Is a bank deposit a property? Ownership of funds

V economic activity enterprises there are many moments that lead to the formation of debt. However, it is not always negative. For example, in cases where organizations owe (accounts receivable) there is nothing wrong if it is not bad.

It is much more unpleasant when the company itself owes. But there are nuances here too: for example, debts to the budget are assessed as accounts payable, but they are not in the direct, common sense, debts until the time for their payment has come.

Consider the components of this debt and the procedure for its accounting.

The concept of accounts payable in the budget and its reflection in accounting

Accounts payable are obligations (debts) of a legal entity to other business entities, credit institutions, the budget and extra-budgetary funds.

It is reflected in the liabilities of the balance sheet in line 1520 and includes the following calculations:

1. With buyers;
2. With suppliers;
3. With a budget;
4. With off-budget funds (according to various types social insurance);
5. With employees wages;
6. With founders and participants (for the payment of dividends, interest and other income);
7. With accountable persons;
8. With creditors and debtors for other debts (for example, for advances received under agreements).

Accounts payable to the budget includes liabilities for taxes and fees. At the same time, it can be both current and current, the payment deadline for which has not yet come. How to write off accounts payable.

To reflect the situation with the payment of taxes and fees, an active-passive account No. 68 is used. According to his loan, the amount of taxes and fees accrued and indicated in the declarations (“debts” to the budget) is taken into account. For example, posting Debit 99 Credit 68 (hereinafter referred to as D and K, respectively) means that income tax has been charged. A D 70 K 68 - personal income tax (personal income tax).

The debit of the account reflects the paid taxes and fees (debt repayment). In particular, posting D 68 K 51 means the payment of any tax on current account enterprises.

• credit balance at the end reporting period means that the legal entity has debts for taxes and fees.
• Debit- indicates budget debts to the enterprise (company) or - overpayment on tax payments.

How to pay off debt - correspondence of accounts and postings

For more detailed accounting, this account is divided into sub-accounts for specific taxes. It also takes into account penalties and fines for non-payment.

At the same time, there is no difference in whether the organization pays taxes for itself or acts as a tax agent (for example, transfers personal income tax for its employees). Any tax payable is reflected in this account.

This account is in debit with the following accounts:

• 19 - VAT on purchased valuable goods;
• 50 - cash desk;
• 55 - special bank account;
• 66 (67) - settlements on loans and credits (short-term and long-term).

In terms of credit, the account corresponds with the following items:

• 08 - investments in non-current assets (funds);
• 10 - materials;
• 11 - animals that are fattening and rearing;
• 15 - purchase (preparation) of material assets;
• 20 (23) - main (auxiliary) production;
• 26 - expenses for general business needs;
• 29 - service industries;
• 41 - goods;
• 44 - sales expenses;
• 51 (52) - settlement (currency) account;
• 55 - special bank account;
• 70 (75) - settlements with employees on wages (with the founders on the income paid to them);
• 90 - sales;
• 91 - other income and expenses;
• 98 - future income;
• 99 - profit and loss.

Payment of taxes and fees is reflected in the active-passive account No. 68.

Accounting for individual taxes and fees

Let us consider (without specifying the details and all possible cases) the main entries used in accounting for transactions related to the calculation of taxes and their payment to the budget.

federal taxes

• income tax. It is paid from profit, accrued on its amount and the amount of other income, therefore accounts 99, 91 are used.

• personal income tax. It is paid from the income of employees, therefore it corresponds with a score of 70.

Other taxes and fees

• Property tax. It is paid from pre-tax profit. Therefore, it is taken into account “in conjunction” with a score of 91.

• State duty. It is transferred to the budget for various transactions, for example, for registering ownership of fixed assets, considering a case in an arbitration court, and notarial acts. This "creditor" is also accounted for on account 68, in "bundle" with accounts 91 (fee in court, for notarization) and 08 (for the purchase non-current assets in the form of a certificate of ownership).

• Sanctions for incomplete or untimely transfer taxes.

Thus, the main points on such a phenomenon as accounts payable on taxes and fees are considered.

In conclusion, it should be noted that when recognizing, claiming or paying any debt, whether payable or receivable, to legal entities or individuals, it is very important to carefully record and correct design documentation. And this is the business of lawyers and financiers.

Successful cooperation!

Accounts payable refers to the obligations of the organization.

Like an object accounting accounts payable is a monetary value of the amount of debt of the organization (debtor) to other persons (creditors).

Accounts payable are recorded on active-passive settlement accounts: 60, 62 (advance payments received), 68, 69, 70, 71, 73, 75, 76. Debentures are reflected in passive accounts for accounting for settlements on loans and credits 66, 67.

Installed following rules reflections in financial statements accounts payable:

1. Offsetting between items of assets and liabilities is not allowed (clause 34 PBU 4/99). For example, as of the reporting date, the rolled-up balance on account 68 "Calculations for taxes and fees" is 1,500 thousand rubles, including the debit balance on sub-account 68 - "Settlements with the budget for VAT" - 2,000 thousand rubles. and credit balance for other taxes - 3,500 thousand rubles. In the balance sheet at the reporting date, the balance of account 68 should be presented in detail: as part of receivables (line 1230) - 2,000 thousand rubles, as part of accounts payable (line 1520) - 3,500 thousand rubles.

2. In the balance sheet, accounts payable are presented as short-term (balance sheet section V) if their maturity is not more than 12 months after the reporting date or the duration of the operating cycle, if it exceeds 12 months. In other cases, accounts payable are presented as long-term and, accordingly, are reflected in section IV of the balance sheet (clause 19 PBU 4/99).

For example, in 2013, the organization received a loan for the construction of a workshop in the amount of 100 million rubles. for a period of 5 years. However, under the terms loan agreement the organization must pay interest on the loan monthly. Accordingly, in the balance sheet as of December 31, 2013, the amount of the principal debt on the loan is reflected in long-term liabilities in line 1410, and the amount of interest accrued and outstanding as of the reporting date is included in short-term liabilities in line 1510.

3. Accounts payable denominated in foreign currency(including payable in rubles), for reflection in the financial statements is recalculated in rubles at the rate in force on the reporting date (clauses 1, 5, 7, 8 PBU 3/2006). The exception is accounts payable arising in connection with the receipt of an advance payment, advance payment or deposit. In addition, balances are not recalculated. target financing received in foreign currency. Such accounts payable (liabilities) are reflected in the financial statements at the exchange rate as of the date of receipt of funds (acceptance of them for accounting) (clauses 7, 9, 10 PBU 3/2006).

4. Upon receipt by the organization of payment (partial payment) on account of the forthcoming deliveries of goods (performance of work, provision of services, transfer property rights) accounts payable are reflected in the balance sheet in the assessment minus the amount of VAT payable (paid) to the budget in accordance with tax legislation(See the Appendix to the letter of the Ministry of Finance of the Russian Federation No. 07-02-18/01 dated January 9, 2013).

For example, an organization received an advance from a buyer in the amount of 118,000 rubles. (Debit 51 Credit 62) and calculated the amount of VAT payable from the advance received (Debit 76, sub-account "VAT from advances received" Credit 68, sub-account "Calculations with the budget for VAT"). As of the reporting date, the shipment against the advance payment received was not made. In the balance sheet, the organization's payables to the buyer are reflected in line 1520 in the amount of 100 thousand rubles. (118,000 - 18,000).

5. In the balance sheet, data on accounts payable for purchased goods (works, services) are reflected, if they are material, separately from the amounts received by the organization in accordance with advance payments (prepayment) agreements (see letter of the Ministry of Finance of the Russian Federation dated January 27, 2012 No. 07-02 -18/01).

6. For loans and credits received, the debt is shown taking into account the interest payable at the end of the reporting period (clause 73 of RVBU No. 34n).

7. The amounts reflected in the financial statements for settlements with the budget must be reconciled with tax authority and identical. Leaving unsettled amounts on the balance sheet for these calculations is not allowed (clause 74 of PVBU No. 34n).

8. Fines, penalties and forfeits recognized by the organization or for which court decisions have been received on their collection, are included in other expenses and, before they are paid, are reflected in the balance sheet as accounts payable (clause 76 PVBU 34n).

9. Amounts of accounts payable and depositor's debts for which the term limitation period has expired, are written off as other expenses for each obligation on the basis of (clause 78 PVBU 34n):

Inventory data;

Written justification;

- (and) an order (instruction) of the head of the organization.

ü in the form of advance payment;

ü deferred payment.

In the first case, the organization that sells the goods acts as a borrower, and its debt in the structure of the balance sheet is accounts payable.

In the second case, the same organization acts as a creditor and accounts receivable are reflected in the balance sheet.

Loans and credits in accounting and reporting are classified as long-term and, and are separated from accounts payable. Indebtedness to creditors includes amounts on unpaid invoices of suppliers and contractors, promissory notes presented for payment, debt to subsidiaries and dependent companies, to the staff of the organization, received advances, debt to the budget and extra-budgetary funds, to the participants (founders) for the payment of income.

Accounts receivable is reflected in the financial statements as part of the organization's assets, since it represents a part of the organization's property that belongs to it by right, but is located with other business entities. Over time, this debt must be paid to the organization in cash or by the supply of goods (provision of services, performance of work).

The procedure for compiling and submitting financial statements is regulated by federal law dated July 6, 1999 No. 129-FZ “On Approval of the Accounting Regulations “Accounting Statements of an Organization” (PBU 4/99)”.

At present, the Instructions on the scope of accounting reporting forms and on the procedure for compiling financial statements are approved by the Order of the Ministry of Finance Russian Federation dated July 22, 2003 No. 67n "On the forms of financial statements of the organization."

· Balance sheet (form No. 1);

· Profit and loss statement (Form No. 2);

· Statement of changes in equity (Form No. 3);

· Cash flow statement (Form No. 4);

· Appendix to the balance sheet (Form No. 5).

In addition, reporting includes Explanatory note and audit report confirming the accuracy of the financial statements of the organization.

The existing reporting forms of organizations reflect:

Information on receivables and payables - in the balance sheet (form No. 1);

Information on the movement of receivables and payables (that is, the balance at the beginning and end of the year) - in the section "Accounts receivable and" Appendix to balance sheet(form No. 5).

When compiling financial statements, it is necessary to group accounts receivable according to the terms of formation. At short-term debt payments are expected within 12 months after the reporting date. For long-term - more than 12 months after the reporting date.

Accounts receivable, payments on which are expected more than 12 months after the reporting date (line 230), and receivables, payments on which are expected within 12 months after the reporting date (line 240), are reflected in section II " current assets» asset balance. The balance sheet separately indicates the receivables of buyers and customers for shipped goods and work performed on line 231 and 241 "including buyers and customers." The specified debt is reflected in the debit of account 62 "Settlements with buyers and customers". Accounts receivable are shown in the balance sheet net of an allowance for doubtful debts. When filling in lines 230 and 240, it must be remembered that the balance of settlements with suppliers, buyers and other persons is shown in the balance sheet expanded: the debit balance is shown in the asset balance, the credit balance - in liabilities.

Within five years from the date of write-off, the amount of the written-off debt is accounted for in the balance on account 007 “Debt written off at a loss of insolvent debtors”, intended in accordance with the Order of the Ministry of Finance of the Russian Federation dated October 31, 2000 No. 94n “On approval of the chart of accounts for financial and economic activities of organizations and instructions for its use” to summarize information on the state of receivables written off due to the insolvency of debtors. This is established by paragraph 77 of the Accounting Regulations.

The debt of insolvent debtors written off as a loss is reflected in line 940.

69-1 "Calculations for social insurance" - for accounting for calculations on a single social tax transferred to the Social Insurance Fund and contributions to the mandatory social insurance from accidents at work and occupational diseases;

· 69-2 "Calculations for pension provision» - to account for settlements on compulsory pension insurance;

69-3 "Settlements for compulsory health insurance" - to account for settlements on the UST transferred to the Federal and territorial compulsory health insurance funds health insurance.

Both the UST and the contribution for insurance against industrial accidents and occupational diseases are credited to the Social Insurance Fund.

Therefore, sub-account 69-1 should be divided into two sub-accounts of the second order:

ü 69-1-1 "Settlements with the Social Insurance Fund for the unified social tax";

ü 69-1-2 "Settlements with the Social Insurance Fund for contributions to social insurance against accidents at work and occupational diseases."

To account for settlements on compulsory pension insurance, subaccount 69-2, it is also necessary to divide into subaccounts of the second order:

ü 69-2-1 "Calculations for the insurance part of the labor pension";

ü 69-2-2 "Calculations on the funded part of the labor pension."

To account for settlements with compulsory medical insurance funds, subaccount 69-3 is allocated to two subaccounts of the second order:

ü 69-3-1 “Settlements with Federal Fund compulsory medical insurance”;

ü 69-3-2 “Settlements with the Territorial Compulsory Medical Insurance Fund”.

If the organization has an overpayment on contributions to off-budget funds, the debit balance on the relevant sub-accounts is reflected in the asset balance - in line 240 "Accounts receivable (payments for which are expected within 12 months after the reporting date)" and (or) in the additional line of section II of the balance sheet "Current assets".

ü on line 624 - the amount of debt on taxes, fees and payments to the budget, reflected on the credit of account 68 "Calculations on taxes and fees". This line reflects the amount of taxes and fees accrued but not paid as of the date of preparation of the financial statements (except for contributions to off-budget funds). It should be noted that this line also reflects the amount of UST, but excluding the amount of contributions to the mandatory pension insurance, that is, minus the tax deduction.

The credit accounts reflect the debts for all types of payments to the budget:

on corporate income tax;

UST (in terms of amounts accrued in federal budget);

· on transport tax;

property tax;

for personal income tax;

fines and penalties for unpaid taxes and so on.

The credit of the account also reflects the restructured tax debt.

Note!

The amounts of accrued fines and penalties for contributions to compulsory social insurance against industrial accidents are reflected in line 623, and the amounts of accrued fines and penalties for taxes (fees) should be reflected in line 624.

In addition, if the organization has an overpayment of contributions, taxes, the debit balance on the relevant sub-accounts is reflected in section II "Current assets" of the balance sheet asset in line 230, 240.

ü on line 625 - the amount of short-term debt for settlements that were not reflected in the above lines of the liability section of the balance sheet, that is, other accounts payable of the organization. In particular, this line reflects: debt to insurance organizations for insurance of property and employees of the organization; debt to accountable persons; debt to staff for other operations.

(with the exception of amounts reflected in other lines of the balance sheet).

Note!

Line 625 of the balance sheet reflects the amount of advances received, excluding VAT, that is, the balance on the credit of the account of the sub-account “Settlements on advances received”, formed after the accrual of VAT payable to the budget.

On line 630 “Debt to participants (founders) for the payment of income”, a credit balance is reflected on account 75 “Settlements with founders”: the organization’s debt to the founders, reflected in the accounting on the account, subaccount 2 “Calculations for the payment of income”, for accrued, but no dividends paid.

Note!

Line 630 is intended only to reflect the debt to the founders on income from participation in the authorized capital and only on those income for which decisions were made to pay at the general meeting of shareholders (participants).

Russian organizations in without fail must fill out form No. 5 "Appendix to the balance sheet", which reflects information on debt. Form No. 5 contains the section "Accounts receivable and accounts payable", within which the following information on accounts receivable and payable for the reporting period is subject to disclosure:

Balance of receivables and payables with a breakdown by type and date of occurrence;

Data on the movement of types of debt.

The debt in the specified section is also shown by the types of settlements for which the indicated amounts of debt are recorded.

For more information on issues related to financial statements, you can find in the books "Accounting and Reporting", "Annual Report" by the authors of CJSC "BKR - INTERCOM - AUDIT"

Almost every subject entrepreneurial activity is both a debtor and a creditor. That is why the organization should keep records of both receivables and payables. When identifying receivables or payables, it is necessary to take all possible actions aimed at timely collection or repayment of debt amounts.

For more information on the procedure and methods for writing off receivables and payables, you can find in the book of the authors of CJSC "BKR-Intercom-Audit" " Write-off of receivables and payables».

In 2014, the organization opened credit line for 100,000 thousand rubles. During the year, according to applications, credit funds were received and returned several times within the established limit. As a result, the debit turnover of 51 accounts in correspondence with account 66 amounted to 250,000 thousand rubles, the turnover of credit accounts 51 in correspondence with account 66 amounted to 220,000 thousand rubles. Question: How to reflect these transactions in the cash flow statement in a collapsed or expanded form?

The rationale for this position is given below in the materials of the Glavbukh System

Elena Popova,

state councilor tax service RF I rank

2. Directories:Procedure for completing the Cash Flow Statement

Security and investment function are not basic for the authorized capital, in modern conditions The management company is more of a corporate control tool. Operations with it can lead to a change in the structure of corporate ownership.

Authorized capital as an instrument

The authorized capital of a company is the minimum amount of property that guarantees the interests of creditors (paragraph 2, paragraph 1, article 90, paragraph 2, paragraph 1, article 99 of the Civil Code of the Russian Federation). The source of its formation is the funds of the participants: for an LLC, this is the value of the shares acquired by the participants, and for a JSC, the nominal value of the shares acquired by the shareholders. Having endowed the management company with security features, the Civil Code of the Russian Federation also establishes a requirement for its minimum amount (for LLC, ALC and CJSC - 10,000 rubles, for OJSC - 100,000 rubles), which allows participants (shareholders) to limit their liability to the value of the acquired shares (shares ).

The requirement for the minimum amount of the authorized capital is determined by the legislator at a relatively low level, which cannot sufficiently guarantee the interests of creditors. No one, however, prevents the company from increasing its charter capital, thereby demonstrating the degree of its solvency for creditors.

To ensure the interests of creditors, the legislator has provided for one more requirement in relation to the Criminal Code: the amount net assets following the results of the second and each subsequent fiscal year cannot be less than the amount of the declared authorized capital. If this indicator turns out to be less than the UK in these cases, the company is obliged to reduce the amount of the latter to the value of net assets. If after that the authorized capital is less minimum size the company is subject to liquidation.

The use of such a method of financing as the contribution of property to the authorized capital bears a number of inconveniences. The main one is that the contributed property becomes the property of the company and the founder loses all rights to it. From this property, the claims of the company's creditors are satisfied, and the founder can only count on receiving the liquidation value, which is formed after the repayment of creditors' claims in the event of the termination of the business company.

Payment of shares and shares in the UK

Let's consider the procedure for paying shares in the authorized capital of an LLC and paying for shares in a JSC when creating a company and the legal consequences of such operations.

It should be noted that with the entry into force of the Federal Law of December 30, 2008 No. 312-FZ, which underwent a radical revision legal regulation LLC, the procedure for making a contribution to the charter capital of an LLC has been replaced by the payment of shares in the LLC's management company, which leads to legal regulation business companies different shapes to a more uniform look.

Each founder of an LLC must pay in full his share within the period determined by the agreement (decision) on the establishment of the company and cannot exceed one year from the date of state registration of the company at a price not lower than its nominal value. A similar rule is provided for the payment of shares by Article 34 of the JSC Law: the founders are obliged to pay for the shares within a year after the establishment of the JSC, unless a shorter period is established by the agreement on the creation of the company. At the time of state registration of an LLC, its authorized capital must be paid at least half. At least 50% of the shares of a joint-stock company distributed during its establishment must be paid for within three months from the date of state registration of the company. A share owned by the founder of the company does not provide voting rights until the moment of its full payment, unless otherwise provided by the charter of the joint-stock company. A similar provision is now present in the LLC Law: the share of the founder of the company, unless otherwise provided by the charter of the company, provides the right to vote only within the paid part of his share.

If in set time the share or shares are not paid in full, the unpaid part of the share and the ownership of the shares, the placement price of which corresponds to the unpaid amount (the value of the property not transferred as payment for the shares), are transferred to the company.

The legislation provides for the possibility of selling shares and shares above their nominal value. As a result, the so-called share premium on shares, or the difference between the cost of paying for a share in the authorized capital of an LLC and the nominal value of such a share, is formed. The specified difference and share premium do not increase the authorized capital of the companies and are not taken into account as income when determining the income tax base. This method of financing has an advantage over the usual contribution to the authorized capital, as it makes it possible to maintain a low size of the authorized capital, which entails a reduction in the risks that are possible if the amount of the authorized capital at the end of the second and each subsequent financial year exceeds the amount of the company's net assets.

Payment for shares and shares can be made in money, securities, other things, property or other rights that have a monetary value (clause 1, article 15 of the Law on LLC, clause 2 of article 34 of the Law on JSC). If funds are deposited, they are credited to a savings account, which is created specifically for these purposes. Other property is subject to monetary valuation, on the basis of which the amount of the participant's contribution is determined. It should be noted that in accordance with the letter of the Federal Service for Financial Markets dated March 22, 2007 No. 07-OV-03/5724, payment by non-residents of shares of Russian joint-stock companies, including when they are placed, can be made in foreign currency. For residents, such payment is not allowed.

Monetary valuation of property contributed as payment for shares in non-monetary form is made on the basis of a decision general meeting members, which must be adopted unanimously. For joint-stock companies, monetary valuation is made by agreement between the founders. When paying for shares in non-cash funds to determine market value of such property, an independent appraiser must be involved, unless otherwise provided by federal law. The value of the monetary valuation of property made by the founders of the company and its board of directors (supervisory board) cannot be higher than the valuation of an independent appraiser. For an LLC, the involvement of an appraiser is mandatory only if the nominal value of the participant's share in the charter capital, paid in non-monetary funds, exceeds 20,000 rubles.

Real estate - in payment for shares of JSC and shares of LLC

The special procedure provided for by the legislation for the transfer of real estate gives rise to a number of issues, including those related to the moment when the right of ownership to real estate created legal entity.

Recall that Art. 213 of the Civil Code of the Russian Federation states that commercial and non-profit organizations, except for state and municipal enterprises, as well as institutions, are the owners of property transferred to them as contributions (contributions) by their founders (participants, members), as well as acquired by them on other grounds. Guided by this provision, the Plenum of the Supreme Arbitration Court of the Russian Federation in its resolution of February 25, 1998 No. 8 indicated that from the moment the property is entered into the authorized (reserve) capital and state registration of legal entities, their founders (participants) lose their ownership of it, which passes to the company .

However, in cases where the alienation of property is subject to state registration, the acquirer's ownership right arises from the moment of such registration, unless otherwise provided by law (Article 223 of the Civil Code of the Russian Federation). Considering that state registration is the only evidence of the existence of a registered right (clause 1, article 2 of the Federal Law of July 21, 1997 No. 122-FZ), a fair question arises: from what moment the ownership of real estate is considered transferred to the company? Legal permission this legislative conflict does not exist. And the presence of the rule that by the time the LLC is established, 50% of its authorized capital must be paid (clause 2, article 16 of the Law on LLC), makes it legally impossible to pay for the specified share of the Criminal Code with real estate.

A problematic situation also arises in the process of paying for shares in the authorized capital of an LLC with property, the transfer of rights to which is also subject to registration (see Example 1).

Example 1

Collapse Show

The right to a registered paperless security passes to the acquirer: if the rights to securities for a person carrying out depository activities - from the moment of making a credit entry on the acquirer's depo account; in the case of accounting for rights to securities in the registry system - from the date of making a credit entry to personal account the acquirer (Article 29 of the Federal Law of April 22, 1996 No. 39-FZ).

In addition, paragraph 2 of Art. 1232 of the Civil Code of the Russian Federation establishes the requirement for state registration of the alienation of exclusive rights to the results of intellectual activity or to a means of individualization, the pledge of this right and the granting of the right to use such a result or such means under an agreement, as well as the transfer of the exclusive right to such a result or such means without an agreement, and paragraph 6 of Art. 1232 of the Civil Code of the Russian Federation establishes that non-compliance with this requirement entails the invalidity of the relevant agreement. In case of non-compliance with the requirement for state registration of the transfer of an exclusive right without an agreement, such a transfer is considered to have failed.

In accordance with the letter of the Federal Tax Service dated 13.12.2005 No. ШТ-6-07/1045, the documents confirming the payment of the MC with non-cash funds are copies of the document confirming the shareholder’s (participant’s) ownership of the property, with the application of a report on the assessment of objects and an act of acceptance - transfer of property.

Restrictions on non-monetary deposits

As a non-monetary contribution to the authorized capital, it is impossible to make property that cannot be owned by the right of ownership legal entities. Here we should mention the property withdrawn from circulation and limited in circulation, as well as that which can only be owned by public legal entities (for example, objects of the exclusive property of the Russian Federation).

There are also restrictions on the amount of non-monetary contributions to the management company, established for subjects of certain types of activities. Thus, the instructions of the Central Bank of the Russian Federation dated January 14, 2004 No. 109-I indicate that no more than 20% of the Criminal Code of the established credit institution may be paid in cash. This provision also applies to cases of payment for shares and shares at a price higher than their nominal value - property in non-monetary form, the value of which does not exceed 20% of the placement price of shares (the price of payment for shares), can be sent for their payment. Instruction No. 109-I also establishes a list of types of non-monetary property that may be contributed to the charter capital of a credit institution.

Restrictions on the types of non-monetary property that can be contributed to the charter capital of a JSC may also be provided for by the charter of a JSC (Clause 2, Article 34 of the JSC Law).

Property, results of intellectual activity and other objects of intellectual property contributed to the authorized capital are depreciated, and the income tax base is reduced due to depreciation deductions (Article 256 of the Tax Code of the Russian Federation).

Taxpayers have previously resorted to abuse: fully depreciated property was taxed at its market value, on the basis of which depreciation charges were charged without the actual costs of depreciation, which had already been fully completed. However, introduced by the Federal Law of 06.06.2005 No. 58-FZ para. 3 sub. 2 p. 1 art. 277 of the Tax Code of the Russian Federation established that property (property rights) received in the form of a contribution to the authorized capital, for the purposes of taxation of profits, is accepted at residual value. And it is determined according to the data tax accounting transferring party on the date of transfer of ownership of the said property (property rights), taking into account additional costs the transferring party associated with such a contribution, if they are defined as a contribution to the authorized capital. If the receiving party cannot document the value of the contributed property (property rights) or any part thereof, then it is recognized as equal to zero in the appropriate proportion.

Legal consequences of adding property to the Criminal Code

The introduction of property into the Criminal Code entails the termination of the founder's ownership of it and the emergence of a corresponding right for the company. The founders, losing property rights to the contributed property, thereby acquire the rights of obligations in relation to the company. And certain types these rights are proprietary. Thus, the participants have the right to participate in the distribution of the company's profits and to the property remaining after the liquidation (after the repayment of creditors' claims) - the liquidation value. The shareholder may sell his shares received as a result of the contribution of property to the authorized capital of the JSC, and the participant of the LLC, upon withdrawal from the membership, must be paid the actual value of his share. Thus, the contribution of property to the authorized capital of a company cannot be qualified as a gratuitous transfer of funds.

Apart from property nature the emerging legal relationship is characterized by organizational interaction between participants and society. Shareholders and participants participate in the management of the company's affairs. All major decisions in the company are made by the general meeting of participants or shareholders. Such issues include changes in the structure of the authorized capital, the formation of executive bodies, the appointment of a number of officials, approval big deals and other questions.

Incomes in the form of property, property or non-property rights having a monetary value, which are received in the form of contributions (contributions) to the authorized (share) capital (fund) of an organization (including income in the form of an excess of the placement price of shares (stakes) over their nominal value (initial size)), are not taken into account when determining the base for income tax (subclause 3, clause 1, article 251 of the Tax Code of the Russian Federation).

Also, the transfer of property, if it is of an investment nature (including making a contribution to the company's Criminal Code), is not recognized as a sale and, accordingly, is not subject to VAT (subclause 4, clause 3, article 39 of the Tax Code of the Russian Federation). However, it is necessary to take into account paragraph 3 of Art. 170 of the Tax Code of the Russian Federation: tax amounts accepted for deduction by the taxpayer on goods (works, services), including fixed assets and intangible assets, property rights, are subject to recovery in the event of the transfer of property, intangible assets and property rights as a contribution to the authorized (share) capital of companies and partnerships or share contributions to mutual funds cooperatives. The above norm is relevant only if the taxpayer deducted the indicated amounts of VAT (for example, he could use the simplified tax system and not pay VAT at all). In accordance with paragraph 11 of Art. 171 of the Tax Code of the Russian Federation, the receiving party can then deduct the amounts of tax that were restored by the participant or shareholder in accordance with paragraph 3 of Art. 170 of the Tax Code of the Russian Federation.

VAT evasion schemes

Taxpayers often use equity contributions as a way to avoid paying VAT. The contribution of funds to the Criminal Code is not targeted and serves as a source of formation of the property base of the receiving party. The transferring party receives in exchange for shares in the receiving party and sells them, thereby receiving equivalent compensation for the property contributed to the authorized capital and without paying VAT.

Litigation practice

This scheme has been considered arbitration court, the conclusions of which are contained in the resolution of the FAS SKO dated November 20, 2006 No. F08-5894 / 2006-2447A in case No. A63-4910 / 2006-C4. The court concluded that the transfer of funds to the authorized capital was not of an investment nature and therefore cannot be exempted from VAT.

A common scheme is aimed at obtaining a VAT refund from the budget by a person who did not actually pay for the goods. In this case cash are transferred from the parent organization to the subsidiary, and the latter almost immediately pays for goods purchased from the parent company with these funds. The scheme can use another intermediate link through which funds are transferred. At the same time, the party paying for the goods is not directly related to the organization - the supplier of the goods. As a result, the goods are transferred to the party that did not pay any payment for them and received the right to deduct VAT, and the initial funds paid are returned to the parent organization. Often, the actual goods do not even leave the warehouse of the parent company.

Litigation practice

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In this regard, noteworthy is the resolution dated 05.04.2006 No. F08-1281 / 2006-548A in case No. A53-22210 / 2005-C6-44, in which the FAS SKO came to the conclusion that the operation to increase the Criminal Code in cash and followed by the next day, payment at the expense of these funds for the work performed in favor of the financing company of the MC is the payment of invoices from one organization with invoices from the same organization. For this reason, in this situation there is no statutory VAT refund condition - payment on account own funds companies.

Increase in the company's charter capital

Authorized capital An LLC can be increased at the expense of the company's property or contributions from current or potential participants, for a JSC there are two ways - an increase in the nominal value of shares and the placement of additional shares. Moreover, the increase in the nominal value of shares is possible only at the expense of the property of the company. In this way, relevant ways increase in the authorized capital for the purposes of financing the company are:

• for LLC - at the expense of contributions of current and potential participants;
• for JSC - by placing additional shares among current and potential shareholders (placement of additional shares at the expense of the company's property does not lead to a change in the ratio of shareholding of various participants - clause 5, article 28 of the JSC Law).

The greatest number of questions in law enforcement practice arises just in the latter cases. Problems arise in situations where an increase in the authorized capital leads to a change in the shareholder structure. For these reasons, in order to make a decision to increase the Criminal Code, it is necessary to statutory quorum.

For AO it is provided next order increase in the authorized capital - the decision must be made by the general meeting of shareholders on the basis of the proposal of the board of directors, unless otherwise provided by the charter of the company, or by the board of directors, if this authority is granted to it by the charter of the company. The decision to increase the management company of an LLC at the expense of the participants' funds is made at the general meeting of participants by a majority of at least 2/3 of the total number of participants. In addition, each participant has the right to additional contribution, not exceeding the part of the total cost of additional contributions, proportional to the size of its share in the authorized capital of the company.

Not later than one month from the date of the expiration of the period for making additional contributions, the general meeting of participants must decide to approve the results of this procedure and to make appropriate changes to the company's charter. At the same time, the nominal value of the share of each participant who made an additional contribution increases in accordance with the ratio determined by the decision to increase the authorized capital.

Loss of corporate control

An increase in the authorized capital at the expense of participants or shareholders leads to a change in the shareholder structure in cases where any of the shareholders (participants) does not pay for the shares offered to him or does not contribute funds to the authorized capital of the LLC in proportion to his share. The need for a decision to increase the authorized capital of only 2/3 of the votes at the general meeting of participants in the LLC and half of the votes of shareholders at the general meeting of shareholders (with the condition of mandatory offer board of directors) enables majority shareholders to expand corporate control and dilute minority shareholders' shares by increasing the capital stock.

Example 2

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An example of a corporate conflict in CJSC FC Lokomotiv can be cited as an illustration. The shareholding structure of the club is as follows: 70% of the shares are owned by Russian Railways, 15% of the shares are owned by Valery Filatov (former president) and Yuri Semin (former, now current, head coach). CJSC FC Lokomotiv decided to increase the authorized capital by placing additional shares in the amount of 3 billion rubles. Given that the club's authorized capital is 50,000 rubles, and minority shareholders will not contribute funds to pay for shares, their shares will be diluted to negligible values. The difficult situation in the club due to the unsatisfactory results of the team prompted the management of ZAO FC Lokomotiv to turn to Yuri Semin with a request to lead the team. For this reason, the dispute that arose during the first court session on May 25, 2009 was decided to be terminated by the conclusion of a settlement agreement that would suit both parties. If the dispute had continued, then Semin would hardly have been able to recognize the increase in the Criminal Code as illegal, and his share of the shareholding could have been significantly reduced.

The only way to protect the rights of participants in an LLC is to fix it at the level of the charter in accordance with paragraph 8 of Art. 37 of the Law on LLC requirements for the need for a larger (than 2/3) number of votes to make a decision to change the charter and increase the Criminal Code. In joint-stock companies the situation is more complicated: shareholders' rights are guaranteed by the rule that additional shares can be placed only within the limits of the number of authorized shares approved by the charter of the company. Decisions to change the charter can only be made by ¾ of the total number of votes at the general meeting of shareholders (clause 4, article 49 of the JSC Law). Thus, only a package of 25% plus 1 share can block changes to the charter.

Contribution to property

The charter of an LLC may provide for the obligation of participants to make contributions to the property of the company on the basis of a decision of the general meeting of participants, non-fulfillment of which gives the company the right to demand that the participant pay the corresponding sum of money(Article 27 of the LLC Law). Another side of the corporate characteristic of a contribution to the company's property is its civil law qualification. From the point of view of corporate law, a contribution to the company's property is not a gratuitous transfer of funds, as it increases the actual value of the share that each participant has the right to demand when leaving the LLC.

Litigation practice

This conclusion is confirmed by the materials of judicial practice: the decision of the FAS MO dated January 23, 2006 in case No. KA-A40 / 13961-05-P; FAS ZSO dated May 4, 2006 in case No. F04-5209 / 2005 (22104-A27-3); FAS MO dated March 9, 2007 in case No. KA-A40 / 875-07.

From a tax point of view, a contribution to the company's property is considered a gratuitous transfer of funds. Recall that property (works, services) or property rights are considered received free of charge if their receipt is not associated with the recipient's obligation to transfer property (property rights) to the transferor (perform work for him, provide services to him) (part 2 of article 248 Tax Code of the Russian Federation). In this case, the company does not have such an obligation, therefore, the property received in accordance with Art. 27 of the LLC Law, should be accounted for as non-operating income (clause 8, article 250 of the Tax Code of the Russian Federation). An exception to this rule is 11 p. 1 art. 251 of the Tax Code of the Russian Federation (see the section "Free transfer").

Litigation practice

The tax qualification of a contribution to the company's property is also confirmed by the materials of judicial practice: the decision of the Federal Antimonopoly Service of the Moscow Region dated December 2, 2004 in case No. KA-A40 / 11127-04; Ninth Arbitration Court of Appeal dated 12/25/2006, 01/09/2007 in case No. 09AP-15910/2006-AK.

Negative civil law consequences (qualification of the transaction as a donation between commercial organizations) does not occur in this case. It is also necessary to take into account the existence of the obligation of the participant to make a contribution and the corresponding right of claim from the company.

Transfer of property joint-stock company its shareholder is not a gratuitous transfer of funds for the purposes of civil law qualification for the same reasons that are given above in relation to LLC: the contribution leads to an increase in the assets of the company, as well as an increase in the value of shares, liquidation value and the amount of dividends paid. The tax qualification of such contributions will be the same as in the case of an LLC, i.e. they will be treated as free transfer funds.

An essential feature of the legal regime of contributions to the property of a joint-stock company, which distinguishes them from contributions to the property of an LLC, is the absence of an obligation for shareholders to make these contributions, that is, a joint-stock company is not entitled by its charter to establish such an obligation for shareholders. The question of the possibility of resolving this situation by a shareholder agreement remains open, but in this case, such an obligation will apply only to persons who are parties to such an agreement, and not to all shareholders (clause 4, article 32.1 of the JSC Law).

Free transfer

In accordance with paragraph 8 of Art. 250 of the Tax Code of the Russian Federation, income in the form of property (works, services) received free of charge or property rights are qualified as non-operating income and are taken into account when calculating the income tax base. According to sub. 11 p. 1 art. 251 of the Tax Code of the Russian Federation, the exception is income in the form of property received Russian organization free of charge:

• from an organization whose contribution (share) exceeds 50% of the authorized (share) capital (fund) of the receiving party;
• from an organization whose authorized (share) capital (fund) consists of more than 50% of the contribution (share) of the receiving organization;
• from individual whose contribution (share) exceeds 50% of the authorized (share) capital (fund) of the receiving party.

Applied to the topic under consideration we are talking on tax-free transfer of funds within the holding: from the parent organization to a subsidiary and from an individual who is a majority participant or shareholder to the company.

The main problems are related to the rule according to which property is not recognized as income for tax purposes only if, within one year from the date of receipt, it (with the exception of cash) is not transferred to third parties.

According to the Ministry of Finance, if the received property is leased, trust management, use, pledge, as well as on any other right that does not entail the transfer of ownership, the taxpayer cannot apply the relief provided for in sub. 11 p. 1 art. 251 of the Tax Code of the Russian Federation (letter No. 03-03-04/1/100 dated February 9, 2006).

Litigation practice

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Arbitrage practice confirms that non-payment of a share in the authorized capital of an LLC or shares and withdrawal of the transferor from the membership during the year do not affect the application tax break according to sub. 11 p. 1 art. 251 of the Tax Code of the Russian Federation (decrees of the FAS MO dated 15.06.2006 No. KA-A41 / 5286-06 in case No. A41-K2-11674 / 05; FAS DO dated 12.30.2005 No. F03-A73 / 05-2 / 4367 ). The courts conclude: the withdrawal of an individual before the end of the year from the founders of the company does not change the legal status of the specified funds as received free of charge and not subject to accounting as income when determining the income tax base.

Contradictory practice on the issue of influence on tax consequences norms of Art. 575 of the Civil Code of the Russian Federation on the prohibition of donations between commercial organizations.

Litigation practice

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There is a practice that focuses on the application of the tax benefit established by subpara. 11 p. 1 art. 251 of the Tax Code of the Russian Federation, regardless of the civil law qualification of the transfer: letter of the Ministry of Finance of Russia dated November 9, 2006 No. 03-03-04 / 1/736; Decree of the FAS SZO dated December 23, 2005 No. A56-4986 / 2005. In the resolution dated 05.12.2005, 18.11.2005 No. KA-A40 / 11321-05, the FAS MO indicated that in order to apply the norm sub. 11 p. 1 art. 251 of the Tax Code of the Russian Federation, it is necessary to comply with the requirements of civil law.

In our opinion, the civil law qualification of a transaction as a donation between commercial organizations entails its nullity. As a result, the issue of applying the norms of the Tax Code of the Russian Federation in this case should not be raised, since this document does not regulate civil legal relations relating to the invalidity of transactions.

Litigation practice

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Judicial practice knows cases when organizations used the provision of sub. 11 p. 1 art. 251 of the Tax Code of the Russian Federation in order to transfer funds within the holding between organizations that are not directly related to each other. Having received funds from the parent organization, the company immediately transferred them to its "daughter", which did not depend on the original organization in any way. When transferring these funds directly, it would be necessary to take into account income in the form of property received free of charge in accordance with paragraph 8 of Art. 250 of the Tax Code of the Russian Federation, and the taxpayer avoided this. Thus, the purpose of these transactions was not to finance a subsidiary, but to evade income tax. A similar scheme was used by OAO NK Yukos. How it ended is known to all. As an example, we can cite the decision of the Federal Antimonopoly Service of the Moscow Region dated 12/11/2006, 12/18/2006 No. KA-A40 / 12056-06 in case No. A40-31508 / 06-116-182.

An analysis of the above methods of financing the activities of business entities allows us to draw the following conclusions:

1. the contribution of property to the authorized capital when paying for shares or shares does not entail adverse tax consequences, but a large amount of the authorized capital may be unprofitable for other reasons;
2. contributions to the property of LLCs and JSCs have tax consequences in the form of accounting for such property as income when determining the income tax base, except when they are received from a parent or subsidiary organization or an individual - a majority participant or shareholder;
3. gratuitous transfer of funds must be carried out in compliance with the norms of Art. 575 of the Civil Code of the Russian Federation on the prohibition of donations between commercial organizations and is appropriate if there are signs of subp. 11 p. 1 art. 251 of the Tax Code of the Russian Federation (transfer of funds from a parent or subsidiary organization or an individual - a majority participant or shareholder).

Thus, the most preferred methods of financing companies from those considered in this article are the contribution of property as payment for shares or shares at a price higher than their nominal value (the difference between the price of payment for a share or share and the nominal value of the latter is not subject to income tax and does not lead to inflation UK) and the transfer of funds within the holding in accordance with sub. 11 p. 1 art. 251 of the Tax Code of the Russian Federation, subject to the norm of the Civil Code of the Russian Federation on the prohibition of donations between commercial organizations.