Contribution to the authorized capital by the property of a subsidiary. Making a contribution to the property of JSC. 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, evaluate their share, and then, in the course of the company's activities, regularly receive dividends. Many entrepreneurs are concerned about the question of whether tax is paid on the authorized capital of an LLC?

Taxation of the share of an individual

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

Alienation of company shares is the sale of property.

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

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

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

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

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

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

Taxation of a share of a legal entity

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

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

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

In accounting, reflect the contribution of the founder to the property of the company 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 was received as a contribution from the founder, then in accounting it must be valued at the current market value. This requirement is imposed by accounting legislation on objects received free of charge (clause 10.3 PBU 9/99). To confirm the price, you can use the expert opinion of the appraiser.

Advice: to account for contributions to the organization's property, use account 75 "Settlements with the 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 kept in the context of settlements with each founder. This will allow you to control who has repaid their debt on deposits and who has not.

When using account 75, record transactions to receive a contribution to the organization's property 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 LLC "Torgovaya firm "Germes"" 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 - Alfa LLC.

The charter of "Hermes" states that the founders are required 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. (50,000 rubles × 40%).

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

Debit 75 Credit 83
- 20,000 rubles. - reflects the amount of Alfa's debt 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 property of the organization.

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

The charter of "Hermes" states that the founders are required 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 organization's property 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:

on the date of the decision to make a contribution to the property of the organization - 60 rubles / EUR;
on the deposit payment date - 65 rubles/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 a contribution to the organization's property;

Debit 75 Credit 83
- 5,400,000 rubles. (90,000 EUR × 60 RUB/EUR) - reflects the amount of DDP debt on a 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 property of the organization;

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

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

Debit 75 Credit 83
- 675,000 rubles. (135,000 EUR × (65 RUB/EUR - 60 RUB/EUR)) - reflects a positive exchange rate difference on Lvov's contribution;

Debit 75 Credit 83
- 450,000 rubles. (90,000 EUR × (65 RUB/EUR - 60 RUB/EUR)) reflects the foreign exchange gain 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 LLC "Torgovaya firm "Germes"" is 400,000 rubles. It is divided into shares between two participants - A.V. Lvov (60%) and Alfa LLC (40%).

The Charter of "Hermes" provides for the obligation of the founders to make contributions to the property of the organization. The general meeting of participants decided to submit materials. Lvov donates 2 tons of bricks to the organization, and Alfa - 5 tons profile pipe.

An independent appraiser was engaged to evaluate participants' non-cash contributions. According to his conclusion, the market value of Lvov's deposit is 30,000 rubles, and the value of Alfa'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 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 value of the contribution received must be taken into account in non-operating income (clause 8, 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 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 recipient organization;

on the day of the transfer of property, the receiving organization 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 preferential tax treatment.

In all these cases, the organization can use the benefit, but only on the 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 contribution, recognize the income on the date of their receipt to the current account or to the cash desk (subparagraph 2 of 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 valuables (subparagraph 1, paragraph 4, article 271, paragraph 2, article 273 of the Tax Code of the Russian Federation). Evaluate the value of the property in accordance with paragraph 8 of Article 250 of the Tax Code of the Russian Federation.

An example of how to take into account the founder's monetary contribution to the company's property. Organization on a general regime, accrual method (profit tax is paid monthly)

The authorized capital of LLC "Torgovaya firm "Germes"" is 400,000 rubles. It is divided into shares between two participants: 60 percent belongs to A.V. Lvov, 40 percent - Alfa LLC. The charter of "Hermes" states that the founders are required 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 into the current account in the following amounts:

Lviv - 30,000 rubles. (50,000 rubles × 60%);
"Alpha" - 20,000 rubles. (50,000 rubles × 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. - reflected the debt of "Alpha" on the contribution to the property of the organization.

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 Alfa. The money received from Lviv is not taken into account when calculating income tax. This founder owns more than 50 percent of the authorized capital of the organization.

Advice

Situation: is it possible for the recipient organization to take into account in expenses when calculating income tax the value of a non-monetary contribution to the property of an LLC?

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 valuables are recognized as received free of charge (clause 2, article 248 of the Tax Code of the Russian Federation). In tax accounting, the value of the transferred property is formed only by the actual expenses of the organization associated with their receipt (if any). For example, shipping costs. 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 an organization calculates income tax on an accrual basis, fixed assets received as a contribution to property with an initial value of more than 100,000 rubles. need to be depreciated (clause 1 of article 256 of the Tax Code of the Russian Federation, letter of 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). In this case, 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 (acts of acceptance and transfer, receipt orders, etc.).

For fixed assets with an initial cost not exceeding 100,000 rubles, do not charge depreciation (clause 1, article 256 of the Tax Code of the Russian Federation). At the same time, within material costs consider only 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, depreciation is allowed only for paid depreciable property (subclause 2, clause 3, article 273 of the Tax Code of the Russian Federation). When receiving property as a contribution to the authorized capital, the organization does not bear the costs of its payment. Consequently, organizations using the cash method cannot write off the cost of the received objects as a reduction in taxable profit.

USN

When simplifying, take into account the contribution to property in the manner prescribed for income tax. This is explained by the fact that simplified organizations must take into account the income provided for in Article 250 of the Tax Code of the Russian Federation (with the exception of income listed in Article 251 of the Tax Code of the Russian Federation) (Subclause 1 of Article 346.15 of the Tax Code of the Russian Federation).

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

This procedure applies both to organizations that pay single tax from income, and for those who 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 the contribution to the property of the LLC in income.

To do this, draw up a protocol general meeting members of the company (shareholders), for which the property is transferred to the organization to increase net assets (subclause 3.4, clause 1, 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 use such a benefit appeared on January 1, 2011 and applies to obligations that arose from January 1, 2007 (clauses 1 and 2 of article 4 of the Law of December 28, 2010 No. 409-FZ).

See more on this.How 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 a non-monetary contribution to the property of an LLC in expenses? The organization applies simplified taxation and pays a single tax on the difference between income and expenses.

No.

Simplified organizations are allowed to take into account in expenses only the costs of acquiring (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 expenses. Therefore, it is impossible to include the value of the received assets 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 system, pays a single tax 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 Alfa LLC (20%). The charter of "Hermes" states that the founders must make contributions to the property of the organization.

The general meeting of participants decided to contribute materials as a contribution. Lvov donates 2 tons of bricks to the organization, Alfa - 5 tons of a profile pipe. An independent appraiser was engaged to evaluate participants' non-cash contributions. According to his conclusion, the market value of Lvov's deposit is 30,000 rubles, and the market value of Alfa's deposit is 20,000 rubles. On March 14, the same cost of contributions was approved by the general meeting of participants.

Since more than 50 percent of the authorized capital belongs to Lviv, the cost of 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 the expenses of Hermes.

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 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 founder's monetary contribution to the company's property. The organization pays UTII

LLC “Trading firm “Germes”” 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 - Alfa LLC. The charter of "Hermes" states that the participants are required to make contributions to the property of the organization.

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 Hermes settlement account:

from Lviv in the amount of 30,000 rubles. (50,000 rubles × 60%);
from Alpha in the amount of 20,000 rubles. (50,000 rubles × 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. - reflected 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 deposits in 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 subject to UTII and in activities from which the organization pays taxes under the general taxation system.

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

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

For more information on how to allocate the amount of accrued depreciation if the organization uses 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 the company's funds, the so-called start-up capital formed during the creation of society. In the future, it can be increased: by increasing the 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.

Key points

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:

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

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

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

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

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

Public and non-public JSCs

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

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

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

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

The share of preferred shares in the total volume of the authorized capital of a joint-stock company must not exceed 25%. At the same time, 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, article 102 of the Civil Code of the Russian Federation).

JSC financing by issuing shares

In accordance with Chapter 2 of the Regulation on Securities Issue Standards, the procedure for state registration of an issue (additional issue) of issue-grade securities, state registration of reports on the results of an issue (additional issue) of issue-grade securities and registration of securities prospectuses, approved by the Bank of Russia on 11.08.14 No. 428-P (hereinafter - Regulation No. 428-P), the procedure for making a decision on the placement of securities, as well as its content must comply with the requirements of federal laws and Regulation No. 428-P.

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

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

So, when a joint-stock company is established, the first issue of shares is carried out, which are placed among the founders. The form of payment for shares when establishing a company is determined by the agreement on the creation of the company. Additional shares and other 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 of full payment of the shares.

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

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

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

In the decision of the Federal Antimonopoly Service of the Moscow District dated January 28, 2013, in case No. A40-130686 / 09-103-634b, it was noted that in addition to the general provision of paragraph 1 of Art. 34 of Law No. 208-FZ, the specified norm in paragraph 3, clause 3, as a separate case, establishes the procedure for regulating payment for shares in non-monetary funds. When paying for shares in non-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 valuation of property made by the founders of the company and the board of directors (supervisory board) of the company cannot be higher than the value of the valuation made by the appraiser.

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

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

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

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

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

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

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

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

Contribution of property without increasing the authorized capital

We have considered ways of financing joint-stock companies by means of initial or additional issue of shares. However, the assets of a joint-stock company can be replenished not only by issuing new shares, but also by investing property without increasing the authorized capital, which is sometimes more convenient. So, for example, the situation may develop in such a way that a decision can be made on contributions to property only by individual shareholders or not in equal shares. This right is granted by Art. 32.2 of Law No. 208-FZ, introduced by Federal Law No. 339-FZ of July 3, 2016. In addition, in non-public companies, shareholders may be required to make contributions to the property of a non-public company, which is not provided for in the case of an additional issue of shares.

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

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

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

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

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

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

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

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

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

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

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

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

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

The change of the owner of the property by concluding a 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). If the property is transferred to single group companies, the emergence of tax liabilities is highly undesirable: in fact, the property remains in the ownership of the same beneficiary, and taxes must be paid. Tax-free transfer (change of ownership) of property in a group may be required:

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

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

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

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

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

Capital contribution

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

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

Tax implications

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

1. Contributions to the property of the company should be considered as a gratuitous transfer of property and accounted for as other income in accordance with paragraph 8 of PBU 9/99 "Income of the organization", since they do not change the size and nominal value of the shares of the company's participants in the authorized (stock) 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 on the date of receipt of funds in accordance with clause 16 of PBU 9/99.

According to the Chart of Accounts, gratuitous receipt of funds to the cash desk or to the settlement account of the organization is reflected in the debit, respectively, of account 50 "Cashier" or 51 "Settlement accounts" and the credit of the account, sub-account "Grant-free receipts". At the same time, the amount of funds received free of charge is reflected in other income as entries on the debit of the account and on the credit of the account, sub-account "Other income".

So, in the accounting of the company, the following entries are made:

- 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);

- funds were received from the founder to the contribution of the company;

Debit, sub-account "Grant-free receipts" Credit, sub-account "Other income"
- other income is reflected 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 is contrary to the requirements of PBU 9/99. According to paragraph 2 of PBU 9/99, an organization’s income 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 reflecting in accounting the contribution to the property of the company on the credit of account 83 "Additional capital" (see, for example, letters of the Ministry of Finance of Russia dated 01/29/2008 N 07-05-06 / 18, dated 04/13/2005 N 07-05 -06/107). That is, upon receipt of funds in accounting records are made:

Debit, sub-account "Calculations on contributions to the property of the company" Credit
- reflects the amount of the debt of the founder on contributions to the property of the company (based on the decision of the general meeting of participants in the company);

Debit () Credit, sub-account "Calculations on contributions to the property of the company"
- funds were received from the founder to the contribution of the company.

However, there is no direct instruction to reflect such transactions using the 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 property of the company.
Thus, we believe that the organization should independently choose and fix 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, 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. term beneficial use lasting more than 12 months or the usual operating cycle if it exceeds 12 months;

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

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

The initial cost of fixed assets received free of charge is their current value as of the date of acceptance to accounting as investments in (clauses 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 valuation activities in the Russian Federation."

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

Based on paragraph 11 PBU 9/99 and paragraph 29 Guidelines on accounting of fixed assets approved by order of the Ministry of Finance of Russia dated 13.10.2003 N 91n, acceptance for accounting of fixed assets transferred free of charge 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, followed by reflection in the debit of the account accounting for fixed assets in correspondence with the credit of the account for 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 the objects of fixed assets is carried out on the basis of a certificate of acceptance and transfer of an object of fixed assets approved in accordance with the established procedure and documents confirming them state registration in one state register rights with the assignment of a cadastral number by the body engaged in the maintenance of the State Land Cadastre.

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

Debit, sub-account "Calculations on contributions to the company's property" Credit, sub-account "Grant-free receipts"
- reflects the amount of debt of the founder on contributions to the property of the company.

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

Debit, subaccount "Transferred land" Credit

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