Contribution to the authorized capital by the property of a subsidiary. Making a contribution to the property of a joint-stock company. Income tax

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

Taxation of a share of an individual

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

Alienation of company shares is the sale of property.

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

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

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

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

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

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

Taxation of a share of a legal entity

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

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

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

In accounting, reflect the founder's contribution to the company's property as follows:

Debit 50, 51, 52 (08, 10, 41 ...) Credit 83

- money (fixed assets, materials, goods, etc.) was received from the founders as a contribution to the property of the organization.

If property is received as a contribution from the founder, then in accounting it must be assessed according to the current market value... This requirement is imposed by accounting legislation for objects received free of charge (clause 10.3 of PBU 9/99). The expert opinion of the appraiser can be used to confirm the price.

Advice: to account for contributions to the property of the organization, use account 75 "Settlements with founders".

This account is intended to summarize information on all settlements with the founders (Instructions for the chart of accounts). Accounting for this account is carried out in the context of settlements with each founder. This will allow you to control who paid off their debt on deposits and who did not.

When using account 75, reflect the operations for receiving a contribution to the property of the organization as follows:

Debit 75 Credit 83

- reflects the debt of the founder on the contribution to the property of the organization;

Debit 50, 51, 52 (08, 10, 41 ...) Credit 75

- the debt of the founder on the contribution to the property of the organization has been repaid.

An example of how to reflect in accounting the monetary ruble contribution of a participant to the property of an organization

The authorized capital of OOO "Trading Firm" Hermes "is 400,000 rubles. It is divided into shares between two participants: 60 percent of the authorized capital belongs to A.V. Lvov, and 40 percent - Alpha LLC.

The charter of "Hermes" states that the founders are obliged to make contributions to the property of the organization. On April 16, the general meeting of founders decided to invest 50,000 rubles in the property of the organization within a month.

• DDP - 20,000 rubles. (RUB 50,000 × 40%).

Debit 75 Credit 83
- 30,000 rubles. - the amount of lviv's debt on the contribution to the organization's property is reflected;

Debit 75 Credit 83
- 20,000 rubles. - reflected the amount of debt "Alpha" on the contribution to the property of the organization.

Debit 51 Credit 75
- 30,000 rubles. - Lvov contributed money as a contribution to the property of the organization;

Debit 51 Credit 75
- 20,000 rubles. - Alfa contributed money as a contribution to the organization's property.

An example of how to reflect in accounting the monetary currency contribution of the founder to the property of the organization

The authorized capital of OOO "Trading Firm" Hermes "is 400,000 rubles. It is divided into shares between two participants: 60 percent of the authorized capital belongs to A.V. Lvov, and 40 percent - foreign organization DDP.

The charter of "Hermes" states that the founders are obliged to make contributions to the property of the organization. On April 16, the general meeting of founders decided to invest 225,000 euros in the property of the organization within a month.

On April 20, the founders deposited their shares in the organization's current account in the following amounts:

• Lviv - 135,000 EUR (225,000 EUR × 60%);
• DDP - 90,000 EUR (225,000 EUR × 40%).

The conditional euro exchange rate was:

• as of the date of the decision on making a contribution to the property of the organization - 60 rubles / EUR;
• on the date of payment of the deposit - RUB 65 / EUR.

The accountant of the organization reflected these operations as follows.

Debit 75 Credit 83
- 8,100,000 rubles. (135,000 EUR × 60 rubles / EUR) - reflects the amount of Lviv's debt on the contribution to the organization's property;

Debit 75 Credit 83
- 5,400,000 rubles. (90,000 EUR × 60 rubles / EUR) - reflects the amount of DDP's debt on the contribution to the organization's property.

Debit 52 Credit 75
- 8,775,000 rubles. (135,000 EUR × 65 rubles / EUR) - Lvov contributed money as a contribution to the organization's property;

Debit 52 Credit 75
- 5,850,000 rubles. (90,000 EUR × 65 rubles / EUR) - DDP contributed money as a contribution to the organization's property.

Since on the date of payment of the deposit, the exchange rate increased, the accountant reflected the resulting exchange rate difference as follows:

Debit 75 Credit 83
- 675,000 rubles. (135,000 EUR × (65 rubles / EUR - 60 rubles / EUR)) - the positive exchange rate difference on the Lvov deposit is reflected;

Debit 75 Credit 83
- 450,000 rubles. (90,000 EUR × (65 rubles / EUR - 60 rubles / EUR)) reflects the positive exchange rate difference on the DDP deposit.

Further revaluation of the contribution to the property of the organization made in foreign currency is not provided, and therefore the accountant did not do it.

An example of how to reflect in accounting the non-monetary contribution of the founder to the property of the organization

The authorized capital of OOO "Trading Firm" Hermes "is 400,000 rubles. It is divided into shares between two participants - A.V. Lvov (60%) and Alpha LLC (40%).

The Hermes charter stipulates the obligation of the founders to contribute to the property of the organization. The general meeting of the participants decided to submit the materials. Lviv transfers 2 tons of bricks to the organization, and Alpha - 5 tons shaped pipe.

An independent appraiser was recruited to evaluate the participants' in-kind contributions. According to his conclusion, the market value of Lvov's deposit is 30,000 rubles, and the value of Alpha's deposit is 20,000 rubles. On March 14, this cost of deposits was approved by the general meeting of the organization's participants. On April 20, the founders transferred the materials to the company's warehouse.

Debit 75 Credit 83

Debit 75 Credit 83

Debit 10 Credit 75
- 30,000 rubles. - Lvov contributed 2 tons of bricks as a contribution to the property of the organization;

Debit 10 Credit 75
- 20,000 rubles. - Alfa contributed 5 tons of pipes as a contribution to the property of the organization.

Income tax

By general rule the cost of the contribution received must be taken into account in non-operating income (clause 8 of article 250 of the Tax Code of the Russian Federation). At the same time, there is a benefit for subsidiaries. They do not need to include in their income the value of the contribution to the property if:

• the transferring party (organization or citizen) owns more than 50 percent of the authorized capital of the receiving organization;

• the receiving organization on the day of transfer of property owns more than 50 percent of the authorized capital of the transferring party. Moreover, if the property is transferred by a dependent foreign company, then its location should not be an offshore zone or a country that provides a preferential tax regime.

In all these cases, the organization can take advantage of the privilege, but only on condition that within a year from the date of receipt of the property, it will not be transferred to third parties.

This procedure follows from paragraph 8 of article 250, subparagraph 11 of paragraph 1 of article 251 of the Tax Code of the Russian Federation.

This benefit does not apply if property rights are transferred as a contribution (clause 2 of the letter of the Ministry of Finance of Russia dated March 29, 2006 No. 03-03-04 / 1/304).

If money is received as a deposit, recognize the income as of the date of their receipt to the current account or to the cashier (subparagraph 2, paragraph 4 of article 271, paragraph 2 of article 273 of the Tax Code of the Russian Federation). If property was received as a contribution, then reflect the income on the day of signing the act of acceptance and transfer of values \u200b\u200b(subparagraph 1 of paragraph 4 of article 271, paragraph 2 of article 273 of the Tax Code of the Russian Federation). Estimate the value of the property in accordance with clause 8 of Article 250 of the Tax Code of the Russian Federation.

An example of how to take into account the financial contribution of the founder to the property of the company. General mode organization, accrual method (income tax is paid monthly)

The authorized capital of OOO "Trading Firm" Hermes "is 400,000 rubles. It is divided into shares between two participants: 60 percent belongs to A.V. Lvov, 40 percent - LLC "Alpha". The charter of "Hermes" states that the founders are obliged to make contributions to the property of the organization.

On March 14, the general meeting of founders decided to invest 50,000 rubles in the property of the organization within a month. On April 16, the founders deposited money in the current account in the following amounts:

• Lviv - 30,000 rubles. (RUB 50,000 × 60%);
• Alpha - 20,000 rubles. (RUB 50,000 × 40%).

The accountant of "Hermes" reflected these operations as follows.

Debit 75 Credit 83
- 30,000 rubles. - reflects the debt of Lviv on the contribution to the property of the organization;

Debit 75 Credit 83
- 20,000 rubles. - reflects the debt of "Alpha" on the contribution to the property of the organization.

Debit 51 Credit 75

Debit 51 Credit 75

In April, when calculating income tax, the accountant of the organization reflected in non-operating income 20,000 rubles received from Alpha. The money received from Lviv is not taken into account when calculating income tax. This founder owns over 50 percent of the authorized capital of the organization.

Advice

Situation: is it possible for the recipient organization to take into account the cost of the non-monetary contribution to the property of the LLC in the calculation of income tax?

The answer to this question depends on the type of property received as a contribution to the property of the organization.

If the organization received materials, goods, intangible assets or property rights, then when calculating income tax, their market value should not be taken into account in expenses. This is due to the fact that such values \u200b\u200bare recognized as received free of charge (clause 2 of article 248 of the Tax Code of the Russian Federation). In tax accounting, the value of the listed property is formed only by the actual expenses of the organization associated with their receipt (if any). For example, the cost of shipping materials. This procedure follows from paragraph 2 of article 254, paragraph 3 of article 257, subparagraph 2.1 of paragraph 1 of article 268, paragraph 2 of article 320 of the Tax Code of the Russian Federation.

If the organization received fixed assets, then the procedure for including them in expenses depends on the size original cost .

If the organization calculates income tax on an accrual basis, received as a contribution to property, fixed assets with an initial value of more than 100,000 rubles. need to be amortized (clause 1 of article 256 of the Tax Code of the Russian Federation, letter from the Ministry of Finance of Russia dated May 10, 2006 No. 03-03-04 / 1/426) This procedure also applies to the case when the property comes from the founder, whose share in the authorized capital of the organization exceeds 50 percent (letter of the Ministry of Finance of Russia dated May 15, 2008 No. 03-03-06 / 1/318). At the same time, the requirements of paragraph 1 of Article 252 of the Tax Code of the Russian Federation must be met:

• fixed assets are used in activities aimed at generating income;

• the receipt of fixed assets is confirmed by documents (acceptance certificates, receipt orders, etc.).

For fixed assets with an initial value not exceeding 100,000 rubles, do not charge depreciation (clause 1 of article 256 of the Tax Code of the Russian Federation). Moreover, the composition material costs only consider the costs associated with obtaining them (if any). For example, shipping costs. Do not include the market value of fixed assets in expenses.

This procedure follows from subparagraph 3 of paragraph 1 and paragraph 2 of Article 254 of the Tax Code of the Russian Federation.

When using the cash method, only paid amortized property is allowed to be depreciated (subparagraph 2, paragraph 3, article 273 of the Tax Code of the Russian Federation). Upon receipt of property as a contribution to the authorized capital, the organization does not bear the cost of its payment. Consequently, organizations using the cash basis cannot write off the value of the objects received as a deduction of taxable profit.

STS

Consider the contribution to property in the simplified form in the manner prescribed for income tax. This is explained by the fact that organizations on a simplified basis must take into account the income provided for by article 250 of the Tax Code of the Russian Federation (except for income listed in article 251 of the Tax Code of the Russian Federation) (subparagraph 1 of article 346.15 of the Tax Code of the Russian Federation).

Include the contribution to property in income as of the date of actual receipt of money or property (clause 2 of Art. 346.17 of the Tax Code of the Russian Federation).

This procedure applies both to organizations that pay a single tax on income, and to those that calculate tax on the difference between income and expenses (clause 1 of article 346.14 of the Tax Code of the Russian Federation).

Advice: there is a way not to take into account the cost of contribution to the property of the LLC in income.

To do this, issue a protocol general meeting members of the company (shareholders), according to which the property is 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: is it possible for the recipient organization to take into account the cost of the non-monetary contribution to the property of the LLC in the expenses? The organization applies a simplification and pays a single tax on the difference between income and expenses.

No you can not.

Organizations on a simplified system are allowed to take into account in expenses only the costs of purchasing (manufacturing) fixed assets, materials, goods (clause 1 of article 346.16 of the Tax Code of the Russian Federation). Upon receipt of the founder's contribution to the property, the company does not bear any costs. Therefore, it is impossible to include the value of the assets received in the calculation of the single tax.

An example of how to take into account on a simplified basis ("income minus expenses") the non-monetary contribution of the founder to the property of the company

LLC "Trading Firm" Hermes "" applies a simplified tax, a single tax is paid on the difference between income and expenses.

The authorized capital of the organization is 100,000 rubles. It is divided into shares between two participants: A.V. Lvov (80%) and Alpha LLC (20%). The Hermes charter states that founders must contribute to the organization's property.

The general meeting of participants decided to contribute materials. Lviv transfers 2 tons of bricks to the organization, "Alpha" - 5 tons of shaped pipes. An independent appraiser was recruited to evaluate the participants' in-kind contributions. According to his conclusion, the market value of Lvov's deposit is 30,000 rubles, and the market value of Alpha's deposit is 20,000 rubles. On March 14, the same cost of the contributions made was approved by the general meeting of participants.

Since more than 50 percent of the authorized capital belongs to Lviv, the cost of the materials received from it is not taken into account when calculating the single tax. The income of the organization increases only the cost of materials received from Alpha (by 20,000 rubles).

The accountant did not take into account the cost of the materials received in Hermes's expenses.

UTII

The object of taxation of UTII is imputed income (clause 1 of Art. 346.29 of the Tax Code of the Russian Federation). Therefore, the contributions made by the founders to the property of the organization do not affect the calculation of the tax base.

An example of how to take into account the financial contribution of the founder to the property of the company. The organization pays UTII

LLC "Trading Firm" Hermes "" pays UTII.

The authorized capital of "Hermes" is 400,000 rubles. It is divided into shares between two participants: 60 percent belongs to A.V. Lvov, 40 percent - LLC "Alpha". The Hermes charter states that members are required to contribute to the organization's property.

On March 14, the general meeting of participants decided to invest 50,000 rubles in the property of the organization. within a month. On April 16, the following deposits were received on the settlement account of Hermes:

• from Lviv in the amount of 30,000 rubles. (RUB 50,000 × 60%);
• from "Alpha" in the amount of 20,000 rubles. (RUB 50,000 × 40%).

The Hermes accountant made such entries in the accounting.

Debit 75 Credit 83
- 30,000 rubles. - reflects the debt of Lviv on the contribution to the property of the organization;

Debit 75 Credit 83
- 20,000 rubles. - reflects the debt of "Alpha" on the contribution to the property of the organization.

Debit 51 Credit 75
- 30,000 rubles. - received money from Lviv as a contribution to the property of the organization;

Debit 51 Credit 75
- 20,000 rubles. - received money from "Alpha" as a contribution to the property of the organization.

Operations related to the receipt of contributions to property do not affect the calculation of the single tax.

OSNO and UTII

An organization can use non-monetary assets (for example, fixed assets) received as a contribution to the property of the company, simultaneously in activities taxed by UTII, and in activities with which the organization pays taxes under the general taxation system.

For purposes common system the value of property in some cases needs to be included in non-operating income. The current tax legislation does not contain a mechanism for the distribution of non-operating income between different kinds activities. In private explanations, the Ministry of Finance of Russia in similar situations prescribes to include the entire amount of property received in income tax (letter of the Ministry of Finance of Russia dated March 15, 2005 No. 03-03-01-04 / 1/116).

When writing off to expenses, the cost of the property received must be distributed (clause 9 of article 274 of the Tax Code of the Russian Federation). Such a need arises on depreciable property ... Amounts of accrued depreciation on property that will be used in only one type of activity should not be allocated.

For more information on how to distribute the amount of accrued depreciation if the organization uses the property in both activities, see How to calculate depreciation of fixed assets in tax accounting (Special mode) .

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

Basic Provisions

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

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

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

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

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

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

Public and non-public JSC

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

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

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

In public joint stock company the number of shares owned by one shareholder, their total par value, as well as the maximum number of votes granted to one shareholder, as established by clause 5 of Art. 97 of the Civil Code of the Russian Federation.

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

Financing JSC by issuing shares

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

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

In accordance with Art. 22 of the Federal Law of 22.04.96, No. 39-FZ "On the Securities Market" (hereinafter - Law No. 39-FZ), state registration of the issue (additional issue) of equity securities placed by subscription must be accompanied by the registration of the securities prospectus. The securities prospectus must be drawn up in accordance with the Regulation on Disclosure of Information by Issuers of Equity Securities, approved by the Bank of Russia dated 30.12.14, No. 454-P.

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

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

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

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

In the decision of the FAS of the Moscow District of 28.01.13, in case No. A40-130686 / 09-103-634b, it was noted that, in addition to the general provision of paragraph 1 of Art. 34 of Law No. 208-FZ, the specified norm in paragraph 3, clause 3, as a separate case, establishes the procedure for regulating payment for shares in non-monetary funds. When paying for shares with non-monetary funds, an appraiser must be involved to determine the market value of such property, unless otherwise provided by federal law. The value of the monetary value of the property made by the founders of the company and the board of directors (supervisory board) of the company cannot be higher than the value of the estimate made by the appraiser.

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

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

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

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

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

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

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

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

Contribution of property without increasing the authorized capital

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Capital contribution

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

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

Tax implications

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

1. Contributions to the company's property should be considered as a gratuitous transfer of property and taken into account as part of other income in accordance with clause 8 of PBU 9/99 "Income of an organization", since they do not change the size and nominal value of the shares of the company's participants in the charter (reserve) capital, that is, they are not contributions to the authorized capital and are not subject to return. In this case, the amount of income is recognized as of the date of receipt of funds in accordance with paragraph 16 of PBU 9/99.

According to the Chart of Accounts, the free receipt of funds to the cashier or to the settlement account of the organization is reflected in debit, respectively, account 50 "Cashier" or 51 "Settlement accounts" and the credit of the account, subaccount "Gratuitous receipts". At the same time, the amount of funds received free of charge is reflected as part of other income by entries in the debit of the account and the credit of the account, subaccount "Other income".

So, the following entries are made in the company's accounting:

- the amount of the founder's debt is reflected as gratuitous receipts (based on the decision of the general meeting of the company's participants);

- received funds from the founder to the contribution of the society;

Debit, subaccount "Gratuitous receipts" Credit, subaccount "Other income"
- reflected other income in the amount received from the founders as contributions to the property of the LLC.

It should be noted that this method of accounting for participants' contributions to the company's property contradicts the requirements of RAS 9/99. According to clause 2 of PBU 9/99, the income of an organization is recognized as an increase in economic benefits as a result of the receipt of assets (cash, other property) and (or) the repayment of obligations, leading to an increase in the capital of this organization, with the exception of contributions from participants (property owners).

2. The Ministry of Finance of Russia recommends to reflect in the accounting the contribution to the property of the company under the credit of account 83 "Additional capital" (see, for example, the letters of the Ministry of Finance of Russia dated 29.01.2008 N 07-05-06 / 18, dated 13.04.2005 N 07-05 -06/107). That is, upon receipt of funds in the accounting records are made:

Debit, subaccount "Settlements on contributions to the property of the company" Credit
- the amount of the founder's debt on contributions to the company's property is reflected (based on the decision of the general meeting of the company's participants);

Debit () Credit, subaccount "Calculations on contributions to the property of the company"
- received funds from the founder to contribute to the society.

However, there is no direct guidance on the reflection of such transactions using an account in the Chart of Accounts. Moreover, the list of transactions that can be reflected in the additional capital is closed, and there are no transactions with contributions to the company's property.
Thus, we believe that the organization should independently choose and consolidate the method of reflecting the contributions of the founders in the order on accounting policy in accordance with PBU 1/2008.

Land plot

In accounting land may refer to fixed assets in accordance with paragraph 2 of clause 5 of PBU 6/01 "Accounting for fixed assets" if they meet the requirements established in clause 4 of PBU 6/01, namely:

a) use in the manufacture of products, in the performance of work or the provision of services, or for the management needs of the organization;

b) use for a long time, i.e. useful life over 12 months or normal operating cycleif it exceeds 12 months;

c) the organization does not expect the subsequent resale of these assets;

d) the ability to bring the organization economic benefits (income) in the future.

The historical cost of fixed assets received free of charge is recognized as their current at the date of acceptance to accounting as investments in (paragraphs 7, 10 PBU 6/01). According to paragraph 1 of Art. 66 of the Land Code, the market price of land is determined in accordance with the Federal Law of July 29, 1998 N 135-FZ "On appraisal activities in the Russian Federation".

In this case, as a result of the gratuitous receipt of an asset, the organization generates other income in the amount of the market value of this asset (clauses 7, 10.3 PBU 9/99 "Income of the organization").

Based on clause 11 PBU 9/99 and clause 29 Methodical instructions on accounting of fixed assets approved by order of the Ministry of Finance of Russia dated October 13, 2003 N 91n, the acceptance of fixed assets transferred free of charge for accounting is reflected in the debit of the account for accounting for investments in non-current assets in correspondence with the account for accounting for deferred income with subsequent reflection on the debit of the account accounting of fixed assets in correspondence with the credit of the account of accounting for investments in non-current assets.

It should be noted that in letters dated 17.02.2006 N 03-03-04 / 1/126, dated 05.04.2005 N 03-03-01-04 / 1/158, the Ministry of Finance of Russia explained: "Acceptance of land plots for accounting in objects of fixed assets is carried out on the basis of an act on the acceptance and transfer of an object of fixed assets and documents confirming them state registration in a single state register rights with the assignment of a cadastral number by the body carrying out activities for the maintenance of the State Land Cadastre ".

Based on the decision of the general meeting of members of the company, an entry is made in the accounting:

Debit, subaccount "Calculations on contributions to the property of the company" Credit, subaccount "Gratuitous receipts"
- the amount of the founder's debt on contributions to the company's property is reflected.

On the date of transfer of the land plot, the organization must make the following entries in the accounting records:

Debit, subaccount "Transferred land" Credit

 

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