types of donation is untenable and, therefore, must obey the prohibitions established by Article 575 of the Civil Code of the Russian Federation. The prohibition provided for by Article 575 of the Civil Code of the Russian Federation does not apply to debt forgiveness, since in this case the application of Article 415 of the Civil Code of the Russian Federation would be excluded. Opponents of this approach, in turn, say that in this way, through the institution of debt forgiveness, you can easily get around the ban on donations between commercial organizations.

Between these two extreme positions there is a third, more balanced one. This position is formulated in the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 21, 2005. No. 104. In particular, the situation was considered when the debt forgiveness was understood as the lender's refusal to pay interest for the use of funds and penalties for untimely repayment of the loan amount when the requirement to repay the principal amount of the loan was fulfilled. The court agreed with the arguments that in this case there is no fact of donation, stating: "The relationship of the creditor and the debtor for the forgiveness of the debt can be qualified 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." Various circumstances may indicate the absence of the creditor's intention to bestow gifts on the debtor, primarily the receipt by the creditor as a result of debt forgiveness of any other benefit in the relationship with the debtor. In the considered case, the court indicated that "The purpose of the debt forgiveness transaction was to ensure the return of the amount of the debt in the unforgiven part without going to court, that is, the creditor had no intention to give the debtor a gift."

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

It seems that the answer may be yes. Debt forgiveness in order to increase net assets in the wording of clauses 3.4 of clause 1 of article 251 of the Tax Code of the Russian Federation already speaks of a different intention than "Release the debtor from the obligation to pay the debt as a gift"... Debt forgiveness, motivated by the intention of the creditor shareholder to increase the net assets of the debtor company, in its essence can be considered as the receipt by the shareholder of property benefits, that is, it indicates the absence of a banned intention to bestow on the joint-stock company.

In addition, this argument can be supplemented by those that make it possible not to consider contributions to the LLC property as a donation. After all, the legitimacy of this action is not simply due to the fact that it is allowed by the Federal Law "On LLC". In other cases, as shown above, the existence of a legal norm does not mean the admissibility of its use. Ownership of shares in the authorized capital presupposes the existence of a property interest in relation to the company, that is, the receipt of a part of the profit. Making contributions to the property of the company assumes that the participants intend to improve it financial condition not for charitable purposes, but pursue the task of subsequent profit. Thus, the obligatory sign of donation by the creditor of the donation of the transfer is absent.

Similarly, the intention of a shareholder to increase the company's net assets indicates its property interests - the forced liquidation of a joint-stock company on the basis of non-compliance with the requirements of the legislation on the amount of net assets may entail for the 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 on this issue it's just an opinion. Accordingly, as in the case of gratuitous financial assistance, there is a risk that the debt forgiveness transaction will be recognized as a gift.

In terms of tax implications, the following should be borne in mind.

With regard to the exemption from taxation of income received from debt forgiveness provided for by subparagraph 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. Previously, the absence of the benefit was denied, for example: “In the situation under consideration, the subsidiary does not receive any property from the parent company as a result of these transactions. In this regard, she has no grounds for applying the benefits provided for by subparagraph 11 of paragraph 1 of Article 251 of the Code "... Then the position changed, and it was indicated that income in the form of funds received under the loan agreement from the organization, if the obligation under the loan agreement was subsequently terminated by forgiving the debt (subject to the requirements of subparagraph 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation in in relation to participation in the authorized capital), for tax purposes, profits are not taken into account.

Considering that the letters of the Ministry of Finance are not of a regulatory nature, later ones do not cancel those previously issued, it is impossible to predict the position of one or another tax authority in specific situation... Accordingly, when carrying out such an operation, it is preferable to use the provisions of the new norm of clause 3.4 of clause 1 of article 251 of the Tax Code of the Russian Federation, which leaves no doubt about the legality of the exemption of such income from taxation.

You should also consider the following nuances:

conclusions

1. In the presence of the company's accounts payable for loan obligations to a shareholder, debt forgiveness along with the provision of gratuitous assistance from a participant (shareholder) is the most efficient way to increase net assets.

2. The exclusion of a debt forgiveness transaction by a shareholder from the varieties of donation, using the provisions of clause 3.4 of clause 1 of article 251 of the Tax Code of the Russian Federation as a tax justification, looks more justified than gratuitous assistance. Nevertheless, the risk of the transaction being declared invalid due to the prohibition on donation between commercial organizations remains, therefore the level of risks, depending on the status of the creditor shareholder, looks the same as:

• the most risky is debt forgiveness by a legal entity - a resident of the Russian Federation;
• more controversial is the recognition as a gift of forgiveness of a debt by a legal entity - a non-resident of the Russian Federation with the subordination of the transaction to foreign law that allows such transactions;

Letter of the Department of Tax and Customs Tariff Policy of the Ministry of Finance of the Russian Federation dated 30.03.2007. No. 03-03-06 / 1/201.

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

The legislation of the Russian Federation does not establish what documents can be used to formalize debt forgiveness. It can be an agreement (contract) or a debt forgiveness notice drawn up by the creditor 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 accounting, reflect the amount of debt forgiven by the organization as part of other income on the credit of account 91 "Other income and expenses" (clause 7 of PBU 9/99). Make the wiring:

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

This follows from the instructions to the chart of accounts (accounts 91, 60, 66, 67, 76).

Record income in the form of forgiven debt as other income in that reporting period, in which a notification (agreement, agreement) on debt forgiveness was signed (received) (clause 16 of PBU 9/99).

Instead of forgiving a debt, you can pay additional contributions to society ... That is, to offset the monetary claims on society (clause 4 of article 19 of the Law of February 8, 1998, No. 14-FZ).

An example of the reflection in the accounting of a debtor of forgiveness of a debt under a supply agreement

On January 20, LLC "Alpha" shipped goods to LLC "Trading Firm" Hermes "in the amount of 118,000 rubles. (including VAT - 18,000 rubles). The term of payment for the goods according to the supply agreement is 21 calendar days from the date of shipment.

Since Hermes was filed for bankruptcy, Alpha forgave the debt to the buyer. On February 19, Hermes received a notice of debt forgiveness in the amount of RUB 118,000.

Debit 41 Credit 60
- 118,000 rubles. - the purchased goods are capitalized;

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

Debit 60 Credit 91-1
- 118,000 rubles. - the amount of debt forgiveness is reflected.

An example of reflecting in the accounting of a debtor forgiveness of a debt under a loan agreement with an organization

On February 28, OOO Alpha provided OOO Trading Firm Hermes with a loan in the amount of 500,000 rubles. for a period from March 1 to March 31 (inclusive). The amount of interest payable to the lender for the use of borrowed funds is 4,000 rubles.

As of the date of repayment of the loan (March 31), an agreement was signed on debt forgiveness, according to which "Alpha" releases "Hermes" from the obligation to return the loan amount received and pay interest for the use of borrowed funds.

To reflect the operations under the loan agreement, the Hermes accountant opened subaccounts to account 66 "Settlements for short-term loans and borrowings":
- "Calculations on the principal debt";
- "Calculations by interest".

Operations related to debt forgiveness, the accountant of "Hermes" reflected in the accounting as follows.

Debit 51 Credit 66 subaccount "Calculations of the principal debt"
- RUB 500,000 - the loan amount is credited to the current account.

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

Debit 66 subaccount "Settlements on the principal debt" Credit 91-1
- RUB 500,000 - the debt on the principal amount of the debt was written off;

Debit 66 subaccount "Interest calculations" Credit 91-1
- 4000 rubles. - the debt on the payment of interest on the loan was written off.

OSNO: income tax

The amount of the forgiven debt (under the contract for the purchase of goods, works, services, property rights - including VAT) is included in the non-operating income (clauses 8 and 18 of article 250 of the Tax Code of the Russian Federation).

Recognize non-operating income as of the date of signing (receipt) of a notification (agreement, agreement) on debt forgiveness (subparagraph 3 of paragraph 4 of article 271, paragraph 2 of article 273 of the Tax Code of the Russian Federation). This procedure applies regardless of which contract the debt is written off in this way (the contract for the purchase of goods, works, services, property rights or a loan) and what method the organization uses when calculating income tax.

At the same time, if the debt is written off under an agreement for the purchase of goods (including for subsequent sale), works, services, property rights, and the organization uses the cash method at the time of signing (receiving) a notification (agreement, agreement) on debt forgiveness, the purchased goods (works, services, property rights) will be considered paid. This is explained by the fact that by payment, clause 3 of Article 273 of the Tax Code of the Russian Federation understands, among other things, another way of terminating an obligation (in this case, debt forgiveness) (clause 1 of article 407, article 415 of the Civil Code of the Russian Federation).

If debt forgiveness occurs under an interest-bearing loan agreement, then the interest accrued on it should also be taken into account in income (clause 18 of article 250 of the Tax Code of the Russian Federation). At the same time, the income reflects even those forgiven interest that the organization, for some reason, did not take into account earlier in the expenses (letter of the Ministry of Finance of Russia dated March 31, 2011 No. 03-03-06 / 1/191).

When using the accrual method at the time of signing (receipt) of a notification (agreement, agreement) on debt forgiveness, write off the interest that is to be accrued in the current reporting period, but not taken into account at the time of debt forgiveness, to reduce taxable profit (subparagraph 2, clause 1 of article 265, Clause 8 of Article 272 of the Tax Code of the Russian Federation).

Include interest in the calculation of the tax base (clause 1 of article 269, subparagraph 2 of clause 1 of article 265 of the Tax Code of the Russian Federation).

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

According to the Ministry of Finance of Russia, the amount of the forgiven debt should increase taxable income. However, the Federal Tax Service of Russia expressed a different position as well.

The tax base for income tax is not increased only by the value of property received free of charge from the founder, whose share in the authorized capital of the organization exceeds 50 percent (subparagraph 11, clause 1 of article 251 of the Tax Code of the Russian Federation). As a result of debt forgiveness, the transfer of property does not occur (clause 2 of article 38 of the Tax Code of the Russian Federation). For tax purposes, this operation should be considered as writing off accounts payable, which is included in non-operating income on the basis of paragraph 18 of Article 250 of the Tax Code of the Russian Federation. The Tax Code of the Russian Federation does not provide for any exceptions in the procedure for its taxation.

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

However, in a letter dated March 6, 2009 No. 3-2-06 / 32, the Federal Tax Service of Russia expressed a different point of view. As a result of debt forgiveness, the organization saves money, which can be equated with receiving money, that is, property (clause 3 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 22, 2005, No. 98). Property received free of charge from the founder, whose share of participation in the organization exceeds 50 percent, is not recognized as income (subparagraph 11, clause 1 of article 251 of the Tax Code of the Russian Federation). Therefore, this transaction 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 forgiven by 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 under loan agreements is similar in nature to the termination of obligations by forgiving debt for the goods supplied (work performed, services rendered, property rights received), subparagraph 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation should also apply to these operations.

In this situation, the organization needs to independently decide which of these positions to follow. However, in connection with the release of later clarifications of the controlling agencies, disputes with the auditors may arise. At the same time, in arbitration practice there are examples of court decisions taken in favor of organizations (see, for example, the definition of the Supreme Arbitration Court of the Russian Federation of July 24, 2009 No. No. А63-9238 / 2008-С4-37, Central District of November 15, 2007 No. A54-125 / 2007-C13, North-West District of April 4, 2003 No. A56-39007 / 02).

Advice: there is a way not to take into account in income the amount of the debt forgiven by the founder under the contract for the purchase of goods (works, services, property rights).

Situation: Do I need to take into account in income when calculating income tax the amount of the forgiven debt on the return of the loan amount? The debt is forgiven by the founder who has a contribution in the authorized capital of the organization of more than 50 percent.

According to the Ministry of Finance of Russia, the amount of the forgiven loan should not be taken into account in income. However, the claims of tax inspectors are not ruled out.

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

When the debt is forgiven for the main loan obligation, the organization actually receives the property free of charge. The property received free of charge is included in non-operating income (clause 8 of article 250 of the Tax Code of the Russian Federation). But for the case when the founder of the organization acts as a donor, an exception is provided. The property received gratuitously is not included in the income if at the time when the notification (agreement) on debt forgiveness is signed, 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 on the amount of the contribution (share) in the authorized capital must be fulfilled at the time of the conclusion of the loan agreement (letter of the Ministry of Finance of Russia dated January 31, 2011 No. 03-03-06 / 1/45).

Forgiveness of the principal amount of debt (excluding interest arrears) under a loan agreement may fall under the provisions of subparagraph 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation, therefore, the taxable base of the organization does not increase.

The tax department also agrees with the stated point of view (see, for example, letters of the Federal Tax Service of Russia dated May 22, 2009 No. 3-2-13 / 76, dated March 6, 2009 No. 3-2-06 / 32).

However, based on the position of the controlling departments on a similar issue of accounting for the amount of debt forgiven by the founder under the agreement for the purchase of goods (works, services, property rights), it is possible that non-reflection of income when forgiving debt under the loan agreement may cause claims from the inspectors. The fact is that, if you follow the rules of civil law, debt forgiveness is a way to terminate the obligation under the original reimbursable contract(Articles 407 and 415 of the Civil Code of the Russian Federation). Therefore, it is impossible to consider the amount of a forgiven debt, including under a loan agreement, as property received free of charge (Article 572 of the Civil Code of the Russian Federation). For tax purposes, this operation should be considered as writing off accounts payable, which is included in non-operating income on the basis of paragraph 18 of Article 250 of the Tax Code of the Russian Federation. There are no exceptions regarding non-reflection of income received from the founder with respect to this clause. Therefore, when forgiving debt under a loan agreement (as well as under any other agreement), it is necessary to generate income.

In this situation, the organization has the right to independently decide which of these positions to follow. All ambiguities in the legislation are interpreted in favor of taxpayers (clause 7 of article 3 of the Tax Code of the Russian Federation).

Tip: there is a way not to take into account the amount of the debt forgiven by the founder under the loan agreement in the income.

Together with the debt forgiveness agreement, it is necessary to draw up the minutes of the general meeting of the company's participants (shareholders), according to which property, property or non-property rights are transferred to the organization to increase net assets (subparagraph 3.4 of paragraph 1 of article 251 of the Tax Code of the Russian Federation). At the same time, the size of the share of the founder in the authorized capital of the organization does not matter. The opportunity to take advantage of such a benefit appeared on January 1, 2011 and applies to obligations arising from January 1, 2007 (paragraphs 1 and 2 of article 4 of the Law of December 28, 2010 No. 409-FZ).

For more on this, see .

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

The amount of interest when forgiving a debt must be taken into account as part of non-operating income (clause 18 of article 250 of the Tax Code of the Russian Federation).

This is explained as follows. At its core, interest is a fee that the borrower must pay for the use of borrowed funds in accordance with the loan agreement (Article 809 of the Civil Code of the Russian Federation). Therefore, when a debt is forgiven, the organization's accounts payable are written off (Article 415 of the Civil Code of the Russian Federation). The legislation does not provide for any exceptions in the order of its taxation.

This position is reflected in the letters of the Ministry of Finance of Russia dated September 30, 2013 No. 03-03-06 / 1/40367, dated October 14, 2010 No. 03-03-06 / 1/646, dated April 17, 2009 No. 03- 03-06 / 1/259.

The tax department confirms the stated point of view (see, for example, letters of the Federal Tax Service of Russia dated May 22, 2009 No. 3-2-13 / 76, the Federal Tax Service of Russia for Moscow dated December 29, 2008 No. 19-12 / 121854).

However, in a letter dated March 6, 2009 No. 3 -2-06 / 32, the Federal Tax Service of Russia expressed a different point of view.

As a result of debt forgiveness, the organization saves money, which can be equated with receiving money, that is, property (clause 3 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of December 22, 2005, No. 98). Property received free of charge from the founder, whose share of participation in the organization exceeds 50 percent, is not recognized as income (subparagraph 11, clause 1 of article 251 of the Tax Code of the Russian Federation). Therefore, this transaction 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 forgiven by the founder to return the loan amount, the Ministry of Finance of Russia adheres to a similar position. Since the forgiveness of the principal debt under loan agreements is similar in nature to the termination of interest obligations on loans, subparagraph 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation should also apply to these operations.

An example of the reflection in accounting and in taxation of the amount of interest on a loan provided by the founder. The debt has been written off by debt forgiveness. The organization applies a common taxation system

One of the founders of Alpha LLC is Manufacturing firm"Master"". The share of the "Master" in the authorized capital of the organization is 51 percent.

On January 17, "Master" provided "Alpha" with a loan in the amount of 200,000 rubles. at 15 percent per annum for a period of two months (not a leap year). According to the terms of the agreement, interest is paid no later than the 20th day of the next month. The organization did not receive any other loans.

On February 16, the management of "Master" made a decision to forgive the debt on the loan provided. When reflecting the debt forgiveness operation, the accountant was guided by the position of the Ministry of Finance of Russia.

The following postings were made in the accounting.

Debit 51 Credit 66
- 200,000 rubles. - received a loan from the founder of the organization.

Debit 91-2 Credit 66
- 1151 rubles. (200,000 rubles × 15%: 365 days × 14 days) - interest for January was calculated.

Alfa pays income tax on a monthly basis using the accrual method. When calculating income tax for January, the accountant took into account the interest on the loan in the amount of 1151 rubles as part of non-operating expenses.

Debit 91-2 Credit 66
- 1315 rubles. (RUB 200,000 × 15%: 365 days × 16 days) - interest accrued for February;

Debit 66 Credit 91-1
- 200,000 rubles. - the amount of the forgiven debt on the loan received was attributed to other income of the organization;

Debit 66 Credit 91-1
- 2466 rubles. (1151 rubles + 1315 rubles) - interest on the forgiven debt was charged to other income.

When calculating income tax in February, the accountant took into account the interest on the forgiven debts as part of income - 2,466 rubles. (1151 rubles + 1315 rubles).

As part of non-operating expenses, the accountant took into account the interest on the loan in the amount of 1315 rubles.

Advice: there is a way not to take into account the amount of the debt forgiven by the founder in the form of interest under the loan agreement in income.

Together with the debt forgiveness agreement, it is necessary to draw up the minutes of the general meeting of the company's participants (shareholders), according to which property, property or non-property rights are transferred to the organization to increase net assets (subparagraph 3.4 of paragraph 1 of article 251 of the Tax Code of the Russian Federation). At the same time, the size of the share of the founder in the authorized capital of the organization does not matter. The opportunity to take advantage of such a benefit appeared on January 1, 2011 and applies to obligations arising from January 1, 2007 (paragraphs 1 and 2 of article 4 of the Law of December 28, 2010 No. 409-FZ).

For more on this, seeHow to register and record the receipt of financial assistance from the founder (participant, shareholder) .

Situation: Do I need to recover VAT on the amount of the forgiven debt under the contract for the purchase of goods (works, services, property rights)? Goods (works, services, property rights) purchased for use in transactions subject to VAT.

There is no need.

Debt forgiveness by the seller (executor) leads to a decrease in the buyer's (customer's) obligations to pay for goods (works, services, property rights supplied to him (Articles 407, 415 of the Civil Code of the Russian Federation) .However, the price of the contract and the amount of VAT previously presented for the forgiveness of the debt remain unchanged. The buyer has the right to deduct the amount of VAT presented by the seller (performer) simultaneously with the posting of goods (works, services, property rights) (clause 2 of article 171, clause 1 of article 172 of the Tax Code of the Russian Federation). ) the right to deduct input VAT does not depend.Therefore, if the delivered goods (works, services, property rights) were taken into account, and the amount of VAT was allocated in a correctly drawn up invoice, then the application of the tax deduction by the buyer (customer) is considered justified.

The list of conditions under which the buyer (customer) must recover VAT accepted for deduction is given in paragraph 3 of Article 170 of the Tax Code of the Russian Federation. Debt forgiveness, that is, the seller's (executor's) refusal to receive payment for the delivered goods (work, services, property rights), is not specified in this list. Therefore, there is no reason to restore the input VAT in the situation under consideration.

The ruling of the Constitutional Court of the Russian Federation of November 4, 2004 No. 324-O, according to which, upon forgiving a debt, the buyer (customer) must restore input VAT, has now lost its relevance. The reason for this conclusion was the fact that when the debt is forgiven, the buyer (customer) does not bear the actual costs of paying VAT. Since 2006, the payment of VAT to the seller (performer) has been excluded from the list of conditions required for the application of the tax deduction (clause 21 of article 1, clause 1 of article 5 of the Law of July 22, 2005 No. 119-FZ). Therefore, in relation to transactions performed in later periods, the clarifications of the Constitutional Court of the Russian Federation are not applied.

STS

The amount of the forgiven debt both under the agreement for the purchase of goods (works, services, property rights) and under the loan agreement should be included in non-operating income (clauses 8 and 18 of article 250, clause 1 of article 346.15 of the Tax Code of the Russian Federation). Do this on the date of signing (receipt) of a notification (agreement, agreement) on debt forgiveness, regardless of the applicable object of taxation (clause 1 of article 346.17 of the Tax Code of the Russian Federation).

Whether the debtor can take into account in income when calculating the single tax the amount of debt forgiven by the founder who has a contribution to the debtor's charter capital of more than 50 percent, (Subclause 1, clause 1.1 of Art. 346.15 of the Tax Code of the Russian Federation).

If the organization considers single tax from the difference between income and expenses, the cost of purchased goods (works, services) is written off only after payment. Such payment is also considered to be the termination of obligations at the moment when a notice (agreement, agreement) on debt forgiveness is signed (clause 1 of article 407, article 415 of the Civil Code of the Russian Federation). Therefore, if organizations have forgiven a debt for fixed assets, intangible assets or goods purchased for resale, such assets are considered paid and are written off to general order(subparagraphs 2 and 4 of clause 2 of article 346.17 of the Tax Code of the Russian Federation). Similarly, the cost of works and services that are not of a production nature are written off (clause 2 of article 346.17 of the Tax Code of the Russian Federation).

In order to write off the cost of raw materials, components, work, services of a production nature and everything that is named in article 254 of the Tax Code of the Russian Federation as part of material costs, the payment requirement must be fulfilled in specific ways. It is necessary to transfer money from the current account, pay it to the cashier or pay off the debt in another way (subparagraph 1 of paragraph 2 of article 346.17 of the Tax Code of the Russian Federation). When a debt is forgiven, the debt is not repaid, so material expenses cannot be written off. A similar point of view is stated in the letter of the Ministry of Finance of Russia dated April 15, 2011 No. 03-11-06 / 2/57.

If organizations forgive a debt under an interest-bearing loan agreement, interest cannot be written off as an expense.

When the object of taxation is income, the organization does not take into account any expenses (clause 1 of article 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 debt repayment. And when a notification (agreement, agreement) is signed on debt forgiveness, this condition is not met. This procedure 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 the single tax income in the form of the loan amount received from the founder? The founder forgives the debt of the organization. The organization applies a simplification.

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

If the share contributed by the founder is 50 percent or less, consider the amount of the loan debt written off as income. Do the same if the property transferred to the organization as a result of debt forgiveness was transferred to third parties during the year. This follows from paragraph 1 of Article 346.15 and paragraph 8 of Article 250 of the Tax Code of the Russian Federation. Recognize income on the date of signing the debt forgiveness agreement (clause 1 of article 346.15, clause 2 of article 273 of the Tax Code of the Russian Federation).

An example of settlements with the founder of an organization for a loan provided. The share of the founder in the authorized capital of the organization is 45 percent. Organization applies simplification

One of the founders of Alpha LLC is A.V. Lviv. The share contributed by Lvov in the authorized capital of the organization is 45 percent.

The accountant of the organization took into account the amount of the loan when calculating the single tax during the period of signing the debt forgiveness agreement (in the first quarter).

If the share of the founder is more than 50 percent, the question of including the amount of the written off debt in the income is controversial. 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 contained in it can be guided not only by payers of income tax, but also by organizations applying the simplified tax code (subparagraph 1 of paragraph 1.1 of article 346.15 of the Tax Code of the Russian Federation).

For the accounting of interest on debt forgiven by the founder, see. How to take into account in taxation the interest on the received loan (credit) .

An example of settlements with the founder of an organization for a loan provided. The share of the founder in the authorized capital of the organization is more than 50 percent. Organization applies simplification

One of the founders of Alpha LLC is A.V. Lviv. The share contributed by Lvov in the authorized capital of the organization is 51 percent.

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

When calculating the single tax, Alpha's accountant was guided by the position of the Russian Ministry of Finance. Therefore, he did not include the amount of the forgiven debt in the income.

UTII

The object of taxation of UTII is imputed income (clause 1 of article 346.29 of the Tax Code of the Russian Federation). Therefore, the amount of the forgiven debt will not affect the tax base for UTII.

The payment of a single tax provides for exemption, in particular, from the obligation to pay income tax (clause 4 of article 346.26 of the Tax Code of the Russian Federation). If the debtor carries out only one type entrepreneurial activity taxable UTII, the amount of the forgiven debt is considered received under this tax regime. Consequently, such income is exempt from income tax (clause 4 of article 346.26 of the Tax Code of the Russian Federation). A similar conclusion was made in the letters of the Ministry of Finance of Russia dated 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-operating income of the organization on UTII (for example, the amount of overdue accounts payable).

OSNO and UTII

If the debtor applies the general taxation system and pays UTII, he is obliged to maintain separate accounting of income, expenses and business transactions (Clause 7 of Art. 346.26 of the Tax Code of the Russian Federation). When calculating income tax in the structure of non-operating income, include only the amount of forgiven debt that arose as part of activities on common system taxation.

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

Debt forgiveness by the founder is not subject to income tax and only if it goes to increase net assets?

Under what conditions the forgiveness of debt by the founder is not subject to income tax will be explained in the article.

Question: Financial assistance to increase net assets is not included in income. This rule also applies to those situations when, at the request of the participants, founders or shareholders, the company's debt to them is reduced or terminated. For example, if a company has not fulfilled its obligations to a participant under a loan agreement or payment for goods, he can forgive the debt and use it to increase net assets. Thus, he terminates the company's obligations under the agreement (letters of the Ministry of Finance of Russia dated July 16, 2015 No. 03-03-06 / 2/40933 and the Federal Tax Service of Russia dated July 20, 2011 No. ED-4-3 / 11698). When determining income on the simplified tax system, the same income is not taken into account as when calculating income tax. So, financial aid, received from a dependent founder or someone who owns more than 50 percent in the authorized capital of the recipient, is also not taken into account when calculating the single tax. As, however, and help to increase net assets. "How to register and take into account assistance from the founder (participant, shareholder): loans, loans, donations, contributions." Or from a founder holding more than 50% - anyway? What are the transactions in each case? Dt76 Kt 91 - just forgiveness and Dt 76 Kt 83 - net assets?

Answer: 1. Yes, only if it goes to increase net assets, since subparagraph 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation deals with the transfer of property, and with the forgiveness of the debt, there is no transfer of property.

Formally, of course, net assets increase without any decisions and protocols, but the controlling departments require them to be formalized.

2. Posting at debt forgiveness Debit 76 Credit 91.

Many are mistaken that if we are talking about an increase in net assets, then account 83 should be used. There is no such norm in the legislation.

83 account is used 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 posting Debit 08, 10, 50, 51 Credit 83.

In this case, there is no contribution to the property, but there is debt forgiveness in order to increase net assets. They increase if you post Debit 76 Credit 91, as payables decrease, and other income will eventually be reflected in section III of the balance sheet.

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

According to the Ministry of Finance of Russia, the amount of the forgiven debt should increase taxable income. However, the Federal Tax Service of Russia expressed a different position as well.

The tax base for income tax is not increased only by the value of property received free of charge from the founder, whose share in the authorized capital of the organization exceeds 50 percent ( sub. 11 p. 1 art. 251 of the Tax Code of the Russian Federation). As a result of debt forgiveness, the transfer of property does not occur ( clause 2 of Art. 38 of the Tax Code of the Russian Federation). For tax purposes, this operation should be considered as writing off accounts payable, which is included in non-operating income based on paragraph 18 article 250 of the Tax Code of the Russian Federation. The Tax Code of the Russian Federation does not provide for any exceptions in the procedure for its taxation.

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

The chief accountant advises: there is a way not to take into account in the income the amount of the debt forgiven by the founder under the contract for the purchase of goods (works, services, property rights).

12.77451 (6,9,24)

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

According to the Ministry of Finance of Russia, the amount of the forgiven loan should not be taken into account in income. However, the claims of tax inspectors are not ruled out.

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

When the debt is forgiven for the main loan obligation, the organization actually receives the property free of charge. The property received free of charge is included in non-operating income ( clause 8 of Art. 250 Tax Code). But for the case when the founder of the organization acts as a donor, an exception is provided. The property received gratuitously is not included in the income if at the time when the notification (agreement) on debt forgiveness is signed, the share of the founder in the authorized capital of the organization exceeds 50 percent. This follows from subparagraph 11 paragraph 1 of Article 251 of the Tax Code of the Russian Federation.

The Ministry of Finance of Russia is convinced that the condition on the amount of the contribution (share) in the authorized capital must be fulfilled at the time of the conclusion of the loan agreement ( letter of the Ministry of Finance of Russia dated January 31, 2011 No. 03-03-06 / 1/45).

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

The tax department also agrees with the stated point of view (see, for example, letters of the Federal Tax Service of Russia dated May 22, 2009 No. 3-2-13 / 76 , dated March 6, 2009 No. 3-2-06 / 32).

However, based on the position of regulatory agencies on a similar issue of accounting for the amount of debt forgiven by the founder under the contract for the purchase of goods (works, services, property rights), it is possible that the non-reflection of income when forgiving a debt under a loan agreement may cause claims from the side of the inspectors. The fact is that, if you follow the norms of civil law, debt forgiveness is a way to terminate the obligation under the original compensated contract (Art. And Civil Code of the Russian Federation). Therefore, it is impossible to consider the amount of a forgiven debt, including under a loan agreement, as property received free of charge (). For tax purposes, the specified operation should be considered as writing off accounts payable, which is included in non-operating income based on paragraph 18 article 250 of the Tax Code of the Russian Federation. There are no exceptions regarding non-reflection of income received from the founder with respect to this clause. Therefore, when forgiving debt under a loan agreement (as well as under any other agreement), it is necessary to generate income.

In this situation, the organization has the right to independently decide which of these positions to follow. All ambiguities in the legislation are interpreted in favor of taxpayers ( clause 7 of Art. 3 of the Tax Code of the Russian Federation).

The chief accountant advises: there is a way not to take into account the amount of the debt forgiven by the founder under the loan agreement in the income.

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

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

If the share contributed by the founder is 50 percent or less, consider the amount of the loan debt written off as income. Do the same if the property transferred to the organization as a result of debt forgiveness was transferred to third parties during the year. This follows from paragraph 1 Articles 346.15 and paragraph 8 article 250 of the Tax Code of the Russian Federation. Recognize income at the date of signing the debt forgiveness agreement ( clause 1 of Art. 346.15, Tax Code of the Russian Federation).

An example of settlements with the founder of an organization for a loan provided. The share of the founder in the authorized capital of the organization is 45 percent. Organization applies simplification

One of the founders of Alpha LLC is A.V. Lviv. The share contributed by Lvov in the authorized capital of the organization is 45 percent.

In January Lviv provided Alfa with 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, Lvov forgives "Alpha" the debt on the loan provided.

The accountant of the organization took into account the amount of the loan when calculating the single tax during the period of signing the debt forgiveness agreement (in the first quarter).

If the share of the founder is more than 50 percent, the question of including the amount of the written off debt in the income ambiguous... Since the controversial situation is based on the provisions subparagraph 11 Clause 1 of Article 251 of the Tax Code of the Russian Federation, the conclusions contained in it can be guided not only by payers of income tax, but also by organizations applying the simplified simplification ( sub. 1 clause 1.1 of Art. 346.15 Tax Code of the Russian Federation).

Alexander Sorokin answers,

Deputy Head of Department operational control FTS of Russia

“CCP should be used only in cases where the seller provides the buyer, including his employees, with a deferral or installment plan for payment for his goods, works, services. These cases, according to the Federal Tax Service, relate to the provision and repayment of a loan to pay for goods, works, services. If an organization issues a cash loan, receives a return of such a loan, or receives and returns a loan itself, do not use the cashier. When exactly you need to punch a check, see

How to reflect in the accounting of a borrowing organization (LLC) the fact of forgiveness by a former participant - natural person(lender) of debt under an interest-free loan agreement in order to increase the net assets of the company?

The participant provided the LLC with an interest-free loan in the amount of 200,000 rubles. Borrowed funds were credited to the current account and sent for payment running costs... Subsequently, a debt forgiveness notice was received from the lender in order to increase the net assets of the LLC. At the time the LLC receives the notification, the lender is no longer a member of the LLC. The organization uses the accrual method for profit tax purposes.

Civil law relations

An interest-free loan is provided to an organization on the basis of a loan agreement concluded in writing, with a direct indication in the agreement of the condition that the loan is interest-free. The loan agreement is considered concluded from the moment the lender transfers funds to the account of the borrowing organization (clause 1 of Art. 807, clauses 1, 3 of Art. 809 of the Civil Code of the Russian Federation).

Obligation under the contract can be terminated including debt forgiveness. Debt forgiveness is the release by the creditor of the debtor from his obligations, if this does not violate the rights of other persons in relation to the creditor's property (clause 1 of article 407, clause 1 of article 415 of the Civil Code of the Russian Federation).

The obligation is considered terminated from the moment the debtor receives the notification of the creditor about the forgiveness of the debt, if the debtor does not send objections to the forgiveness of the debt to the creditor within a reasonable time (clause 2 of article 415 of the Civil Code of the Russian Federation).

Note that the lender's forgiveness of the debt to repay the loan, formalized by the appropriate notification of the debtor, cannot be considered as a gift, since (unlike donation) it is an expression of the will of one person (the lender), that is, a unilateral transaction (clause 2 of article 154 , Article 155 of the Civil Code of the Russian Federation, Determination of the Supreme Arbitration Court of the Russian Federation of 08.02.2010 N VAS-384/10 in case N A65-5037 / 2009-SG-3). Debt forgiveness 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 (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of 15.07.2010 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 December 21, 2005 N 104 "Review of the practice of application by arbitration courts of the norms of the Civil Code of the Russian Federation on some grounds for termination of obligations"). For more information on debt forgiveness, see the Transaction Guide.

In the situation under consideration, the lender forgives the debt under the loan agreement on the condition that the amount of the forgiven debt is sent to increase the net assets of the LLC.

Accounting

The receipt by the organization of borrowed funds under the loan agreement does not lead to an increase in the capital of the organization, that is, it is not recognized as income in relation to paragraph 2 of the Regulation on accounting"Income of the organization" PBU 9/99, approved by the Order of the Ministry of Finance of Russia dated 06.05.1999 N 32n.

The amount of the loan received is reflected as accounts payable (clause 2 of the Accounting Regulations "Accounting for expenses on loans and credits" (PBU 15/2008), approved by Order of the Ministry of Finance of Russia dated 06.10.2008 N 107n).

When a debt is forgiven under a loan agreement, the amount of the terminated obligation increases the capital of the LLC and is recognized as other income at the time the notification of debt forgiveness is received. This follows from clauses 2, 7, 10.6, 16 PBU 9/99.

Accounting records for the transactions under consideration are reflected in the accounting accounts in the order, established by the Instruction on the application of the Chart of accounts for accounting of financial and economic activities of organizations, approved by Order of the Ministry of Finance of Russia dated October 31, 2000 N 94n, and are given in the table of entries.

Corporate income tax

For profit tax purposes, the funds received under the loan agreement are not included in the organization's income (subparagraph 10 of paragraph 1 of article 251 of the Tax Code of the Russian Federation).

V general case according to official explanations, the amounts of forgiven debts on loans are considered as funds received and free of charge at the disposal of the borrower, which are recognized as non-operating income on the basis of paragraph 2 of Art. 248, paragraph 8, part 2 of Art. 250 of the Tax Code of the Russian Federation. This point of view is confirmed, in particular, by the Letters of the Ministry of Finance of Russia dated 11.10.2011 N 03-03-06 / 1/652, dated 31.01.2011 N 03-03-06 / 1/45.

According to paragraphs. 3.4 clause 1 of Art. 251 of the Tax Code of the Russian Federation are not recognized as income of the amount of an increase in the net assets of a business entity with the simultaneous termination of the company's obligations to the participants, if such an increase in net assets was the result of the will of a participant in the company. Clarifications on the application of this provision in terms of the principal amount of the debt (loan amount) are given in the Letters of the Ministry of Finance of Russia dated June 25, 2014 N 03-03-06 / 1/30267, the Federal Tax Service of Russia dated May 02, 2012 N ED-3-3 / [email protected]

Since in this case, at the time of the conclusion of the debt forgiveness agreement, the lender is no longer a participant in the LLC, we believe that the norm of paragraphs. 3.4 clause 1 of Art. 251 of the Tax Code of the Russian Federation when forgiving a debt on a loan cannot be applied. A similar point of view on the application of the norm of paragraphs. 3.4 clause 1 of Art. 251 of the Tax Code of the Russian Federation, when forgiving a debt by a person who is no longer a member of the company applying the simplified tax system, is stated in the Letter of the Ministry of Finance of Russia dated.

Thus, the amount of the forgiven loan in this case must be included in the non-operating income.

		Credit	Amount, rub.	Primary document
On the date of the loan
Received a loan from a participant				Loan agreement, Bank statement on current account
As of the date of receipt of notification of debt forgiveness
The amount of the debt forgiven under the loan agreement is recognized as other income				Debt Forgiveness Notice to Lender

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Hello. As far as I understand, you have an LLC?

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Hello!

An exhaustive list of incomes that are not taken into account when determining the tax base for income tax is established in Art. 251 NK.

the federal law dated 28.12.2010 N 409-FZ "On Amendments to Certain Legislative Acts of the Russian Federation Regarding the Regulation of Dividend Payment (Profit Distribution)" expanded the list of incomes not taken into account when determining the tax base for corporate income tax.

As a result, on the basis of paragraphs. 3.4 clause 1 of Art. 251 of the Tax Code exempted income in the form of property, property rights or non-property rights in the amount of their monetary value, which were transferred to a business company in order to increase net assets, including through the formation of additional capital, by the relevant participants.

This rule also applies to cases of an increase in the net assets of a business entity with the simultaneous termination of the entity's obligations to the relevant participants, if such an increase in net assets was, in particular, a consequence of the will of a participant in the business entity.

The company has not fulfilled the counter obligations stipulated by the loan agreement, and the participant (you) makes a decision to increase the net assets (by forming additional capital) of the company at the expense of the previously transferred property and property rights with the simultaneous termination of the company's obligations to its participants.

In this regard, for such a situation, it is possible to apply paragraphs. 3.4 clause 1 of Art. 251 of the Tax Code and do not take into account income in the form of funds transferred by its participants when determining the tax base for income tax.

Good afternoon, Katerina!

Yes, there is such a possibility:

Article 19 of the Federal Law "On Limited Liability Companies" Increase in the authorized capital of a company due to additional contributions of its participants and contributions of third parties accepted into the company

1. The general meeting of the company's participants by a majority of at least two-thirds of votes of the total number of votes of the company's participants, if the need for a larger number of votes for making such a decision is not provided for by the charter of the company, may decide to increase the charter capital of the company by making additional contributions by the company's participants. Such a decision should determine the total cost of additional contributions, as well as establish a single ratio for all members of the company between the cost of the additional contribution of a member of the company and the amount by which the nominal value of his share increases. The specified ratio is established on the basis that the nominal value of the share of a participant in the company may increase by an amount equal to or less than the value of his additional contribution.

Each member of the company has the right to make an additional contribution not exceeding a part of the total cost of additional contributions, proportional to the size of the share of this member in the authorized capital of the company. Additional contributions may be made by the company's participants within two months from the date of the adoption by the general meeting of the company's participants of the decision specified in the first paragraph of this paragraph, unless a different period is established by the charter of the company or the decision of the general meeting of the company's participants.

Not later than one month after the end of the term for making additional contributions, the general meeting of the company's participants must make a decision on approving the results of making additional contributions by the company's participants and on making changes to the company's charter related to an increase in the amount of the company's authorized capital. In this case, the nominal value of the share of each participant in the company who made an additional contribution increases in accordance with the ratio specified in the first paragraph of this clause.

2. The general meeting of members of the company may decide to increase its authorized capital on the basis of an application by a member of the company (applications of members of the company) to make an additional contribution and (or), if this is not prohibited by the charter of the company, an application of a third party (applications of third parties) to accept it to society and contributing. This decision is taken by all members of the company unanimously.

The application of the company participant and the application of a third party must indicate the size and composition of the contribution, the procedure and term for its introduction, as well as the size of the share that the company participant or a third party would like to have in the authorized capital of the company. The application may also indicate other conditions for making contributions and joining the company.

Simultaneously with the decision to increase the charter capital of the company on the basis of an application by a participant in the company or applications of the participants in the company about making an additional contribution by him or by them, a decision must be made to amend the charter of the company in connection with an increase in the charter capital of the company, as well as a decision to increase the par value of the share. a participant in the company or the shares of the participants in the company who have submitted applications for making an additional contribution, and, if necessary, a decision to change the size of the shares of the participants in the company. Such decisions are taken by all members of the company unanimously. In this case, the nominal value of the share of each participant in the company who has submitted an application for making an additional contribution, increases by an amount equal to or less than the value of his additional contribution.

2.1. An application for state registration of the amendments to the charter of the company provided for by this article must be signed by a person performing the functions of a sole proprietor. executive body society. The application confirms that the participants of the company have made additional contributions or contributions by third parties in full. Within three years from the moment of state registration of the relevant amendments to the charter of the company, the participants of the company jointly bear, in the event of insufficiency of the company's property, subsidiary liability for its obligations in the amount of the value of not made additional contributions.

The specified application and other documents for state registration of the changes provided for by this article in connection with an increase in the authorized capital of the company, an increase in the nominal value of the shares of the company's participants who have made additional contributions, the acceptance of third parties into the company, the determination of the nominal value and size of their shares and, if necessary, with a change the size of the shares of the company's participants, as well as documents confirming the full making of additional contributions or contributions by third parties by the company's participants, must be submitted to the body that carries out state registration legal entities, within a month from the date of the decision to approve the results of making additional contributions by the company's participants in accordance with paragraph 1 of this article or making additional contributions by the company's participants or third parties on the basis of their applications.

For third parties, such changes take effect from the moment of their state registration.

3. If the increase in the authorized capital of the company did not take place, the company is obliged, within a reasonable time, to return to the participants of the company and third parties who made deposits in cash, their contributions, and in case of non-return of deposits within the specified period, also to pay interest in the manner and within the time frame provided for in Article 395 Of the Civil Code of the Russian Federation.

To the members of the company and third parties who have made non-monetary contributions, the company is obliged to return their contributions within a reasonable time, and in case of non-return of contributions within the specified period, also to compensate for lost profits due to the inability to use the property contributed as a contribution.

4. By the decision of the general meeting of the company's members, adopted by all members of the company unanimously, the members of the company are entitled to set off monetary claims against the company on account of their additional contributions and (or) third parties on account of their contributions.

Good luck to you!

Sincerely,
Dmitry Vasiliev.

received
fee 10%

Hello Katerina, indeed, the Ministry of Finance of the Russian Federation expressed its position on the taxation of an LLC participant when the size of the authorized capital and the nominal value of the shares of the participants in this company increases due to the additional capital (without changing the size of the shares themselves) in a letter dated May 25, 2007 N 03-03-06 / 1/324:

“The list of incomes 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 such a type of income as the income of a participant in an organization in the form of an increase in the nominal value of his share in the authorized capital of an organization.

Thus, when a limited liability company increases its authorized capital without changing the shares of its participants, a taxpayer who is a member of this company generates non-operating income, which is taken into account when levying corporate income tax, in the amount of an increase in the nominal value of his share in the authorized capital of a limited liability company. "

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

 

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