Prepared a fresh analytical section.

Often, to ensure the property security of the business and the effective use of property in the Group of Companies, the redistribution of assets is required. The economic meaning of the transfer of property in a holding structure is objectively different from the sale or other form of its transfer to third parties, because in fact we are shifting assets from one “own pocket” to another. Accordingly, the taxation of these transactions has its own characteristics: tax legislation provides for a tax-free transfer of assets within holding structures.

The practice of applying these norms is already almost settled. Less and less often, the tax authorities charge income tax, calling the transfer of property within the Group of Companies a gift prohibited between legal entities. Nevertheless, there are some fundamental nuances that affect the success of the entire asset transfer procedure, including taking into account the amendments made to the Tax Code of the Russian Federation.

Recall that the tax-free transfer of assets between related companies is different and includes, for example, such methods as a contribution to the authorized capital, reorganization in the form of a spin-off, and so on.

Today we will focus on one of these methods - contributions to property without increasing the authorized capital of the organization when a participant (shareholder) transfers certain benefits to his company (cash, shares (shares) in other legal entities, real estate, etc.) to improve its financial and / or property condition. At the same time, the authorized capital does not increase, the nominal size of the shares of participants does not change.

The civil law grounds for contributions to property are Article 66.1 of the Civil Code of the Russian Federation, Art. 27, art. 32.2 of the Law "On JSC".

If the charter of the receiving party is standard and does not contain detailed norms, then the contribution to the property is possible only in money and only in proportion to all participants (shareholders). In an LLC, a decision on a contribution to property is made by at least 2/3 of the votes. In a joint-stock company, making a contribution is possible on the basis of an agreement approved by the Board of Directors, or by decision of the general meeting of shareholders.

Wherein The Tax Code provides for two preferential mechanisms, which allow you to exempt inherently gratuitous deposits from taxation:

1. Free transfer of property on the basis of subparagraph 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation.

By itself, it comes in two forms:

transfer of property from the "mother" or an individual participant (shareholder) in favor of an organization whose authorized capital consists of more than 50% of the contribution of the transferring party;

"child gift". This is a transfer from the subsidiary to the parent company, which owns more than 50% in the authorized capital of the subsidiary.

2. Contribution to the property of a business company or partnership from its participant or shareholder (clause 3.7, clause 1, article 251 of the Tax Code).

In other words, the Tax Code separated these grounds, including by the time they appeared in the law, endowing them with some features of application.

1. Free transfer of property under subparagraph 11 of paragraph 1 of Art. 251 Tax Code of the Russian Federation

Firstly, only property can be transferred. Money is property.

That is, this rule does not apply to property and non-property rights (assignment of the right to claim, corporate rights, intellectual property rights, etc.). Violation of these conditions will lead to additional accrual of income tax, penalties and fines.

Exemption from taxation in accordance with paragraphs. 11 p. 1 art. 251 of the Tax Code also applies to debt forgiveness.

Secondly, it is impossible to transfer it to third parties within one year from the date of receipt of property (with the exception of funds).

In other words, significant restrictions are imposed on the use of property: it cannot be sold, rented or otherwise disposed of. The logic of the legislator is understandable - a kind of assistance from a member of his company is exempted from taxation, because he transferred the property for use by himself, and not for rent, for example.

As a result, the transfer of assets on the basis of paragraphs. 11 p. 1 art. 251 NK in certain situations seems impossible. However, these restrictions do not apply to deposits in accordance with sub. 3.7 p. 1 art. 251 NK.

2. Contribution to property under sub. 3.7. paragraph 1 of Art. 251 of the Tax Code of the Russian Federation.

Signed 3.7. paragraph 1 of Art. 251 of the Tax Code allows you to exempt from taxation the investments of participants both in the form of property and in the form of property or non-property rights. In this case, the size of the share of the participant does not matter.

The provisions of this paragraph apply to virtually any method of increasing property, including an increase in the company's assets in the form of a transfer of things, money, shares / shares in companies or securities, or, for example, rights of claim under an assignment agreement.

! Subparagraph 3.7 of paragraph 1 of Article 251 is new and appeared in the Tax Code only in 2018. He replaced the famous sub-clause 3.4, which received the popular name "contribution in order to increase net assets." Subclause 3.7 has a more concise content, referring to civil law - you can transfer everything that allows the Civil Code of the Russian Federation and special laws.

However, this method of tax-free transfer also has its limitations:

Property, property or non-property rights may be transferred only from the participant (shareholder) the respective business company. That is, the transfer in the opposite direction - from the "daughter" in favor of the parent company - is impossible.

Investments in property are possible only in relation to business companies or partnerships. For example, such a contribution to a production cooperative cannot be made without tax consequences.

3. "Child Gift"

The Tax Code allows you to transfer property without taxes not only from the "mother", but also in the opposite direction - from the "daughter" to the company - "mother". The exemption is granted under subparagraph 11, paragraph 1, article 251 of the Tax Code, subject to an important condition - the share of the parent company in the authorized capital of the "daughter" is more than 50%.

Important!

Transferring a “child gift” to an individual participant without taxes will not work. Such payment will be equated to dividends.

At some time, the tax authorities had problems with the “daughter gift”: they stubbornly charged income tax when transferring property to parent organizations, citing the fact that gifts are prohibited between legal entities.

The Presidium of the Supreme Arbitration Court of the Russian Federation put an end to this matter, indicating in its Resolution:

“Economic relations between the main and subsidiary companies may involve not only investments of the main company in the property of the subsidiary at the stage of its establishment, but also at any stage of its activity. In addition, economic expediency in the relationship between the subsidiary and the parent company may necessitate the transfer of property back. At the same time, the absence of a direct counter-provision is a feature of the relationship between the main and subsidiary companies, which, from an economic point of view, are a single economic entity.
Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 4, 2012 No. 8989/12.

After that, the Ministry of Finance of the Russian Federation also supports the possibility of a tax-free “child gift”.

"Subsidiary gift" in some cases is an alternative to the payment of dividends, when the conditions for the tax-free transfer of the amount of profit from the subsidiary to the parent organization are not met, in particular:

• the holding period of 365 days has not been met;
• in addition to the majority participant with a share of more than 50%, there are minority shareholders, in whose favor one does not want to “distribute profits”: dividends are distributed in most cases proportionally, and such a requirement is not imposed on a “child gift”.

About debt forgiveness

As we have already mentioned, sub. 3.7. paragraph 1 of Art. 251 of the Tax Code of the Russian Federation replaced subparagraph 3.4, which directly provided for the possibility of contributing to property by forgiving a debt by a member of his organization.

Now there is no such clarification, although the possibility is still relevant.

Let's see if it is now possible to forgive debt without taxes.

When the share of participation is more than 50%, then with confidence we can refer to the already known to us subpara. 11 p. 1 art. 251 of the Tax Code of the Russian Federation.

If the share of participation in a subsidiary is less than 50%, then we can only be guided by the new subparagraph 3.7 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation.

Neither the Ministry of Finance of the Russian Federation, nor the courts have yet voiced their position.

We believe that the way out of the situation is as follows:

At the first stage, the participant (shareholder) or the general meeting, as before, decides on making a contribution to the property. But not in the form of debt forgiveness, but by transferring funds, the amount of which is exactly equal to the debt formed before him (for example, the amount of an unrepaid loan).

The decision is made but not implemented.

At the second stage, the participant (shareholder) - the lender signs an agreement with the subsidiary on the offset of counterclaims (in our example with a loan - obligations to repay the loan and make a cash contribution).

As a result, the liability of the subsidiary to the participant is settled tax-free.

For reliability, in the charter of a subsidiary company, as in the application of clause 3.4, which has become invalid, it is advisable to include a provision on the possibility of making contributions to property not only in money.

A spoon of tar. VAT

But what happens if a participant, for example, a company on the DOS, transfers not money, but property as a contribution? Is this transaction subject to VAT? Yes and no. In the sense that the transfer of property itself is not subject to VAT, but the transferring party (if it is on the general taxation system) must recover VAT from the residual value of the property. In this case, the restored value added tax can be included in the costs.

But the receiving party will not be able to deduct VAT, since it did not pay money for this property, because a contribution to property is a kind of gratuitous transfer. So you can’t do without a fly in the ointment in a barrel of honey ...

How to get a deposit back

A contribution to property is irrevocable: unlike a loan, it cannot be demanded back.

A kind of return on investment is possible only in the form of dividends. As well as for investments in the form of a contribution to the authorized capital.

However, unlike contributions to authorized capital, the amount of contributions made to property will not be used to offset the costs of acquiring a share (shares) in the event of the subsequent sale of a share (shares), exit or liquidation of the company.

This injustice may soon be eliminated. The State Duma is considering a bill according to which the receipt by the parent organization from the "daughter" of funds within the limits of the previously made contribution to the property will not be subject to income tax.

If the bill is passed, there will be a tax-free way to "return" deposits, along with dividends, which in some cases are taxed at a rate of 13%.

"Underwater rocks"

Any tax-free transactions traditionally attract the attention of regulatory authorities. Investing in property is no exception.

The tax authorities may attempt to recognize a transfer of property and/or property/non-property rights between “related” entities as economically unsound if a reasonable “business purpose” is difficult to discern.

For example, a new member makes a generous contribution and immediately leaves the company. The tax authority will most likely say that the lender "investor" did not intend to participate in the activities of the company and receive profit from this activity, and his only goal when entering the business was the tax-free transfer of expensive property or money.

taxCOACH® example

We will consider how this tool can work successfully using the example of the case of experts from the taxCOACH Center for the retail sector. Imagine a business that is conducted within a group of companies. Retail stores are independent legal entities (at the same time, the area of ​​\u200b\u200beach store allows the use of UTII).

However, what about the profit of each operating point? You can use the already known contribution to the property! Retail companies establish a legal entity (let's designate it as an investment center) and contribute the agreed funds from the sale of products as contributions to the property. There is no need to pay income tax, and the investment center can freely dispose of the participants' money, for example, by investing them in new areas of activity.

Transaction form

Also, do not forget about the formalities. As a rule, for the Federal Tax Service, a decision of the authorized body of a legal entity on the transfer of property to a subsidiary or parent company, as well as an act of acceptance and transfer of property, is sufficient.

If the transfer of rights to property requires registration, then Rosreestr sometimes requires that an appropriate document be drawn up - contract (agreement) for the alienation of property, property and non-property rights for investment purposes.

The agreement will need to mention the following:

transferred object - property, property and non-property rights. Details should allow for the state registration of the transfer of rights, if necessary, and also properly put the asset on the balance sheet of the receiving party;

the purpose of the transfer - they must be of an investment nature. This is necessary to emphasize the right to exemption from VAT on the transfer of property;

legal grounds for the transfer of property: sub. 3.7 or sub. 11 p. 1 art. 251 NK.

So, we briefly summarize the main features of the gratuitous transfer of property:

Instead of the total, let us once again denote main theses:

A contribution to property is an operational way of tax-free transfer of funds and other property of a subsidiary. It is not required to visit a notary and make changes to the constituent documents, which is mandatory when increasing the authorized capital.

The Tax Code of the Russian Federation provides for two preferential mechanisms - subparagraph 3.7 and subparagraph 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation. Each of them provides interesting opportunities, but is not without limitations. Therefore, we carefully read the law and choose the method that suits the specific situation.

Do not forget that in order to make a contribution to property, the Charter of the company should provide for such an opportunity for its participants, including the ability to make contributions disproportionately to participation in the authorized capital, as well as any property, property rights or by debt forgiveness.

Subparagraph 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation also makes it possible to transfer back - from the "daughter" to the mother organization, whose share in the authorized capital is more than 50%. We called it "child gift". It can be an alternative to paying dividends, for example, when, in addition to the majority participant with a share of more than 50%, there are minority shareholders in whose favor one does not want to “distribute profits”: dividends are distributed in most cases proportionally, and such a requirement is not imposed on a “child gift”.

Publication

Contributions to the authorized capital

It is possible to provide in the constituent documents and pay for a significant authorized capital of a company both during its creation and in the order of capital increase.

A contribution to the authorized capital may be cash, securities, property, property and other rights having a monetary value.

The following aspects should be noted as advantages of this form of financing:

Contributions to the authorized capital do not form the tax base for income tax (subclause 3, clause 1, article 251 of the Tax Code of the Russian Federation);

Contributions to the authorized capital are not subject to value added tax (subclause 4, clause 3, article 39 of the Tax Code of the Russian Federation).

Payment of shares/shares

When paying for shares (shares) in cash, no disputes arise. When making non-cash contributions to pay for shares (shares), the following points must be taken into account.

The receiving organization, as well as the transferring one, does not have an income-loss when receiving (transferring) property in payment for shares (shares) (Article 277 of the Tax Code of the Russian Federation).

Property received in the form of a contribution to the authorized capital of the organization, for the purposes of taxation of profits, is accepted at cost (residual value). The cost (residual value) is determined according to the tax records of the transferring party on the date of transfer of ownership of the specified property (property rights), taking into account the additional costs that are incurred by the transferring party when making such a contribution (contribution), provided that these costs are defined as a contribution (contribution) to the authorized (share) capital. If the receiving party cannot document the value of the contributed property (property rights) or any part thereof, then the value of this property (property rights) or part thereof shall be recognized as equal to zero.

As mentioned above, the contribution to the authorized capital is not subject to VAT.

However, if the property received as payment for the placed shares or shares will be used in activities subject to VAT, then the company has the right to deduct the VAT restored by the transferring party (provided that these amounts are indicated in the documents that formalize the transfer of the contribution to the charter capital (paragraph 3 subparagraph 1 clause 3 article 170, clause 11 article 171, clause 8 article 172 of the Tax Code of the Russian Federation)).

An invoice for deduction is not required, and the documents registering the transfer of property are registered in the purchase book (clause 8 of the Rules for maintaining registers of received and issued invoices, purchase books and sales books when calculating value added tax, hereinafter referred to as the Rules ).

The same documents (their copies) must be kept in the register of received invoices (paragraph 4, clause 5 of the Rules). By virtue of paragraph 8 of Art. 172 of the Tax Code of the Russian Federation, these deductions are made after the registration of property received as payment for a contribution to the authorized capital. 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 the event that the tax amount was not actually recovered by the transferring party, the company has no right to deduct. This provision is confirmed by judicial practice, for example, the decision of the Federal Antimonopoly Service of the Urals District dated January 27, 2009 No. Ф09-10568 / 08-С2. A necessary condition for the deduction of VAT amounts generated from the investment of property in the authorized capital is the restoration of previously legally deductible VAT amounts by persons who have invested property in the authorized capital.

Contribution of property to the authorized capital by an individual

Separately, it is necessary to dwell on the situation when property in the authorized capital was contributed by an individual who is not an individual entrepreneur. Is it possible in this case, having restored the VAT, to accept it for deduction?

Practice follows the path of an unambiguously negative answer to this question. Individuals are initially not VAT payers (Article 145 of the Tax Code of the Russian Federation). Therefore, when transferring property to the authorized capital, they should not recover VAT and allocate the amount of tax in the relevant documents.

However, even if the amount of VAT is allocated, the company is not entitled to accept it for deduction. So, in a specific case, the sole participant of the Company - an individual transferred property as a contribution to the authorized capital. The courts rightly pointed out that this individual, not being a VAT payer, was not entitled to claim VAT (paid upon purchase of goods) for deduction. Accordingly, this individual did not need to restore the amount of VAT in accounting, since this amount was not presented for reimbursement from the budget and could not be presented by an individual who does not have the status of an entrepreneur and is not a VAT payer (Decree of the Federal Antimonopoly Service of the North-Western District of 29.08. 2008 No. A42-5628/2007).

The unequivocal disadvantage of this method of financing is that if, at the end of the second and each subsequent financial year, the value of the company's net assets turns out to be less than its authorized capital, the company is obliged to announce a decrease in its authorized capital to an amount not exceeding the value of its net assets, and register such a decrease according to established order. If, after this period, the value of net assets turns out to be less than the minimum amount of the authorized capital, then the company is subject to liquidation (clause 3, article 20 of Federal Law No. 14-FZ of February 8, 1998 "On Limited Liability Companies", hereinafter - Federal Law No. 14-FZ, paragraphs 4, 5, article 35 of the Federal Law of December 26, 1995 No. 208-FZ "On Joint-Stock Companies", hereinafter - Federal Law No. 208-FZ).

Judicial practice here follows the path of providing society with an opportunity to improve its financial situation. For example, the court determined that the interrelated provisions of paragraph 4 of Art. 99 of the Civil Code of the Russian Federation and part 3 of Art. 20 of Federal Law No. 14-FZ do not imply that the company is subject to immediate liquidation as soon as net assets begin to decrease, but allow the founders to take the necessary measures to improve its financial condition. Taking into account the evidence presented that the financial condition of the company is stable, the requirements of the tax authority to liquidate the company are unfounded (Decree of the Ural District dated March 26, 2009 No. F09-1563 / 09-C4).

In another case, the court refused to satisfy the application for liquidation of the company. The court pointed out that a separate violation of legal acts, committed both during the creation of a legal entity and in the course of its activities, cannot in itself be the only reason for terminating the activities of a legal entity through its liquidation, provided that this violation is of a remedial nature. . Consequently, an LLC is not subject to immediate liquidation as soon as net assets begin to decrease, since the founders can take the necessary measures to improve its financial condition (decree of the Federal Antimonopoly Service of the Central District dated February 26, 2009 in case No. A68-2742 / 08-28 / GP-9- 08).

However, there are also solutions in favor of the tax authorities. For example, the arbitration court satisfied the requirements of the tax authority to liquidate the LLC, since the value of the company's net assets for three years was less than the minimum amount of its authorized capital, and therefore, in accordance with Art. 20 of Federal Law No. 14-FZ, the company is subject to liquidation (decree of the Federal Antimonopoly Service of the Volga-Vyatka District dated March 10, 2009 in case No. A43-22548 / 2008-19-481).

The claim for the liquidation of the legal entity was legitimately satisfied, since at the time of the tax audit, the value of the net assets of the latter was less than the minimum amount of the authorized capital (Decree of the Federal Antimonopoly Service of the Volga-Vyatka District dated January 23, 2009 in case No. A43-6947 / 2008-19-203) .

Payment of shares (shares) above their nominal value

The current legislation provides for the possibility of paying for shares and shares in an amount exceeding their nominal value. This is possible both during the initial acquisition of shares (shares) and in the process of increasing the authorized capital. 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 received in this way do not increase the authorized capital of companies and are not taken into account as income when determining the tax base for corporate income tax (subclause 3, clause 1, article 251 of the Tax Code of the Russian Federation).

Judicial practice in this area is on the side of the taxpayer. An example is the following case. The Inspectorate considered that the taxpayer unlawfully did not include income in the form of the difference between the market and nominal value of the contribution to the authorized capital in the composition of income subject to income tax. As the court pointed out, recognizing the position of the Inspectorate as unlawful, the fact that the market value of the contribution to the authorized capital of the company, made by its new participant, with a nominal value of 3800 rubles. (the share is 19% of the authorized capital of the company) is 103,800,000 rubles, does not change the essence of cash as a contribution to the authorized capital of the company, by virtue of subpara. 3 p. 1 art. 251 of the Tax Code of the Russian Federation not subject to income tax (Resolution of the Federal Antimonopoly Service of the Central District of October 23, 2008 No. A62-1202 / 2008).

From the foregoing, it can be seen that this method of financing has an advantage over the usual payment of shares (shares), since it makes it possible to maintain a small amount of authorized capital, which, accordingly, entails a reduction in risks that are possible if the amount of authorized capital following the results of the second and each subsequent financial year will exceed the amount of the company's net assets. Also, the liability of the participants (shareholders) of the company to creditors is limited by the size of their shares (shares).

VAT evasion schemes using contributions to the authorized capital

Let us dwell a little on the abuses on the part of taxpayers related to the payment for shares, shares in the authorized capital, which have already been well studied by the tax authorities.

The first method is the use of a contribution to the authorized capital as a way to avoid paying VAT.

When using a contribution to the authorized capital as a way to avoid paying VAT, the transfer of property to the authorized capital of a company does not take place for the purpose of acquiring shares (shares) to receive investment income, but is actually aimed at alienating (selling) the property of the company in order to avoid paying VAT when it is sold .

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.

Such a scheme was considered by the arbitration court, the conclusions of which are contained in the resolution of the Federal Antimonopoly Service of the North Caucasus District dated November 20, 2006 No. F08-5894 / 2006-2447A. The judicial body came to the conclusion that the transfer of funds to the authorized capital was not of an investment nature and therefore cannot be exempted from VAT.

The second way is to receive a VAT refund from the budget by a person who did not actually pay for the goods.

Funds are transferred from the parent organization to the subsidiary, and the latter almost immediately pays for the goods purchased from the parent organization with these funds. The scheme can use another intermediate link through which funds are transferred. In this case, 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 money for it and received the right to a VAT deduction, and the initial parent organization is returned the money initially paid.

In this case, the actual goods often remain in the warehouse of the parent organization. In this regard, the resolution of the Federal Antimonopoly Service of the North Caucasus District dated April 5, 2006 No. F08-1281 / 2006-548A is noteworthy. The court came to the conclusion that the operation to increase the authorized capital in cash and the next day payment at the expense of these funds for the work performed in favor of the organization financing the authorized capital constituted the payment of invoices of one organization with invoices of the same organization. For this reason, in this situation, there is no statutory condition for VAT refunds - payment at the expense of the organization's own funds.

Contributions to the company's property as a way of financing

This method of financing can only be used in relation to a subsidiary. Advantages of this form of financing:

the authorized capital does not increase, and, consequently, the risks associated with the excess of the authorized capital over the net assets of the company are minimized;

there is no need to amend the constituent documents and carry out any registration procedures with the Federal Tax Service and the Federal Financial Markets Service of Russia 1 ;

it is not required to involve an independent appraiser when making contributions to the property of the company;

subject to sub. 11 p. 1 art. 251 of the Tax Code of the Russian Federation, the company does not receive taxable non-operating income;

there is no tax base for VAT;

The legislation does not contain restrictions on the amount and frequency of contributions.

Legal regulation

The possibility of making contributions to the property of the company is provided for in Art. 27 of Federal Law No. 14-FZ. For its implementation, it is necessary that the obligation to make contributions to the property of the company is contained in the Charter of the LLC.

The introduction itself is carried out on the basis of a decision of the general meeting of participants. Contributions are made by all participants of the company in proportion to their shares in the authorized capital of the company, unless otherwise provided by the Charter. Failure to fulfill this obligation by a participant gives the company the right to require the participant to make an appropriate contribution. As a general rule, contributions are made in cash, unless otherwise provided by the charter or decision of the general meeting of participants in the company.

It is necessary to consider this legal institution from the civil law and tax points of view. From the point of view of corporate law, a contribution to the property of a company is not a gratuitous transfer of funds, since it increases the actual value of the share that each participant has the right to demand when leaving the LLC. This conclusion is confirmed by the materials of judicial practice (decisions of the Federal Antimonopoly Service of the Moscow District dated January 23, 2006 No. KA-A40 / 13961-05-P, dated March 9, 2007 No. KA-A40 / 875-07, Federal Antimonopoly Service of the West Siberian District dated May 04, 2006 No. Ф04 -5209/2005(22104-A27-3)).

From a tax point of view, a contribution to the company's property is considered a gratuitous transfer of funds. Part 2 Art. 248 of the Tax Code of the Russian Federation contains a provision according to which property (works, services) or property rights are considered received free of charge, if the receipt of this property (works, services) or property rights is not associated with the recipient's obligation to transfer property (property rights) to the transferor (perform work for the transferor, provide services to the transferor).

In this case, the company does not have such an obligation, therefore, the property received in accordance with Art. 27 of Federal Law No. 14-FZ, should be accounted for as non-operating income in accordance with paragraph 8 of Art. 250 of the Tax Code of the Russian Federation. An exception to this rule is contained in sub. 11 p. 1 art. 251 of the Tax Code of the Russian Federation, according to which, when determining the tax base for income tax, income in the form of property received by a Russian organization free of charge from:

■ organizations, if the authorized (share) capital (fund) of the receiving party consists of more than 50% of the contribution (share) of the transferring organization;

■ organizations, if the authorized (share) capital (fund) of the transferring party consists of more than 50% of the contribution (share) of the receiving organization;

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

At the same time, the received property is not recognized as income for tax purposes only if, within one year from the date of its receipt, the said property (except for cash) is not transferred to third parties.

Thus, the use of a contribution to the company's property as a method of financing an LLC is associated with the inclusion of such property in non-operating income as property received free of charge, with the exception of an intra-holding transfer of funds in accordance with subpara. 11 p. 1 art. 251 of the Tax Code of the Russian Federation.

Contribution to JSC property

A separate discussion deserves the question of whether it is possible to carry out such a procedure as a contribution to the property of a joint-stock company.

The legislation on joint-stock companies does not provide for the possibility of making contributions to the company's property. But there is no prohibition on the implementation of this procedure. Subparagraph 11, Part 1, Art. 251 of the Tax Code of the Russian Federation does not contain a reference to the type of business entity that can take advantage of this benefit. There is also a letter from the Ministry of Finance of Russia dated November 9, 2006 No. 03-03-04 / 1/736, in which the financial department notes that sub. 11 p. 1 art. 251 of the Tax Code of the Russian Federation applies regardless of the form in which the organization was created (JSC, CJSC, LLC, etc.).

If a contribution to the property of a joint-stock company is made by a shareholder - a legal entity, then a certain conflict arises. On the one hand, civil law prohibits donations between commercial organizations (even if it is a subsidiary and a parent company). On the other hand, formally 11 p. 1 art. 251 of the Tax Code of the Russian Federation allows the transfer of property without compensation, without specifying for which business entities this is possible.

Considering this situation, it must be taken into account that the Tax Code of the Russian Federation does not regulate civil law relations - it can only determine their tax consequences.

On the one hand, since there is no prohibition, it is possible to apply the analogy of the law and make a contribution according to the rules established in Federal Law No. 14-FZ, subject to restrictions on donation (donation issues will be discussed in detail below). By making a contribution to the property of a joint-stock company, a shareholder counts on the development of the company, increasing its liquidity and, as a result, on increasing the market value of its shares, increasing the amount of dividends paid. These are, among other things, arguments in favor of the absence of donations from a civil law point of view.

But, despite this, the risk of recognizing this transaction as invalid by the court cannot be ruled out (Decree of the Federal Antimonopoly Service of the Moscow District dated 05.12.2005, 18.11.2005 No. КА-А40/11321-05).

If we do not consider civil law qualifications, then the tax consequences will not differ from those associated with an LLC. These contributions will be treated as a donation of funds. If the contribution is made by a shareholder who owns more than 50% of the authorized capital, non-operating income will not arise. If financing is provided by a shareholder owning less than 51%, then the company will have non-operating income.

Decree of the Federal Antimonopoly Service of the Moscow District dated February 20, 2008 No. KA-A41 / 420-08 contains confirmation that property received free of charge can also be excluded from the tax base from a joint-stock company. In this decision, the application to invalidate the decision of the tax authority to collect penalties on income tax was rightfully satisfied, since the applicant rightfully did not take into account in taxation the property received by him as a Russian organization free of charge from the organization, since the authorized capital of the transferring party is more than 50 % consists of the contribution of the receiving party.

The benefit granted under s. 1 p. 1 art. 251 of the Tax Code of the Russian Federation, according to which the received property is not recognized as income for tax purposes, is valid on the condition that within one year from the date of its receipt, the said property (with the exception of cash) is not transferred to third parties. As can be seen from the above norm, problems arise if property was transferred in non-monetary form. What problem situations can arise here?

Transfer of property received free of charge from the parent (subsidiary) organization during the year on a title other than ownership

If the received property is transferred for rent, trust management, use, pledge, as well as when transferring property on any other right that does not entail the transfer of ownership, the taxpayer is not entitled to apply the benefits provided for in subpara. 11 p. 1 art. 251 of the Tax Code of the Russian Federation. Confirmation of this is contained in the letter of the Ministry of Finance of Russia dated February 9, 2006 No. 03-03-04 / 1/100.

There is also judicial practice confirming this position, for example, the decision of the Federal Antimonopoly Service of the Moscow District dated September 1, 2008 No. KA-A40 / 8012-08. According to the court, a taxpayer transferring property for gratuitous use cannot apply the benefit under sub. 11 p. 1 art. 251 of the Tax Code of the Russian Federation.

The person who contributed to the property of the company did not fully pay his share (share)

Non-payment of a share in the authorized capital of an LLC does not affect the application of the tax benefit subpara. 11 p. 1 art. 251 of the Tax Code of the Russian Federation. This is confirmed by multiple case law. Thus, the arbitral tribunal noted that “Art. 251 signatures 11 clause 1 of the Tax Code of the Russian Federation connects the right to a benefit not with the amount of the actually contributed authorized capital, but with the share of the receiving party in the authorized capital of the transferring party, which must be at least 50% and does not require full payment of the authorized capital at the time the benefits are presented "(decree Federal Antimonopoly Service of the Moscow District dated June 15, 2006 No. КА-А41/5286-06).

But if the share (share) is not paid within a year from the date of registration of the company, the ownership of it will pass to the company. And in this case, there will be completely different consequences.

The person who contributed to the property of the company withdrew from the membership

Withdrawal of the transferor from the participants during the year does not affect the application of the tax benefit subpara. 11 p. 1 art. 251 of the Tax Code of the Russian Federation. This is confirmed by the conclusion contained in the resolution of the Federal Antimonopoly Service of the Far Eastern District dated December 30, 2005 No. Ф03-А73 / 05-2 / 4367. The court concluded that the withdrawal of an individual before the end of the year from the founders of the company does not change the legal status of these funds as received free of charge and not subject to accounting as income when determining the taxable base for income tax.

VAT when making a contribution to the company's property

An analysis of the legislation on the subject of whether operations on contributions to the company's property in cash are subject to VAT allows us to make a reasonable conclusion that there is no obligation to pay the said tax.

The object of VAT is the sale of goods (works, services), including on a gratuitous basis (Article 146 of the Tax Code of the Russian Federation). However, money is a universal means of payment, not a product, work or service. For the purpose of taxing VAT, the transfer of funds not related to payments for goods, works or services, within the meaning of Art. 39 and 146 of the Tax Code of the Russian Federation is not recognized as a sale. Making a contribution to the property of the company is of an investment nature (subclause 4, clause 3, article 39 of the Tax Code of the Russian Federation), i.e., this is an operation that is not recognized as a sale for tax purposes.

Thus, in the case of making a contribution to the company's property in cash, the transferring party does not have an obligation to pay VAT. The receiving party also has no object of taxation (clause 3, article 153 of the Tax Code of the Russian Federation): the funds received are not related to settlements for payment for goods (works, services).

Is making a non-monetary contribution to property subject to VAT? There are two points of view on this.

The first point of view, which the author of this article also adheres to, is that the transfer of property as a participant’s contribution to the property of a subsidiary is considered as a transfer of an investment nature (subclause 4, clause 3, article 39 of the Tax Code of the Russian Federation), i.e. as a transaction not recognized as a sale for tax purposes.

Contribution to the company's property affects the increase in the size of its net assets and, consequently, the size of the net profit distributed among the participants, so we can conclude that this contribution is of an investment nature. There is a positive judicial practice confirming this position (for example, the decision of the Federal Antimonopoly Service of the Central District of February 20, 2007 in case No. A-62-3799/2006).

However, a different point of view is also expressed in the legal literature: when transferring any material assets as a contribution to property, the ownership of them passes from the participant to the company; for VAT purposes, the transfer of ownership of property (including on a gratuitous basis) is recognized as a sale. Therefore, the participant must charge VAT on the value of the property transferred to the company.

Thus, contributions to the company's property entail tax consequences in the form of taxable non-operating income, unless they are received from a parent or subsidiary organization or an individual - a majority participant or shareholder.

conclusions

Summing up, we can conclude that each of the considered methods of financing, if used correctly, taking into account the specific situation, can be beneficial. The least risky and most beneficial from the point of view of tax consequences can be called such a method of financing as payment for shares (shares) above their nominal value and gratuitous transfer of funds between parent and subsidiaries (contributions to the property of the company) subject to the conditions provided for in subpara. 11 p. 1 art. 251 of the Tax Code of the Russian Federation.

1 Federal Service for Financial Markets of the Russian Federation.

In the last issue, we talked in detail about contributions to the property of an LLC. Then we noted that since recently, not only LLC participants, but also JSC shareholders can make contributions to property. In this issue, we will tell you how shareholders can support the company by investing in property.

For more information about contributions to the property of an LLC, read the article by Alexander Rosikov “How to support an LLC with a contribution to property”

Why was change needed?

The opportunity to contribute to the property of a joint-stock company without increasing its authorized capital officially appeared on July 15, 2016. It was on this day that Federal Law No. 339-FZ of July 3, 2016 “On Amendments to the Federal Law “On Joint-Stock Companies”” came into force .

The authors of the law indicate that it expands the possibilities for JSCs to receive financial and material support from shareholders. This support is especially relevant in times of crisis. A contribution to property can become an effective tool for transferring financial resources from interested shareholders to a JSC in order to improve its economic condition (for example, to prevent bankruptcy) without increasing the authorized capital. Such contributions are usually made by shareholders - legal entities: parent or dominant companies.

The legislator draws attention to the fact that the amendments made to the Federal Law of December 26, 1995 No. 208-FZ “On Joint Stock Companies” (hereinafter referred to as the JSC Law) are fully consistent with law enforcement practice.

A bit of history

The possibility of making contributions to the property of a joint-stock company without increasing the authorized capital has been recognized by the courts for a long time. Four years ago, the Presidium of the Supreme Arbitration Court of the Russian Federation, in its decision of December 4, 2012 No. 8989/12 in case No. A28-5775 / 2011-223 / 12, indicated that economic relations between the main and subsidiary JSC are of a special nature. Therefore, the main company can make contributions to the property of the "daughter" not only during the establishment, but also at any other time. Moreover, the supreme arbitrators also allowed the possibility of a return transfer of property.

In fact, when making a contribution to property, the activities of interconnected companies are optimized. At the same time, the rights of creditors of these companies, in the opinion of the Presidium of the Supreme Arbitration Court of the Russian Federation, are not violated. Their interests are protected, in particular, by the norms of bankruptcy law (transactions made on the eve of bankruptcy can be challenged) and the responsibility of persons entitled to give the company mandatory instructions.

New article

So, from July 15, 2016, the JSC Law was supplemented with a new article 32.2 "Contributions to the property of the company that do not increase the authorized capital of the company." In accordance with it, shareholders, in order to maintain the activities of the company, can at any time make gratuitous contributions to the property of the JSC, which do not increase the authorized capital and do not change the nominal value of the shares. Such contributions can be made both in money and other property. The main thing is that the property belongs to the types specified in Art. 66.1 of the Civil Code of the Russian Federation.

Document Fragment

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Paragraph 1 of Art. 66.1. Civil Code of the Russian Federation

The contribution of a participant in a business partnership or company to its property may be cash, things, shares (shares) in the authorized (share) capital of other business partnerships and companies, state and municipal bonds. Such a contribution may also be exclusive, other intellectual rights and rights under license agreements subject to monetary value, unless otherwise provided by law.

It is important to note that when making a contribution to property, the rules on interested party transactions (Chapter XI of the JSC Law) do not apply. This is stated in the new para. 9 p. 2 art. 81 of the JSC Law. However, you still have to receive the “go-ahead” for making a contribution to the property. But more on that below.

The focus is on the contract

The contributions must be transferred on the basis of an agreement concluded between the shareholder and the company. This agreement does not provide for any counter-provision by AO. But it cannot be considered a donation agreement. The Presidium of the Supreme Arbitration Court of the Russian Federation in the already mentioned decision of 04.12.2012 No. 8989/12 in case No. A28-5775 / 2011-223 / 12 explained this by the peculiarities of the relationship between “mother” and “daughter”, which from an economic point of view constitute a single economic entity.

Nevertheless, Rosreestr, until recently, could qualify a shareholder's contribution to the company's property as a donation and refuse to register the right (if it is subject to registration). The argument given by Rosreestr's specialists is extremely simple: donations are prohibited in relations between companies (subclause 4, clause 1, article 575 of the Civil Code of the Russian Federation). And then the shareholder had to prove his case in court (see, for example, the decision of the Arbitration Court of the Central District dated March 2, 2016 No. F10-116 / 2016 in case No. A14-7898 / 2015).

Now such disputes should not arise. In para. 3 p. 1 art. 32.2 of the JSC Law expressly states that the norms on donation (Chapter 32 of the Civil Code of the Russian Federation) do not apply to an agreement on making a contribution to the property of a JSC.

A sample contract is shown in the Example.

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As a general rule, an agreement on the basis of which a shareholder makes a contribution to the property of a JSC must be preliminarily approved by a decision of the board of directors (supervisory board). It turns out that in order to make a contribution, it is necessary, firstly, the desire of the shareholder himself, and secondly, the preliminary approval of the transaction. However, this statement is true only for public JSCs. But for non-public companies Art. 32.2 of the JSC Law provides for special rules.

For your information

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Those joint-stock companies are non-public, whose shares (issuance securities convertible into shares) cannot be offered for purchase to an unlimited circle of persons (clause 2, article 7 of the JSC Law). Previously, non-public JSCs were called CJSCs.

Deposits and property of non-public JSCs

Let's say right away that special rules for making contributions to the property of a non-public joint-stock company apply only if they are provided for by the company's charter. If the charter does not contain any special provisions on making contributions to property, then the shareholder simply concludes a pre-approved agreement on making a contribution with the company.

First, the charter of a non-public JSC may provide that, by decision of the general meeting, shareholders obliged to make a contribution to property, as well as the procedure, terms and grounds for making a contribution. The decision on "forced" contributions must be made unanimously (paragraph 2, clause 3, article 32.2 of the JSC Law).

If a shareholder does not comply with the decision of the general meeting, then another shareholder or a non-public joint-stock company itself can, through the court, oblige the “deviator” to make a contribution to the property (clause 4, article 32.2 of the JSC Law).

Secondly, the charter can stipulate that, by decision of the general meeting, it is allowed to impose the obligation to make a contribution only on the owners of a certain category of shares. Such a decision is considered to be adopted if two conditions are simultaneously met (paragraph 3, clause 3, article 32.2 of the JSC Law):

• the decision received at least three-quarters of the votes of the shareholders participating in the general meeting;
• the decision was unanimously supported by all shareholders, who will be required to make contributions.

Thirdly, the charter may provide for various restrictions related to making contributions to the property of a non-public company (clause 2, article 32.2 of the JSC Law). A classic example is limiting the maximum value of contributions made by all or certain shareholders.

In all three cases, contributions are made:

• in proportion to the shares of shareholders in the authorized capital of the company. However, a disproportionate distribution can be fixed in the charter (paragraph 4, clause 3, article 32.2 of the JSC Law);
• money. Making contributions in another form may be fixed in the charter or in the decision of the general meeting of shareholders (paragraph 5, clause 3, article 32.2 of the JSC Law).

For your information

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The obligation to contribute to the property of a non-public joint-stock company is assigned to those persons who were shareholders on the date of the adoption of the relevant decision (paragraph 6, clause 3, article 32.2 of the JSC Law). Therefore, a person who subsequently ceased to be a shareholder is not released from the obligation to contribute to the property.

Taxation

In the explanatory note, the authors of the amendments to the JSC Law propose to be guided by subpara. 11 p. 1 art. 251 of the Tax Code of the Russian Federation. It says that when determining the income tax base, income in the form of property (including money) received free of charge from:

• mothers or daughters. To determine “motherhood”, the criterion of owning more than half of the authorized capital is used;
• "physicist", owning more than 50% of the authorized capital.

The main thing is that the received property (money not counted) should not be transferred to third parties during the year.

However, this point of view is debatable. In our opinion, in this case, another rule should apply - sub. 3.4 p. 1 art. 251 of the Tax Code of the Russian Federation. In accordance with it, the tax base does not include income in the form of the value of property (property rights) that a shareholder transfers to a company to increase net assets. The validity of this approach is confirmed by the letters of the Ministry of Finance of Russia (No. 03-03-06/1/71620 of 08.12.2015, No. 03-03-06/2/53555 of 17.09.2015 and No. 03-03-06/1 of 20.04.2011 /257) and the Federal Tax Service of Russia (dated November 22, 2012 No. ED-4-3/19653). At the same time, the size of the shareholder's share and the period during which the company will own the received property do not matter.

Any of the founders of a limited liability company, and since the summer of 2016, any shareholder of a JSC, can contribute additional funds to the property fund of the organization. Thus, you can finance your company for free. If you correctly execute this operation, you can carry out it in such a way that it will not grow, which means that it will not be necessary to redistribute the shares of participants or change the value of shares.

Let's get acquainted in more detail with the possibility of making such a contribution, its legal justification, correct accounting and tax consequences.

What do the laws say?

Federal legislation allows making gratuitous contributions to property assets, while not affecting the amount of authorized capital. At first, such a right was valid only in relation to LLC: according to Art. 27 of the Federal Law of February 8, 1998 No. 14-FZ "On Limited Liability Companies", the right of investors to contribute funds to the fund of the company is not limited.

Since mid-summer 2016, this possibility has been legally extended to joint-stock companies: Federal Law No. 339-FZ dated July 03, 2016, which entered into force on July 15, made appropriate changes to the previously valid regulatory act.

Features of a gratuitous contribution from the founder

Why should participants contribute funds to the company without increasing their share and authorized capital? Such funding is designed to solve several problems at the same time:

• increase the net assets of the organization;
• add additional to working capital;
• acquire the necessary tangible or other property;
• improve the reporting indicators on the balance sheet.

Unless otherwise provided in the Articles of Association, capital shall be contributed in cash. The law does not prohibit prescribing in the statutory documents permission to make a contribution in any form, such as:

• movable property;
• things;
• real estate objects;
• share in the authorized capital of another organization;
• shares of any other company;
• securities;
• intangible assets (exclusive rights, licenses, patents, etc.).

IMPORTANT! The obligation of such contributions is regulated solely by the decision of the founders and is included in the statutory documents.

Options for the legal recognition of transferred property

The founder, especially if he is also a legal entity, transferring property to the foundation of the organization free of charge, must correctly reflect this operation in his accounting documents. It is impossible to recognize such an act as a donation procedure, since its size, as a rule, exceeds the limits allowed for donation between organizations. In order for the ban on donation between legal entities, justified in paragraph 1. Art. 575 of the Civil Code of the Russian Federation, has not been violated, the contribution of participants to the LLC should be considered as:

• investment deal;
• generally accepted implementation.

FOR YOUR INFORMATION! In both cases, the contribution of property is considered a gratuitous transfer, therefore these funds are neither an expense of the transferring party, nor an income of the receiving party.

Transactions of the gratuitous transfer of property according to accounting

On the balance sheet, the procedure for the gratuitous return and acceptance of property assets is carried out in accordance with paragraph 11 of PBU 10/99 "Organization's expenses", Instructions for the application of the Chart of Accounts and Letter of the Ministry of Finance of Russia dated January 29, 2008 No. 07-05-06 / 18.

Sending side postings:

• if a contribution is made in the form of cash: debit 91-2 “Other expenses”, credit 50 or 51 “Long-term loans” or 51 “Settlement accounts”, the content of the transaction indicates that a cash deposit is reflected;
• if materials, goods, etc. are transferred to the property: debit 91-2 “Other expenses”, credit 10 “Fixed assets”, 40 “Authorized capital” or 41 “Share capital”, the content of the transaction is a reflection of the transfer of non-monetary contributions;
• if any property is transferred: debit 01 “Fixed assets” (disposal), 02 “Depreciation of fixed assets” or 91-2 “Other expenses”, credit 01 “Fixed assets” (operation), 01 “Disposal of fixed assets”, a recorded transaction is a write-off of the initial cost of a fixed asset accrued on it, or a transfer of a non-monetary contribution.

Receiving Party Postings(depending on whether value added tax was charged):

• if the receipt of property was considered as a sale: debit 91-2 “Other expenses”, credit 68 “Calculations on taxes and fees”, the transaction for calculating VAT is reflected when making a contribution in non-monetary form;
• if the deposit was considered as an investment transaction: debit 91-2 “Other expenses”, credit 68 “Calculations on taxes and fees”, the recovery of VAT accepted for deduction is reflected;
• if the contribution was made in cash: debit 75 “Settlements with founders”, credit 83 “Additional capital”, an operation to reflect a cash contribution to the property of a subsidiary; debit 50 or 51, credit 75, receipt from the participant as a contribution to the property of funds;
• when making goods or materials: debit 75 “Settlements with the founders”, credit 83 “Additional capital”, making a non-monetary contribution; debit 10 “Fixed assets” or 41 “Share capital” - receipt of a non-monetary contribution from the participant;
• upon receipt of a fixed asset: debit 75 “Settlements with founders”, credit 83 “Additional capital”, making a non-monetary contribution; debit 08-4 “Investment in non-current assets, acquisition of fixed assets”, credit 75 “Settlements with founders” - receipt from the founder of a fixed asset as a property contribution.

NOTE! If the contribution was made not in cash, but in property form, then the party that received it will not be able to deduct this contribution.

Reflection of a gratuitous contribution in tax accounting

As a result of making gratuitous contributions by the founders, the tax burden is somewhat reduced if it is made for the sake of increasing net assets. In all other cases, the contribution affects the tax accounting of the receiving party (changes the composition of the shares of the founders).

Tax consequences for the giving party

income tax will not be taken into account, since from the point of view of taxation, the transferred property is not profit, and therefore, expenses and costs associated with its transfer are not recognized (clause 16, article 270 of the Tax Code of the Russian Federation).

can be considered in two ways:

• if funds are transferred, or the procedure is regarded as a sale, VAT must be charged, since the object of the transaction is available (letter of the Ministry of Finance of July 15, 2013 No. 03-07-14 / 27452);
• if the transfer is considered as an investment transaction, there is no need to charge VAT, since there is no object of taxation itself (clause 1, clause 2, article 146 of the Tax Code of the Russian Federation, clause 4, clause 3, article 39 of the Tax Code of the Russian Federation).

Tax implications for the host

income tax is also not accepted for accrual, since, according to the law, the organization did not receive any taxable income. The law does not put forward additional conditions that are obligatory for the receiving party to comply with (such as the amount of participation in the capital, the particulars of the disposal of the property received, etc.).

Nuances can arise only in connection with the depreciation of fixed assets received as such contributions. The received property should be valued at the market value at the time of making the contribution, but not lower than the balance sheet value of the transferring party, and then depreciated (this is allowed by letters of the Ministry of Finance of Russia dated 28.04.09 No. 03-03-06 / 1/283 and dated 05.12.08 No. 03 -03-06/1/674). Depreciation premium is prohibited.

If subsequently the property received needs to be written off or sold, their value will need to be included in tax expenses (clause 2 clause 1 article 268 of the Tax Code of the Russian Federation), since from the moment of transfer the contribution becomes the property of the organization that accepted it.

value added tax will not be accepted for deduction, since it cannot be restored by the party that transferred the contribution. There are no special provisions for VAT deduction in the case of gratuitous deposits in the tax legislation of the Russian Federation.

Sometimes it happens that the owners of a limited liability company (LLC) or shareholders of joint-stock companies (JSC) want to supplement the authorized capital of the company. There is a possibility for this. Moreover, if the procedure is carried out correctly, then the introduction of property into the authorized capital of the LLC will not entail an increase in the authorized capital of the company. And this, in turn, will help to avoid additional formalities in the form of a redistribution of the shares of each of the participants or a change in the value of the JSC shares.

Legislative basis

Based on the information contained in Article 27 No. 14-FZ, it follows that contributions on a gratuitous basis, to the property of an LLC, do not affect the total mass of the organization's authorized capital. For some time now, this law has been amended accordingly and it began to apply also to joint-stock companies.

Nuances of making additional deposits

First of all, let's figure out why the participants make a contribution to the property of an LLC without increasing the authorized capital, if this does not increase their share and the authorized capital as a whole. Such an event can help in solving several issues.

1. An increase in the firm's net assets.
2. Increasing the working capital of the company.
3. Assist in the acquisition of company property.
4. Improvement of balance indicators.

When drawing up the charter of an LLC or JSC, it is worth considering the possibility of contributing funds both in monetary terms and in material form. In the form of a material contribution can be:

• real estate;
• auto and motorcycle equipment;
• household appliances and computers;
• share in the authorized capital of another company;
• shares and securities.

Legitimacy of the deposit

It’s so simple, you can’t take and donate anything to the company, especially if the one who contributes additional capital is not an individual. This is due to the fact that there is a certain limit on "gifts" between organizations, which is established by Article 575 of the Civil Code. So how to contribute property to the authorized capital of an LLC so as not to violate the law? To do this, the contribution must be made as follows:

• investment deal;
• generally accepted implementation.

With any of the above methods of registration, the transaction will be free of charge and will not affect the authorized capital of the company.

Features of accounting for the contributed property

In the sense of accounting, it is necessary to carry out the return and acceptance of assets in the form of property in accordance with various letters and instructions from the Ministry of Finance of Russia. In accordance with these documents, the one who gives away property must take into account the fact of giving away in a special way, and the receiving party must reflect in its accounting documents the fact of accepting property or funds on the balance sheet.

It should be noted that if property is contributed, and not cash, then the VAT deduction is not allowed.

Tax reflection of the fact of acceptance

In the tax return, the fact of receiving and giving away property or money, of course, will be reflected differently. Let's take a closer look at how the transfer affects the taxes of both parties.

Read also: How to rent a land plot from the city administration

Giving side

Property or funds that are transferred will not be taken into account when calculating income tax. This is due to the fact that such an operation does not entail making a profit.

Value Added Tax (VAT) may be paid if the transaction is registered as a sale. If everything is carried out as an investment transaction, then VAT is not paid.

The host

Oddly enough, but for the receiving party, income tax will be paid in the same way without taking into account this property or cash. This is due to the fact that in fact the organization did not receive any income. The only difficulty that may arise for the receiving party is related to the subsequent accounting for depreciation if any property is accepted. In order to avoid difficulties, it is necessary to carry out a market valuation of the property when accepting it on the balance sheet. If in the future it is planned to sell the property contributed to the authorized capital of the LLC, then the cost will need to be included in the tax return.

Transfer-acceptance act

In order to correctly accept property on the balance sheet, it is necessary to draw up an act of acceptance and transfer. A sample act of acceptance and transfer of property to the authorized capital of an LLC is given below.