Joint business how to organize. How to open one IP for two? Four implementation options. Freedom of contract and its limits clarified

25.04.2020

Business owners are exactly the people who are supposed to control the development of achievement of results by those who work in their company. In the meantime, there are things they need to learn on their own.

Experience shows that one of the key roles in the successful and long-term development entrepreneurial activity play an effective relationship between the owners.

Almost every experienced business owner, after several years of working in his own business, very often says the phrase: “What a pity that I did not know this before.”

I often said the same phrase, because I have been in business for 17 years, and I have a lot of practical experience not just in owning a business, but in owning on a partnership basis. The ideal option for starting your own business is sole proprietorship of the business. If you are able to create your own business, manage and own it yourself, then do not take partners. If not, co-founders will be needed. Why can a business have multiple co-founders?

The most common options are:

common business idea among friends (acquaintances, relatives);
the one who came up with the business idea does not have the necessary money or there is not enough of it;
invitation of a specialist, without which the implementation of a business idea is impossible;
the one who came up with the business idea has no experience in running his own entrepreneurial activity.

Investor partner. An investor with money or technology (equipment) is a co-founder, but does not work in the business. Performs one role in the business - the owner. Such an owner is considered ineffective. If it is possible to take money at interest and not introduce the investor into the ownership, this is the best option.

Specialist Partner. The most common options for joining co-founders are a common business idea or an invitation to a specialist, without which your activity is basically impossible. But if he is not interested in developing as a business owner, and he will simply play the role of a good, conscientious professional employee, it is better to give him a certain percentage of the profit and not introduce him into the owners.

Professional Partner- has a successful experience in owning and managing a business - the best of all partnership options. It is better to enter a professional partner as a “junior” partner, for example, with a participation share: he has 60% (70%), you have 40% (30%).

Conclusion: your business partner must be interested in their own development as a professional owner, otherwise it will be difficult to make joint decisions, especially when the company reaches a certain level of development and profitability.

No matter who you do business with, there is always a period of contention. Only this is how this dispute will end: the breakup of a family, a quarrel between two best friends, the loss of invested money, lost profits, or the resolution of a controversial issue.

Do not repeat the mistakes of most other owners. Even if you have already started doing business with a partner, it is never too late to sit down and discuss all the key issues that, in my opinion, must be not only discussed, but also prescribed.

Analyze whether you need a partner at all, and only after that decide “with whom” and “for what”. Both of these are very important.

Basic rules that you need to know when starting a joint business.

Rule One: There must be one main owner. It makes sense to enter your first business as a junior partner co-founded with an experienced main owner whose leadership style you like and whose success is aligned with your goals. As a rule, the main owner is appointed by the general director.

Rule Two A: A stake in a business does not make the co-founder the real owner of the business. Being a business owner is a profession, and quite a difficult one at that. Even short-term financial success does not mean that the owner is a professional. To achieve long-term success in business, the profession of "owner of a business" must be learned. The owner must have a self-development plan.

Rule Three: owning a business and working in a business are two different types activities that must be paid separately. Dividends are paid for a share in a business. The total amount of dividends is divided among the co-founders in proportion to the size of their shares. For work within the business, a salary and other incentives are paid. Salaries, rules for calculating dividends and payments are agreed between partners under the signature of all parties.

Rule Four A: Owners must be efficient. The inclusion of an effective co-founder in the business increases the income from this business for all partners. And vice versa, if the introduction of a new co-founder into the business does not increase the income of partners, it cannot be considered effective and there is no economic sense in its participation.

Rule Five A: business finances must be transparent to partners. Money is a very delicate matter. Nothing ruins a relationship like a disagreement over money. It is bad when the business is unprofitable and disagreements arise due to financial losses. But relationships are no less undermined when the business becomes profitable: many partnerships die just because of the sharing of income. One of the biggest mistakes is when business finances are not transparent to partners. What is the right thing to do in this situation?

If the general director is one of the owners, then the other owner must be the financial director. In the early years of business development, it is necessary to hold meetings of owners at least once a month. For these meetings, it is mandatory to prepare current financial statements for key indicators which are approved separately. The CFO (or whoever is in charge of finance) is the person with the greatest stake in maintaining transparent financial (management) records from the outset and reporting regularly on financial matters to partners.

Rule six: the level of business development will always correspond to the level of development of the professionalism of the owners and the level of responsibility assumed. The mindset of a business owner is different from that of an employee professional employee First of all, the degree of responsibility. The business owner is responsible not only for himself, but also for other people, those who work for him. Without assuming this responsibility, it is impossible to become a true business owner.

Rule Seven: before the beginning joint work there must be a written agreement on the intentions, goals and principles of interaction.

The very first and biggest problem is the lack of a written agreement between the owners on key business issues. Often, entrepreneurs start working, set business goals for themselves, consciously not understanding their personal goals, their position in the development of the company and do not coordinate it with their co-founders.

As soon as you and your partner have made a preliminary decision that you are entering into a common cause together, you immediately need to agree in writing on key issues of interaction.

Key issues to be included in the agreement:

about intentions and goals joint management business - to agree on the level of personal goals as the basis for the formation of goals in business;
about legal status companies;
on the distribution of shares in the business between the owners - respectively, on liability within the share of participation both for profit and for losses;
on financial policy and on the main financial guidelines of the business: type of capital, profit distribution policy, policy in case of unplanned losses, level of financial reporting by key indicators;
about the attitude to risk: what degree of risk is acceptable, what is not;
on the distribution of functional responsibilities: approve functional responsibilities, level wages, the degree of responsibility based on key indicators;
about the decision-making mechanism: which decisions are made by 100% consensus, for which decisions each owner is responsible;
about the mechanism of entry and exit from the business;
on the participation of the owner in other businesses;
on the establishment of a council of owners;
on the need to establish a supervisory board.

Think through each of these questions, what additional questions do you have for each item that is worth negotiating? Discuss everything in detail with your partners. Write down all these points, agree on the answers to these questions, sign the agreement received.

Partners should have the same views on tactical and strategic development enterprises, ways and tools of doing business, and relationships should be based on mutual trust and respect. Otherwise, working together will look like a competition and a race for the most profit. What to focus on When opening a joint business, you should definitely contact a professional and draw up a partnership agreement, which will indicate all the existing and possible nuances: the amount of investment of personal funds of each partner at the start of business, their responsibilities, work schedule, what part of the profit will be invested into business, and which one is considered net profit. It is necessary to decide how to get out of disputable situations and outline all the subtleties of exiting the business of one of the partners.

Joint business: all the pros and cons that must be weighed before opening

Both in marriage and in a joint business, at first, relationships are built on the mutual trust of partners, and in the future they may end in claims, litigation and, as a result, a break. Even in the case of a fair division of profits when doing business, when the partnership is broken, one of the players is “overboard”. Therefore, it is necessary to plan a joint business with extreme caution and consider a potential partner through the prism.

Need a partner! The benefits of a joint business. Many entrepreneurs think about the dilemma of starting a business on their own or with a partner. There are several reasons for this. The most global of them is the financial component. Lack of money cut down a lot of great ideas business.

After all, the launch and promotion of entrepreneurial activities often require investments greater than those that the entrepreneur has.

Is it worth starting a joint business?

All principles are important, that's why they are principles, each of them requires a deep understanding and examples from practice. Stay tuned for further information, for each of these principles I will give examples from practice and give recommendations on how to proceed in certain cases and the answers to what questions need to be discussed in order to sign agreements with a partner on the principles of joint work. Comment: some of the materials on this topic are taken from Konstantin Baksht's book "How to ruin your own business", edition "Peter", 2008.
I love this book and other books by Konstantin Baksht very much, I absolutely agree with its author, I recommend it for reading and understanding.

Joint business. is there a risk?

Let us make a reservation right away that neither the Civil Code of the Russian Federation nor the Federal Law “On Companies with limited liability» dated 08.02.1998 No. 14-FZ do not provide for the need to draw up and sign such a document. Moreover, from 07/01/2008 the only constituent document of a limited liability company is the charter. Both the Civil Code and the aforementioned Federal Law exclude the mention of the memorandum of association.

However, paragraph 1 of Art. 89 of the Civil Code and paragraph 5 of Art. 11 of the Federal Law “On Limited Liability Companies”, oblige the participants of an LLC to conclude an agreement in writing on the establishment of a company, which determines the procedure for their joint activities to establish a company, the size of the authorized capital of the company, the size and nominal value of the share of each of the founders of the company, as well as the size , procedure and terms of payment of such shares in the authorized capital of the company.

Possible conditions for doing joint business???

It is very difficult for one to bear all the expenses, and sometimes it is simply impossible. When business is run by several partners, there is an opportunity to invest the knowledge and experience of each partner, there are more options for getting out of difficult situations. No wonder there is a proverb "One head is good, but two is better."

Attention

The power of one person is not unlimited, especially when it comes to intensive, highly productive work to promote a business. Together with a partner, you can do much more. When one of the partners needs rest, the second will take over his part of the responsibilities to achieve a common goal. Another advantage of joint business is the presence of twice as many different kinds of connections in various structures that may come in handy.

Double optimism, enthusiasm and purposefulness help to overcome all difficulties on the way of business development and establishment.

Eight principles to follow if you are doing business with a partner

And vice versa, if the introduction of a new co-founder into the business does not increase the income of partners, it cannot be considered effective, and there is no economic sense in his participation. The fifth principle: there should be one main owner. It makes sense to enter your first business as a junior co-founder with an experienced main owner whose leadership style and business success you enjoy. Working with such a co-founder will provide invaluable experience.

Sixth principle: business finances must be transparent to partners. Nothing destroys a relationship more than regular friction over money. It is bad when the business is unprofitable and disagreements arise due to financial losses.

But no less relationships are undermined when the business becomes profitable: many partnerships die just because of the division of income.

Joint business: how to build relationships

You have to choose what is more important; and if relationships with loved ones are really important, then it is better to keep them and not mix them with business ones. When choosing a partner, everything must be taken into account: his reputation, business and personal qualities; the impression of future partners from each other will be important - it should be mutual sympathy. A different attitude will inevitably become an obstacle to business.

Info

Shares in business. Very often, business partners stop at the 50/50 option, rightly believing that two adults with the same capital can be equal in business. However, practice shows that such a decision often turns into problems for the company. During the work, it turns out that each of the partners has his own view on resolving issues, their tactics are different, and so on.

And they are increasingly unable to agree, as each insists on his point of view.

Joint business: options for opening an IP

A guarantee against possible conflicts and hostile actions of individual participants in a limited liability company could be the provision of the charter on the unanimous adoption of such decisions by the general meeting of participants, moreover, it is advisable to indicate that the meeting is authorized to make decisions on these issues only if all participants of the company are present. The charter must be written in such a way that each of the participants in the company is clear about his rights and obligations, as well as the consequences of failure to fulfill these obligations. In order to ensure effective traffic control Money of the company, it is advisable to include provisions in the charter on the need to affix payment orders exceeding the amount established in the charter with the signatures of all participants in the company.

Joint business rules

Every entrepreneur needs a checking account to start and expand their business. As a rule, for … + Start now New business ads + Add ad Required: Saint-Petersburg Business forum discussions Ask a question on the forum Topic: How to start? creating and managing a business The created working system in the form of a business consists of the following interrelated components: 1. Technology as a working system 2. People working in the system 3. Management: 4. ... Topic: A story about why you should not do business with ... Subject: First thing Hello. I'm 18 years old and I'm passionate about starting my own business! At the same time, now I am primarily interested in the process of doing business, and not in making a profit, although this is also important for me. I …
Beginning joint business, many entrepreneurs overlook several important points on which to agree, considering them minor. Today we'll look at 7 common mistakes that can cause your joint venture to fail. At the very beginning of opening a business, future co-owners should certainly discuss the following issues: 1. Partner choice. Whom to choose for joint business is the question that every aspiring entrepreneur should think about. It is believed that the worst option to choose from are relatives and close friends. It is paradoxical, because we usually have trust in such people, which, as it seems to us, is necessary in business.
But the main danger here is that related and friendly relations in business are often destroyed.

14May

Hello! In this article we will talk about the forms of joint activity of individual entrepreneurs.

Today you will learn:

How can individual entrepreneurs unite for joint profit;
How to draw up an agreement between the participants of the activity;
when merging.

How can SPs merge?

There are several forms of such joint activity:

One works individual, and several more partners work unofficially with him;
simple partnership;
Joint work of IP and LLC.

The first case is the most unreliable and can become a reason for disagreement among the participants in a voluntary union. One individual entrepreneur has an official status, is registered with the tax authority as a taxpayer. Other allies officially cannot participate in this IP in any way, since individual entrepreneur legally includes only one individual.

It turns out that all the profit belongs to the owner of the business, and in case of any disagreement, the rest of the participants may be left with nothing.

To prevent this from happening, loan agreements are usually drawn up. Those participants who have contributed to the development of the company draw up a loan for the contributed share in relation to the IP itself. The profit received by the company is distributed among all participants in proportion to the contributions.

Most often, this form of cooperation between an individual entrepreneur and an individual occurs between close relatives. Unfamiliar faces are unlikely to decide to engage in this form of business.

At the same time, the owner of the IP is officially engaged in all the affairs of the company, he also submits reports to the tax authority. The remaining members of the union can only help in current activities.

This form of cooperation is the least common. Let's talk about other types of unions in more detail, since they are much more common in everyday life.

Create a partnership

A simple partnership is a form of association of several individual entrepreneurs. This is a beneficial cooperation that allows the parties to the agreement to pool their own resources and direct them in the right direction. Since there is more capital and property in the event of a merger, it is possible to make more big deals, which are not allowed for one IP.

When forming a partnership, each of the participants contributes its share to the development of the joint business.

She can act as:

Money;
Some property (for example, you have your own office that you want to transfer for the purposes of the partnership. This also includes cars, equipment. If you, then you also have the right to offer it to the newly-made union for profit purposes);
Useful acquaintances (if there are influential people in your environment who can contribute to development, feel free to tell the new partnership about it);
Skills and knowledge (do you know the algorithms for compiling accounting entries or are you well versed in vehicle repair? Then you can apply your skills for their intended purpose).

All profits that the IP association receives are distributed among the participants within the limits of their initial contributions. This means that the resulting profit is immediately divided by the number of participants.

Depending on what condition for the distribution of income will be spelled out in the agreement between the allies, the profit can be divided equally or within the agreed limits.

If the partnership for some period of time worked at a loss, then it will be distributed among the participants proportionally. That is, each partner risks his own property within the limits of his contribution.

Each member of an association consisting of several individual entrepreneurs has the right to represent the interests of the partnership. He can conduct transactions, appear in court or make purchases of goods.

IP joint activity agreement

This agreement is a simple partnership agreement, you can use it and modify it to suit your needs.

Download contract

We open LLC

Several IPs (at least two) can. This is a more serious and responsible form of pooling your own contributions. is liable only for the property of the company. Personal real estate, vehicles, money and other property do not participate in the life of the association.

When creating an LLC, a constituent assembly of participants appears. It also accompanies the activities of society throughout the entire time of existence. Any decision is made only by such a meeting.

As a result of the meeting of all the founders, a certain decision is made, which is entered in. This document is stored in the organization and may be required for both the tax authority and banking institutions.

All possible activities of two or more individual entrepreneurs in the created society are specified in. Here the association itself is prescribed. By law, it cannot be less than 10,000 rubles. An LLC can have up to 50 members.

The work of the society is built on the common contributions of the participants. Unlike IP, and. Ltd. is considered the most reliable partner on transactions, and therefore he is trusted by a significant number of counterparties than individual entrepreneurs.

Opening and maintaining an LLC is a rather costly process. However, this form of association allows you to expand the boundaries own business and reach a higher level. It makes sense to create an LLC if there are several applicants and they are going to conduct large-scale production.

Can sole proprietors and LLCs interact?

There are frequent cases when an alliance is concluded between an individual entrepreneur and society. Let's say you are an entrepreneur on favorable terms, but you understand that running a business on your own is becoming burdensome for you.

If you have familiar founders from an LLC who can use your premises, then drawing up an agreement will be beneficial to both.

Joint activities of IP and LLC are accompanied by the conclusion of an agreement for a specific period of validity. In this case, the IP acts as a partner of the LLC and has the right to profit from joint activities. This form of cooperation will be in the nature of a simple partnership. In the considered case, the IP contributes its right to rent as a share.

The agreement between the members of the union outlines all parties to the transaction and highlights the profit of each member. Such an alliance has a beneficial effect on the development of IP. If you interact with an LLC as an individual entrepreneur, then your business will go uphill in case of favorable events.

We take into account the nuances in the agreement

In any form of joint activity of an individual entrepreneur, it is necessary to competently conclude an agreement between the participants of the union. Mandatory indication of even the most insignificant conditions will avoid difficulties in further activities and clearly delineate the scope of rights and obligations of all partners.

The agreement must include:

The volume and content of the share of each participant (it is necessary to indicate the contribution of partners and the percentage that it makes up of the common property (future profit) of the partnership);
A clause stating that the contributions made are joint shared property;
Ways to cover losses by each participant;
Contract term;
Responsibility of the parties (you can include a line indicating that if the partnership incurs losses due to the unsuccessful actions of one of the participants, then the latter will cover the costs);
The rights and obligations of each business partner;
Item about respect for the property of the association.

The rights of members of an association usually include:

Free access to the property of participants;
Familiarization with financial statements;
Carrying out transactions on behalf of the partnership;
Getting income.

Reporting to the tax

If several individual entrepreneurs are combined into a simple partnership, then it is necessary to take into account in reporting financial flows such a partnership and the movement of capital, affecting only a specific individual entrepreneur.

This is reflected in the income and expense ledger. It must be managed in such a way that reporting year it was clear which flows belong to joint activities, and which ones appear in the activities of the IP itself.

Moreover, each member of the association will have its own book. General reporting is not allowed.

This is important for a possible audit from the tax authorities. If there are any inaccuracies or discrepancies in the book, you will need to provide supporting documents. If there are none, then penalties will be applied to entrepreneurs, additional tax payable and, accordingly, penalties for late payment will be charged.

For those entrepreneurs who practice, the creation of a partnership is not allowed by law. The same applies to those who apply "Income" with a tax of 6% of profits.

Such restrictions are connected with fraud among entrepreneurs in the past. Individual entrepreneurs deliberately underestimated their own income and paid minimal taxes to the country's budget.

Paying is also important to consider. Those individual entrepreneurs that are on the simplified tax system, as a rule, do not pay VAT. However, when concluding an IP agreement with an LLC, you need to be careful.

Above, we described the case when an individual entrepreneur rents premises and is ready to enter into an agreement with an LLC. The individual entrepreneur himself should not pay VAT on rent, but when concluding an alliance, the individual entrepreneur must continue to manage the lease. Otherwise, the tax authorities may regard this fact as a sublease, for which you will have to pay VAT.

Many entrepreneurs create businesses with partners who share common goals and visions. However, the initial atmosphere of mutual understanding in the future, as the business develops, can develop into a conflict. Further discord can lead to more serious consequences, for example, attempts by one of the partners to take over the business by raider. And here all the legal mistakes made during the registration of the partnership come up. What are the typical mistakes?

1. Business is registered in the name of authorized persons. Trusted persons are relatives or friends of partners. This usually happens when partners do not want to officially shine as business owners for various reasons. Relatives seem to be an absolutely reliable option, but in fact, a sister or nephew can start an independent game, making decisions not in the interests of the beneficiaries.

If the business is registered with friends, then there is a risk of losing business - customers, contracts and assets. Another risk is bringing the owners to criminal liability, since the formation or reorganization of a legal entity through nominees and the provision of information about them to the tax office (which leads to the entry of false data into the Unified State Register of Legal Entities) is punishable under Part 1 of Art. 173.1 of the Criminal Code.

2. The business is registered in the name of one of the partners or is run by him as a general director. Often one of the owners is more energetic, enterprising, more savvy in doing business than the other. It happens that one of the co-founders does not want to deal with the corporate routine (signing documents, making difficult decisions), he is only interested in making a profit. As a result, the business is registered legally for only one of the partners. In the event of a conflict, he initially finds himself in a more advantageous situation. The second owner does not have serious legal leverage on his partner, so the chances of getting the property or money due to the court tend to zero.

If one of the partners becomes a general director with unlimited powers, then this can also lead to adverse consequences for the second. The production company sued for damages against the former to CEO. It turned out that he created a parallel business: he took important clients to another company that was engaged in a similar activity, where he was also on leadership position. As a result of his illegal activities, the company and his partner suffered damage of 1 billion rubles.

3. Shares in the business are distributed equally among the partners. In this case, in the event of a corporate conflict, the company's activities will actually be paralyzed, since each of the partners will block the decisions of the other. This situation is called deadlock. The co-owner can solve the problem through the court by filing a lawsuit to exclude another co-owner. But this is not the easiest way out, because the other side is filing a similar counterclaim. Supreme Court pointed out that in order to exclude a participant from the list of founders, it is necessary to prove that he grossly violated his duties or interfered with the activities of the company.

4. The scheme of distribution of future profits is not fixed. This is the most common cause of discord between partners. By general rule net profit is distributed in proportion to the shares of participants in the authorized capital, but in practice the agreements are different.

How to avoid conflicts?

When creating a JSC or LLC, partners must conclude an agreement on the establishment of a company. It should regulate the activities of the founders. This is not a founding document, but an agreement on joint activities. In the agreement on the establishment of the company, the partners may provide for certain conditions that exclude conflicts, for example, at the initial stage. It may contain provisions on the liability of the founders (forfeit, fine, penalties) in case of non-payment of a share in the authorized capital; the procedure for distributing the costs associated with the creation of a company; the procedure for settling any disagreements that may arise in the process of establishing a company.

Partners can sign a corporate agreement (on the exercise of the rights of LLC participants or a shareholder agreement for JSC). In it, the parties undertake to exercise their rights in a certain way or even waive their exercise. For example, to vote in a certain way at a general meeting of participants; acquire or sell shares (shares) at a certain price or upon the occurrence of certain circumstances; refrain from selling shares (shares) until a certain point, etc.

A corporate agreement is especially useful when both partners have an equal number of shares (shares). It can provide for various options for the development of the conflict and model ways to resolve it, as well as establish the responsibility of each of the parties for violation of the adopted provisions.

If the partners are individual entrepreneurs, then they can conclude a simple partnership agreement. In it, they undertake to combine their contributions and work together to make a profit. In this case, a legal entity is not formed. The contribution under the law can be anything: money, property, professional and other knowledge, skills, abilities, business reputation, business connections. However, the contract must specify the cost of contributions; ownership of the contributed property and income received; the procedure for the use of common property; the obligations of partners in maintaining common property and the reimbursement of expenses associated with it; order of conducting common affairs; procedure for covering expenses and losses.

The advantage of a simple partnership is that its participants can choose convenient rules for joint activities. Minus - the impossibility of applying to it a preferential taxation regime - a single tax on imputed income.

"Accounting in publishing and printing", 2010, N 3

To develop their business, owners often decide to create a new legal entity, but there are other opportunities for expanding activities, such as joint activities or a simple partnership agreement. Its application allows legal entities to act together to achieve a common goal without the formation of a new legal entity. This form of cooperation is very attractive from the standpoint of civil law. However, the application of this method requires special care due to the insufficient regulation of the legislation regarding the taxation of the activities of a simple partnership.

Let us consider the main issues related to the taxation of a simple partnership and the difference from the taxation of the activities of a separate legal entity.

We note right away that since a foreign organization can also be a participant in a simple partnership agreement, one should always keep in mind the need to apply the norms of international treaties of the Russian Federation (if any) with the relevant states in the field of taxation, since such agreements may provide for norms that differ from norms of the Tax Code of the Russian Federation (TC RF).

In this case, it is the norms of international treaties that are subject to application by virtue of such an indication in the Constitution of the Russian Federation and in the Tax Code of the Russian Federation.

The taxation of a newly created legal entity does not raise any special questions, however, we will dwell on its individual points before considering the procedure for taxing joint activities.

Taxation when carrying out activities through a newly created legal entity. So, in the case of organizing a joint business by two legal entities through the establishment of a new legal entity, a new subject of civil and tax legal relations arises. For the purposes of taxation, a new legal entity will be a new separate taxpayer in accordance with the norms of the Tax Code of the Russian Federation for the relevant taxes (tax regimes).

By default, a newly formed legal entity is on the general taxation system and pays the corresponding taxes in general order if there is an object of taxation and a tax base, in particular income tax, value added tax, property tax, transport tax, other taxes if there is an object of taxation; personal income tax (as a tax agent).

In view of the abolition of the unified social tax from 01.01.2010, a legal entity is also a payer of insurance premiums to the Pension Fund, the Social Insurance Fund, the Federal Compulsory Medical Insurance Fund and the territorial compulsory medical insurance funds of the Russian Federation.

The Tax Code of the Russian Federation provides for the possibility of applying special tax regimes. One of these regimes is the simplified taxation system (Chapter 26.2 of the Tax Code of the Russian Federation). The transition to it is made on a voluntary basis at the discretion of the taxpayer (clause 1 of article 346.11 of the Tax Code of the Russian Federation), but subject to its compliance with a number of established criteria (article 346.12 of the Tax Code of the Russian Federation).

In addition, taxpayers using this regime are subject to restrictions on the amount of income, namely the maximum amount of income within which the taxpayer has the right to apply the simplified taxation system (from 01.01.2010 to 12.31. in the amount of 60 million rubles, indexation of the specified amount is not provided).

The application of the simplified taxation system (clause 2 of article 364.11 of the Tax Code of the Russian Federation) provides for the release of the organization from the obligation to pay:

corporate income tax (with the exception of tax paid on income taxed at the tax rates provided for in paragraphs 3 and 4 of article 284 of the Tax Code of the Russian Federation; these rules apply to dividends, as well as income received from transactions with certain types debt obligations);
corporate property tax.

Organizations applying the simplified taxation system are not recognized as VAT payers, with the exception of the tax payable in accordance with the Tax Code of the Russian Federation when goods are imported into the customs territory of the Russian Federation, as well as the tax paid in accordance with Art. 174.1 of the Tax Code of the Russian Federation (i.e. in relation to activities carried out under a simple partnership agreement).

It should also be noted that in view of the abolition of the unified social tax from 01.01.2010 and the introduction of insurance premiums, organizations applying the simplified tax system pay insurance premiums in full (before that, only mandatory pension insurance contributions were paid). At the same time, the rate of such contributions for 2010 is 14% and will increase in 2011 to 34%.

The simplified taxation system provides for two options for the object of taxation (clause 1 of article 346.14 of the Tax Code of the Russian Federation):

income (tax rate - 6%);
income reduced by the amount of expenses (tax rate - 15%).

Thus, if the income of the newly formed organization is planned within 60 million rubles. per year, you can consider the possibility of applying the simplified tax system from the standpoint of expediency.

So, when applying the simplified tax system, an organization instead of income tax (rate of 20%, except for tax on dividends and operations with certain types of debt obligations), property tax (the rate may vary by region within 2.2% of the average annual value of property) and VAT pays a single tax at a rate of 6% or 15%, depending on the selected object.

If an organization receives dividends on the simplified tax system or income from operations with certain types of debt obligations, income tax is payable on such income at the rates established respectively by paragraphs 3 and 4 of Art. 284 of the Tax Code of the Russian Federation.

When deciding on the choice of the simplified tax system or the general taxation system, as well as the object of taxation in terms of the simplified tax system, it is necessary to take into account all restrictions, correlate planned income and expenses. In addition, it is also advisable to take into account the fact that, unlike the general taxation system (in terms of income tax), the simplified tax system provides for a closed list of expenses, which in practice often does not allow taxpayers on the simplified tax system with the object "income minus expenses" to take into account some expenses.

When distributing profits received from entrepreneurial activities by an organization between participants in the form of dividends, such incomes are subject to income tax at the tax agent (i.e. at the source of payment) in the general manner, both if the tax agent applies the general taxation system, and in case of using the USN.

Thus, when distributing profits (after paying the relevant taxes) in the form of dividends, participants will receive dividends minus a withheld income tax of 9% - for Russian organizations and 15% - for foreign organizations (in the absence of an international agreement; if there is one, it is necessary to be guided by the norms of such an agreement, the rate may differ).

It should be noted that international treaties with many states provide for reduced income tax rates for dividends, but often the rate is made dependent on the share of participation. foreign organization in the authorized capital of the company paying dividends. Therefore, at the stage of establishing a new legal entity with the participation of a foreign organization, it is advisable to take into account the norms of an international treaty, if any.

In addition, the procedure for taxation of dividends paid to a foreign organization may depend on whether it has a permanent establishment. If there is no such representative office, then the tax is withheld at the source of payment (by the paying organization), otherwise the representative office (subject to the transfer of dividends to it) must independently fulfill its obligations as a taxpayer.

Taxation in the implementation of joint activities. So, under a simple partnership agreement, two or more persons (partners) undertake to combine their contributions and act jointly without forming a legal entity to make a profit or achieve another goal that does not contradict the law (Article 1041 of the Civil Code of the Russian Federation). At the same time, only individual entrepreneurs and (or) commercial organizations can be parties to a simple partnership agreement concluded for the implementation of entrepreneurial activities.

The Tax Code of the Russian Federation contains a number of special rules providing for a special procedure for taxing transactions carried out under a simple partnership agreement. Let us consider such features in terms of individual taxes.

Features of the application of VAT. Features are provided for in Art. 174.1 of the Tax Code of the Russian Federation. Maintaining a general record of transactions subject to taxation is entrusted to the participant of the partnership, which is a Russian organization or an individual entrepreneur (hereinafter referred to as the participant of the partnership). Since a simple partnership is not recognized as a legal entity, the obligations of the taxpayer are assigned to the participant in the partnership.

It is advisable to assign such an obligation to a comrade in charge of general affairs and accounting, since it will be easier for him to organize accounting for the purpose of calculating VAT without duplicating functions.

Given that one of the participants in a joint activity may be a foreign organization, we note once again that the duties of a taxpayer and accounting for transactions are assigned to a Russian entity. A foreign organization cannot perform these duties.

A participant in a partnership, who is entrusted with the taxpayer's obligations in relation to operations on joint activities, is obliged to issue invoices in the generally established manner when selling goods (works, services), transferring property rights within the framework of activities under a simple partnership agreement.

A tax deduction under a simple partnership agreement is granted only to a participant in the partnership if there are invoices issued by sellers to this person (partner) in the generally established manner.

So, a participant acting as a taxpayer in relation to joint venture operations is obliged to calculate the tax base for taxable operations in the general manner by issuing invoices and deducting the VAT presented to him. Once again, it should be emphasized that invoices must be issued in the name of this participant in order to make a deduction. Otherwise, neither he nor other comrades will be able to accept the specified VAT for deduction. This must be taken into account when organizing the activities of a simple partnership and concluding contracts by partners as part of its implementation.

An important condition for the acceptance of VAT for deduction by a participant in a partnership is that he maintains separate accounting goods (works, services), property rights used in carrying out operations in accordance with a simple partnership agreement and used by it in carrying out other activities. Of course, the participant must also ensure the maintenance of separate accounting in the sense of Art. 170 of the Tax Code of the Russian Federation.

Since the responsibility for keeping records of transactions for the purpose of calculating VAT is assigned to one of the partners, such a partner must also submit a VAT return. Features of declaring operations related to the implementation of a simple partnership agreement, neither the Tax Code of the Russian Federation, nor others regulations do not provide. clarification tax authorities and the Ministry of Finance of Russia on this issue are absent. In view of the foregoing, the author believes that the participant of the partnership declares such operations in his ordinary declaration in the general manner, he also pays the amount of tax.

Features of the application of income tax. Features are provided for in Art. 278 of the Tax Code of the Russian Federation. If at least one of the participants in the partnership is a Russian organization or an individual who is a tax resident of the Russian Federation, the accounting of income and expenses of such a partnership for tax purposes must be carried out by the Russian participant (hereinafter referred to as the participant in the partnership), regardless of who is entrusted with managing the business of the partnership in in accordance with the agreement (clause 2, article 278 of the Tax Code of the Russian Federation).

However, the direct payment of the tax, in contrast to VAT, is carried out by each comrade (clause 3, article 278 of the Tax Code of the Russian Federation). This is implemented as follows.

A participant in the partnership determines on an accrual basis, based on the results of each reporting (tax) period, the profit of each participant in the partnership in the profit of the partnership received for the reporting (tax) period from the activities of all participants within the partnership. The calculation is carried out in proportion to the share of the relevant participant in the partnership, established by the agreements. On the amounts of income due to each partner, the participant of the partnership quarterly, before the 15th day of the month following the reporting (tax) period, informs each partner.

Each partner - taxpayer includes income received from participation in the partnership as part of his non-operating income, and such income is subject to taxation in the general manner (clause 4 of article 278 of the Tax Code of the Russian Federation).

It should be noted that Art. 278 of the Tax Code of the Russian Federation does not contain a clear definition of the concept of "income" of a participant in a simple partnership. However, based on the systematic interpretation of these rules, it can be concluded that such income includes only profit received as part of the execution of a simple partnership agreement, distributed by a partnership participant who keeps records of income and expenses. This conclusion is confirmed and judicial practice(for example, the Resolution of the Federal Antimonopoly Service of the North-Western District of March 7, 2007 in case N A42-7084 / 2005, the Far Eastern District of June 6, 2007 N F03-A59 / 07-2 / 2080).

In relation to income from joint activities, taxpayers-comrades pay only quarterly payments (clause 3 of article 286 of the Tax Code of the Russian Federation), i.e. monthly advance payments from such amounts are not paid. The procedure for filling out the declaration for this case is not regulated, therefore it seems necessary to calculate monthly advance payments and indicate them in the declaration based on the tax minus the amount of income tax payable on income from a simple partnership agreement.

For comrades, there is also a restriction on the use of the cash method. According to paragraph 4 of Art. 273 of the Tax Code of the Russian Federation, when concluding a simple partnership agreement, the participants in these agreements that determine income and expenses on a cash basis are required to switch to determining income and expenses on an accrual basis from the beginning of the tax period in which such an agreement was concluded.

A significant disadvantage of carrying out activities under a simple partnership agreement is the inability to take into account the losses of the partnership. According to paragraph 4 of Art. 278 of the Tax Code of the Russian Federation, such losses are not distributed among its participants and are not taken into account when taxing them. That is, if a legal entity that is on the general taxation system or the simplified tax system has the right to transfer the loss received in tax accounting to the future and reduce the profits of future tax periods for it within ten years (Article 283 of the Tax Code of the Russian Federation, clause 7 of Article 346.18 Tax Code of the Russian Federation), comrades do not have such a right.

It should also be noted that upon termination of a simple partnership agreement, its participants, when distributing income from the activities of the partnership, do not adjust the income they previously accounted for in taxation by income actually received by them during the distribution of income from the activities of the partnership (clause 5, article 278 of the Tax Code of the Russian Federation). In essence, this means that the income tax in this case is not adjusted downward, which should also be attributed to shortcomings.

It should be noted that upon termination of the simple partnership agreement and the return of property to the participants in this agreement, the negative difference between the valuation of the returned property and the valuation at which this property was previously transferred under the simple partnership agreement is not recognized as a loss for tax purposes (clause 6 of article 278 Tax Code of the Russian Federation).

So, when a new legal entity is established, the profit is distributed among the participants after paying income tax (rate of 20%) or "simplified tax" (6 or 15%), and income tax is additionally withheld from dividends (9% - for Russian organizations and a maximum 15% - for foreign organizations), and in the performance of a simple partnership agreement, the profit distributed between the participants is subject to income tax (rate of 20%) only once.

In terms of income tax, there are such controversial issues as accounting for expenses in the form of depreciation amounts for a fixed asset transferred to a simple partnership, and the obligation to keep separate records of income (expenses) from joint activities.

In particular, on the issue of depreciation of the UMNS of Russia for the city of Moscow, in Letter No. 23-10/2/69744 of December 15, 2003, the following clarifications were given: for a fixed asset transferred for use in the activities of a simple partnership, depreciation, which is calculated according to the rules Art. Art. 258 - 259 of the Tax Code of the Russian Federation, is subject to accounting as expenses that reduce the income received by a simple partnership. This position in terms of the norms of Art. 278 of the Tax Code of the Russian Federation seems to be quite reasonable.

Nevertheless, the Federal Antimonopoly Service of the West Siberian District, in its Decree of December 7, 2006 N F04-8138 / 2006 (29022-A75-14), indicated that the property transferred under a joint activity agreement is not excluded from the taxpayer's depreciable property. Depreciation expenses on property, plant and equipment transferred to joint activities were recognized as legitimate. However, this conclusion from the standpoint of the norms of Art. 278 of the Tax Code of the Russian Federation seems to be extremely controversial.

On the issue of maintaining separate accounting for income and expenses, in the Decree of the FAS of the Far Eastern District of June 13, 2006 N F03-A37 / 06-2 / 814, the court indicated that in the absence of separate accounting for income and expenses from ordinary and joint activities, as well as confirmation by the company of the impossibility of recovery separate accounting of these operations, all proceeds and all expenses are included in the taxable base for the company's income tax.

Considering that a foreign organization can be a partner, we should once again recall the need to apply the rules of an international treaty in the field of taxation. Consider possible options taxation of profits of a foreign organization.

1. In the absence of an international agreement It is necessary to be guided by the norms of the Tax Code of the Russian Federation. At the same time, the income of a foreign organization from participation in a simple partnership agreement is subject to taxation in the territory of the Russian Federation. This type of income in accordance with Art. 309 of the Tax Code of the Russian Federation is subject to taxation at the source of payment, i.e. the paying organization acts as a tax agent and withholds income tax on these amounts at a rate of 20%. If a foreign organization has a permanent establishment and income is transferred to it, it must fulfill this obligation on its own. Similar clarifications were given by the Federal Tax Service of Russia for Moscow in Letter No. 20-12/105732 dated November 30, 2006.

2. In the presence of an international agreement. In this situation, much depends on whether the foreign organization has a representative office in the territory of the Russian Federation or not. As a rule, the norms of international treaties provide that business profits are taxed in the country of the recipient of the profits if the organization does not have a permanent establishment. If a permanent establishment arises, then the tax in respect of the profits of such a representative office is paid by it independently on the territory of the Russian Federation.

The issues of the emergence of a permanent establishment and the procedure for paying income tax must be considered taking into account the norms of a specific international treaty.

Features of the application of property tax. Features are provided for in Art. 377 of the Tax Code of the Russian Federation. The object of taxation for Russian organizations is recognized, among other things, property contributed to joint activities, accounted for on the balance sheet as fixed assets (clause 1, article 377 of the Tax Code of the Russian Federation). The tax base, as in the general case, is determined on the basis of data on the residual value of fixed assets according to the data accounting(Clause 1, Article 374 of the Tax Code of the Russian Federation).

According to the provisions of art. 377 of the Tax Code of the Russian Federation, as in relation to income tax, comrades independently pay property tax in relation to their property. This is done in the following way.

The person keeping records of the common property of the partners shall notify, no later than the 20th day of the month following the reporting period, to each taxpayer - a participant in a simple partnership agreement, information on the residual value of the property constituting the common property of the partners, on the 1st day of each month of the corresponding reporting period and about the share of each participant in the common property of the comrades. At the same time, the person keeping records of the common property of the comrades shall provide the information necessary to determine the tax base.

Each partner calculates and pays tax in respect of property transferred by him to joint activities. With regard to property acquired and (or) created in the process of joint activities, the calculation and payment of tax are made by the participants in the simple partnership agreement in proportion to the value of their contribution to the common cause (clause 1, article 377 of the Tax Code of the Russian Federation).

Once again, it should be noted that the property tax rate can vary by region within 2.2%.

Since a foreign organization can be a participant in a simple partnership agreement, it must be borne in mind that foreign organizations are recognized as payers of corporate property tax in cases where they have property recognized as an object of taxation (clause 1, article 373 of the Tax Code of the Russian Federation). Such property includes (clauses 2 and 3 of article 374 of the Tax Code of the Russian Federation):

movable and real estate relating to fixed assets, property received under a concession agreement (for foreign organizations operating in the Russian Federation through permanent representative offices); the tax is calculated in the general manner, the organization maintains accounting records of fixed assets in accordance with the norms of the Russian Federation;
real estate located on the territory of the Russian Federation and owned by foreign organizations and real estate received under a concession agreement (for foreign organizations that do not operate in the Russian Federation through permanent representative offices); in this case, the tax base is determined as the inventory value of real estate objects according to the technical inventory authorities; to determine it, data as of January 1 of the year that is the tax period are used (clause 2 of article 375, clause 5 of article 376 of the Tax Code of the Russian Federation).

The activities of a foreign organization will lead to the formation of a permanent representative office in Russia if it has the features listed in Art. 306 of the Tax Code of the Russian Federation (clause 2 of article 373 of the Tax Code of the Russian Federation), unless otherwise provided by international treaties. It should be recalled that this article establishes the criteria for a permanent establishment for the purpose of paying income tax.

At the same time, the fact that a foreign organization concludes a simple partnership agreement or another agreement involving joint activities of its parties (participants), carried out in whole or in part on the territory of the Russian Federation, cannot in itself be considered for this organization as leading to the formation of a permanent representative office in the Russian Federation. 6 article 306 of the Tax Code of the Russian Federation).

Other issues of taxation. A partner applying a simplified taxation system should keep the following in mind.

Persons applying the simplified tax system and having entered into a simple partnership agreement have the right to use only the object of taxation "income minus expenses" (clause 3 of article 346.14 of the Tax Code of the Russian Federation).

Since the partnership is not a legal entity, it is not a taxpayer, however, this does not exempt the partnership from tax accounting for its business operations, property, income and expenses. Such accounting, according to the explanations of the tax authorities and the Ministry of Finance of Russia, should be carried out in accordance with the general taxation regime according to the rules of Ch. 25 of the Tax Code of the Russian Federation (Letters of the Ministry of Finance of Russia of December 22, 2006 N 03-11-05 / 282, of July 19, 2006 N 03-11-04 / 2/145, the Federal Tax Service of Russia for Moscow of February 14, 2006 N 18-11 / 3/11634).

At the same time, the partnership itself does not pay corporate income tax. Within the framework of the partnership, it is only determined financial results from joint activities (profit or loss), which is then distributed among the partners and taxed on each partner in accordance with the taxation system applied by him.

It should be recalled that VAT must be paid on the sale of goods, works and services within the framework of joint activities. This is expressly stated in Art. 174.1 of the Tax Code of the Russian Federation, as well as paragraph 2 of Art. 346.11 of the Tax Code of the Russian Federation.

Since (as mentioned above) the list of expenses when applying the simplified tax system is closed, the application of a simple partnership agreement, in fact, allows partners using the simplified tax system to take into account all the costs provided for in Ch. 25 of the Tax Code of the Russian Federation (in terms of operations under a simple partnership agreement).

Tax payers under the simplified tax system take into account the income received from participation in a simple partnership on the basis of paragraph 1 of Art. 346.15, paragraph 9 of Art. 250 of the Tax Code of the Russian Federation. Such income represents the profit of a participant in a joint activity, which is distributed in his favor based on the results of the partnership. Its value is determined by the comrade conducting common affairs, and quarterly informs each comrade about it (clause 3 of article 278 of the Tax Code of the Russian Federation).

Such income represents the "net" income of the taxpayer, i.e. already reduced by the amount of expenses in the framework of the joint activity. Thus, taxpayers using the simplified tax system receive certain benefits from participating in a simple partnership agreement. It is easier for them to comply with the income limit, above which the right to use the simplified tax system is lost. After all, income from joint activities is recognized on the day of receipt of funds to bank accounts (cash) or on the day of receipt of other property (works, services) or property rights (clause 1 of article 346.17 of the Tax Code of the Russian Federation).

You should also pay attention to the following: if fixed assets and (or) intangible assets are transferred to joint activities before three years have elapsed from the date of accounting for the costs of their acquisition, you will have to recalculate the amount of a single tax for the entire period of use of such objects (paragraph 3 of Art. 346.16 of the Tax Code of the Russian Federation), and in relation to fixed assets and intangible assets with a useful life of more than 15 years - if they were transferred before the expiration of 10 years from the date of their acquisition.

value added tax:

and when establishing a new legal entity, and when concluding a simple partnership agreement, the transfer of property as a contribution is not recognized as a sale, respectively, is not subject to VAT; at the same time, the VAT accepted for deduction in respect of such property is restored. When transferred to authorized capital it is deductible from a newly formed organization, and when transferred to a simple partnership, it is subject to inclusion in income tax expenses from the transferring party;
the transfer of property to a participant within the initial contribution and upon withdrawal from the legal entity, and upon the distribution of the property of a liquidated legal entity, and upon withdrawal from a simple partnership, and upon division of the property of a simple partnership, is not recognized as a sale, respectively, is not subject to VAT. At the same time, when transferring property within the limits of the initial contribution to a participant in a legal entity, the VAT accepted for deduction is subject to recovery and inclusion in expenses, and when transferring property to a participant in a simple partnership upon withdrawal from it or upon its termination, VAT is not restored;
when implementing a simple partnership agreement, all obligations of a taxpayer for VAT in relation to the operations of the partnership are performed by the participant who is entrusted with such obligations (only a Russian person can be such a participant);

income tax:

and when establishing a new legal entity, and when concluding a simple partnership agreement, the transfer of property as a contribution is not taken into account in expenses;
transfer of property within the limits of the contribution upon withdrawal of a participant from a legal entity, upon distribution of property upon liquidation of a legal entity, upon withdrawal from a simple partnership and upon termination of a simple partnership agreement is not recognized as income;
when implementing a simple partnership agreement, accounting for income and expenses on the operations of the partnership is carried out by the participant who is entrusted with these duties (only a Russian person can be such a participant), but the income tax itself is paid by the partners themselves from their share of the profit;
a participant in a simple partnership does not have the right to apply the cash method;
participants in a simple partnership in respect of income from joint activities pay only quarterly advance payments;
participants in a simple partnership cannot transfer the loss received in tax accounting to the future;
the profit received by the participants of a legal entity is actually subject to income tax twice: first, the profit itself, and then - income tax on dividends;
income received by participants in a simple partnership is subject to income tax once;
for a clear understanding of the tax consequences with the participation of a foreign organization, it is advisable to take into account the terms of international treaties in the field of taxation with the relevant state (if any). Given that many treaties provide for the taxation of profits from the business activities of a foreign organization in the country of residence (in the absence of a permanent establishment), creating a simple partnership with a state organization in which the income tax rates for such incomes are lower, taxation can be optimized. At the same time, it is necessary Special attention to devote to the formation of a permanent establishment, the presence of which obliges to pay tax on the income of such a representative office in the Russian Federation;

property tax:

upon sale, the property tax is paid by each partner independently in respect of the property on the basis of data provided by the partner keeping records of such property;
property tax rates may differ (within 2.2%) in the regions (subjects of the Federation).

Bibliography

Civil Code of the Russian Federation (part two): the federal law dated 01/26/1996 N 14-FZ.
Tax Code of the Russian Federation (part two): Federal Law of 05.08.2000 N 117-FZ.
Letter of the Federal Tax Service of Russia for Moscow dated November 30, 2006 N 20-12 / 105732.
Letter of the Ministry of Finance of Russia dated December 22, 2006 N 03-11-05 / 282.
Letter of the Ministry of Finance of Russia dated July 19, 2006 N 03-11-04 / 2/145.
Letter of the Federal Tax Service of Russia for Moscow dated February 14, 2006 N 18-11/3/11634.
Letter of the UMNS of Russia for Moscow dated 12/15/2003 N 23-10/2/69744.
Resolution of the Federal Antimonopoly Service of the North-Western District of March 7, 2007 in case N A42-7084/2005.
Decree of the FAS of the Far Eastern District of 06.06.2007 N F03-A59 / 07-2 / 2080.
Decree of the Federal Antimonopoly Service of the West Siberian District dated December 7, 2006 N F04-8138 / 2006 (29022-A75-14).

Yu.A.Ponomarenko

Consultant

ACG "Intercom-Audit"