Question: The founder of the LLC plans to contribute cash deposit in the property of the organization, without increasing the Criminal Code. It is planned that, by decision, the Charter of the company will be amended to the effect that the contribution to the property of the company may not be made by all participants of LLC.1. Is it possible to reflect this in accounting with the following entries: Debit 75, sub-account "Calculations on contributions to the property of the company" Credit 98, sub-account "Gratuitous receipts" - the amount of the founder's debt is reflected as gratuitous receipts (based on the decision of the general meeting of the company's participants); Debit 50 (51) Credit 75, sub-account "Calculations on contributions to the company's property" - funds were received from the founder to the contribution of the company; Debit 98, sub-account "Free receipts" Credit 91, sub-account "Other income" - other income is reflected in the amount received from founders as contributions to the property of LLC.2. If not, is it necessary to use account 83? After postings to Credit 83 accounts, a balance remains for the amount of the deposit. What then happens to this balance? Does it somehow affect the determination of the actual value of the participant's share? And does this amount affect the distribution net profit between the founders and the payment of dividends?
Contributions to property general rule participants contribute in proportion to their shares in the authorized capital, however, a different procedure can be prescribed in the Charter. Thus, if this condition is spelled out, then not all participants can contribute to the property.
Account 98-2 "Gratuitous receipts" upon receipt Money do not use. It is designed to account for income from gratuitous receipt of non-monetary assets only.
When making a contribution to accounting, form the following entries: Debit 75 Credit 83
Debit 50, 51 Credit 75 - the debt of the founder on the contribution to the property of the organization has been repaid.
According to PBU 9/99, income in accounting is not a contribution to property from the founders. In tax accounting, include these funds in non-operating income. If you are planning. Further, the additional capital of the organization can be used: when depreciating fixed assets and intangible assets; when increasing the authorized capital of the organization; for distribution among the founders of the organization. Then you will not have a balance on account 83. The actual value of the share of the founder to be redeemed is estimated on the basis of the market value of the property reflected in the balance sheet, thus, the contribution to the property affects the calculation of the actual value of the share. The contribution to property does not affect the amount of distribution of net profit and the payment of dividends.
The rationale for this position is given below in the recommendation, in a document that you can find in the “Legal base” tab of the “Glavbukh Systems” version for commercial organizations
Deposit amount
Participants make contributions to property in proportion to their shares in the authorized capital, unless another procedure is provided for in the charter (clause 2, article 27 of the Law of February 8, 1998 No. 14-FZ). *
accounting
In accounting, reflect the contribution of the founder to the property of the company as follows:
Debit 50, 51 (08, 10, 41...) Credit 83
- money (fixed assets, materials, goods, etc.) was received from the founders as a contribution to the property of the organization. *
This procedure is recommended in the letter of the Ministry of Finance of Russia dated April 13, 2005 No. 07-05-06 / 107.
If property was received as a contribution from the founder, then in accounting it must be valued at the current market value. This requirement is imposed by accounting legislation on objects received free of charge (clause 10.3 PBU 9/99). To confirm the price, you can use the expert opinion of the appraiser.
The chief accountant advises: to account for contributions to the organization's property, use account 75 "Settlements with the founders."
This account is intended to summarize information on all settlements with the founders (Instructions for the chart of accounts).* Accounting for this account is kept in the context of settlements with each founder. This will allow you to control who has repaid their debt on deposits and who has not.
When using account 75, record transactions to receive a contribution to the organization's property as follows:
Debit 75 Credit 83
- reflects the debt of the founder on the contribution to the property of the organization;
Debit 50, 51 (08, 10, 41...) Credit 75
– the debt of the founder on the contribution to the property of the organization* has been repaid.
income tax
When calculating income tax, a contribution to the property of an organization cannot be recognized as its income if the share of the founder in the authorized capital exceeds 50 percent. This rule does not apply in two cases:*
- if during the year the property received free of charge (with the exception of cash) will be transferred to third parties;
- if property rights are transferred as a contribution (clause 2 of the letter of the Ministry of Finance of Russia dated March 29, 2006 No. 03-03-04 / 1/304).
In these two cases, take into account the value of the contribution received in non-operating income (clause 8, article 250 of the Tax Code of the Russian Federation).
This procedure is provided for by subparagraph 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation.
If the share of the founder in the authorized capital is 50 percent or less, include the value of the contribution received from him in non-operating income (clause 8 of article 250 of the Tax Code of the Russian Federation *). If money is received as a contribution, recognize the income on the date of their receipt to the current account or to the cash desk (subclause 2, clause 4, article 271, Tax Code of the Russian Federation). If property was received as a contribution, then reflect the income on the day the act of acceptance and transfer of valuables is signed (subclause 1, clause 4, article 271, Tax Code of the Russian Federation). Assess the value of the property in accordance with paragraph 8 of Article 250 of the Tax Code of the Russian Federation.
Sergei Razgulin, Deputy Director of the Department of Tax and Customs Tariff Policy of the Ministry of Finance of Russia
2. ORDER, PBU of the MINISTRY OF FINANCE OF RUSSIA DATED 06.05.1999 No. 32N, PBU9/99
2. Income of an organization is an increase in economic benefits as a result of the receipt of assets (cash, other property) and (or) the repayment of obligations, leading to an increase in the capital of this organization, with the exception of contributions from participants (property owners).*
Use of additional capital
Oleg Good, state councilor tax service RF III rank
4.Situation:What data should be used to calculate the actual value of the share of the founder (participant)
Estimate the actual value of the share of the founder (participant) to be redeemed on the basis of the market value of the property reflected in the balance sheet.
The actual value of the share of the founder (participant) corresponds to the part of the value of the net assets of the company, proportional to its nominal share. As a general rule, when buying out a share (when a participant leaves the company), this indicator is determined on the basis of the balance sheet data for the last reporting period before the founder (participant) applied to the company with such a requirement (application). This follows from the provisions of paragraph 2 of Article 14, paragraphs and 6.1 of Article 23 of the Law of February 8, 1998 No. 14-FZ. *
Thus, from the literal interpretation of these norms, it follows that the only document on the basis of which the organization must calculate the actual value of the share of the founder (participant) is the balance sheet. Consequently, other methods for determining the value of the company's assets, including on the basis of the market value of property, cannot be applied.
However, it should be borne in mind that financial statements must accurately reflect financial position organizations (clause 6 PBU 4/99). Subject to this rule, the book value of the property corresponds to its market value.
We continue to analyze ways of transferring property between “our” organizations. Earlier we wrote about donation (see ""). And today we’ll talk about another popular option that allows you to legally transfer property from one organization to another “permanently” - a contribution to the authorized capital. The legislation provides for not one, but two options for the transfer of property from shareholders or participants, respectively, to a JSC or LLC. The first of them is a well-known contribution to the authorized capital, and the second is a contribution to property. Let's consider each of them in more detail.
Legal Issues
It is widely believed that contributions to the authorized capital can be made only when an organization is created, when this very capital is being formed. This is not true. Legislation allows an increase in the authorized capital for long-standing organizations, which is an undoubted advantage of such a method of transferring property as a contribution to the authorized capital. Moreover, if we take into account that in the case under consideration both companies are actually controlled by the same owner, then there will be no problems with the legal execution of the decision to increase the authorized capital. True, it is worth noting here that an increase in the authorized capital requires changes in the constituent documents and state registration of changes. And this procedure is associated with the expenditure of time and certain funds.
Another advantage of the considered method is that not only money, but also any other property can be a contribution to the Criminal Code: securities, things, property rights, other rights that have a monetary value. However, when making "things" contributions, you need to remember that they need to be given a monetary value. In this case, the assessment is carried out by the company itself (more precisely, by the general meeting), only on condition that the value of the share, in payment of which the property is transferred, does not exceed 20 thousand rubles. More "expensive" property contributions require the involvement of an appraiser and, accordingly, the cost of his services.
Concluding a small legal educational program, we recall a very important condition: only an organization that is a shareholder or member of a company can make contributions to the authorized capital. Accordingly, if there are no such relations between the “donor” and the “recipient”, then the considered method cannot be applied (by the way, do not forget that it is necessary to notify the tax office about each case of participation of one organization in another (subparagraph 2, paragraph 2, article 23 of the Tax Code RF)).
Taxes on contribution to the UK
Now let's talk about taxes. Let's start with the transferring party, which does not have any difficulties with taxation when transferring a contribution. The cost of the contribution to the authorized capital is not taken into account in expenses (clause 3 of article 270 of the Tax Code of the Russian Federation). As for, when transferring property as a contribution to the authorized capital, it is necessary to restore the tax on the transferred property, which was previously deductible. At the same time, for fixed assets, VAT is restored in proportion to their residual (book) value (subclause 1, clause 3, article 170 of the Tax Code of the Russian Federation). It is necessary to make such restoration in the period when the actual transfer of property took place.
The restored tax must be reflected in the sales book, while indicating the details of the original invoice - the one on the basis of which VAT was deductible when purchasing this property. Obviously, this can be done only if this document has been preserved in the organization. If it is not there, then you will have to prepare an accountant's certificate and refer to it in the sales book. It is this advice that the Ministry of Finance gives (see).
The amount of VAT restored in this way must be transferred to the budget on a general basis. At the same time, consider this amount in expenses tax authorities prohibit (see Letter No. 19-11/058862 of the Federal Tax Service of Russia for Moscow dated July 5, 2006), although formally it does not fall under the prohibition of paragraph 19 of Article 270 of the Tax Code of the Russian Federation. The fact is that in this case there is no buyer of property (after all, it is contributed to the authorized capital, and not sold) and, accordingly, the tax is not presented to the receiving party. These amounts do not fall under paragraph 3 of Article 270 of the Tax Code of the Russian Federation, because they are not in themselves a contribution to the authorized capital. By the way, this conclusion is confirmed by the text of subparagraph 1 of paragraph 3 of Article 170 of the Tax Code of the Russian Federation, which directly states: the amount of restored VAT does not increase the value of the share acquired by the depositor.
It is also worth paying attention to the next point. When transferring property to the authorized capital, it is not necessary to draw up an invoice, although the recipient has the right to deduct tax. Here, the Tax Code of the Russian Federation makes an indulgence and allows you to indicate the amount of the restored VAT (which the recipient will later accept for deduction) in the act of acceptance and transfer (subclause 1, clause 3, article 170 of the Tax Code of the Russian Federation).
Now let's go over to the side of the recipient of the property contribution to the authorized capital. He, as we indicated above, has the right to deduct the amount of VAT that the transferring party restored (clause 11, article 171 of the Tax Code of the Russian Federation). The amount specified in the act of acceptance and transfer is put to the deduction. It must also be reflected in the purchase book (clause 8 of the Rules for maintaining purchase books and sales books, approved by Decree of the Government of the Russian Federation of December 02, 2000 No. 914).
As for, everything is also quite simple here - the fixed asset received as a contribution to the authorized capital can be depreciated. In this case, the initial cost is determined based on the value (residual value) of this property according to the tax records of the transferring party (clause 1, article 277 of the Tax Code of the Russian Federation). These data are taken on the date of the actual transfer of property.
Simply put, after receiving the property, the organization can continue to accrue depreciation on it, starting from the 1st day of the month following the month in which this object was put into operation. So if you correctly guess with the dates of the actual transfer of property and its commissioning (having carried out all these operations closer to the end of the month), there will be no break in depreciation for the object.
Thus, from the point of view of taxation, the method of transferring property by contributing to the authorized capital is very attractive, since no extra taxes are paid. Judge for yourself: VAT recovered by the transferring party is deductible by the recipient of the property. Depreciation on the object is accrued in the usual manner both before the transfer of property and after.
Contribution to property
The second way to transfer property, which we will consider today, is a contribution to the property of an organization. We will immediately make a few reservations. Firstly, this option can only be used in relation to LLC. Secondly, the “donor” must officially take part in the “recipient” LLC (or vice versa, the “recipient” must take part in the “donor” LLC). Thirdly, the share of this participation must exceed 50 percent - otherwise the taxes that arise in connection with such a transaction will deprive it of any meaning. But more on that later.
As a plus this method transfer of property, you can indicate the absence of the need to make changes to the constituent documents, since the contribution to the property of the organization does not affect its authorized capital. And since it is not necessary to make changes to the documents, then it is not necessary to register these changes in the tax office. Which, in turn, means no financial costs and labor costs.
Another plus of this option is that at any value of the contribution, you do not need to involve an independent appraiser. Finally, legislators generally do not limit not only the cost of deposits, but also their frequency. It is enough just to include a condition on the possibility of making such contributions to the charter of the organization (Article 27 of the Federal Law of February 8, 1998 No. 14-FZ). Specific contributions, their cost and frequency are determined by the decision of the general meeting of participants. At the same time, the law allows making contributions not only in proportion to the shares in the authorized capital of the company, but also in any other options, if they are provided for by the charter of the organization - the recipient of the contribution.
All this makes this tool a convenient way to “transfer” property between the parent and subsidiary.
Taxation of a contribution to property
Much less rosy is the case with the taxation of contributions to property. From the point of view of income tax, a contribution to the property of a company is a gratuitous transfer of property (Article 248 of the Tax Code of the Russian Federation), because the recipient does not have any counter obligations to transfer property, works or services to the “donor”.
This means that the value of the received property should be included in the tax base of the “recipient” (clause 8, article 250 of the Tax Code of the Russian Federation). However, for cases when property is transferred between the parent and subsidiary organizations, an exception is made. According to subparagraph 11 of paragraph 1 of article 251 of the Tax Code of the Russian Federation, when determining the tax base for income tax, income in the form of property received Russian organization free of charge:
- from the organization, if the authorized (share) capital (fund) of the receiving party consists of more than 50% of the contribution (share) of the transferring organization;
- from the organization, if the authorized (share) capital (fund) of the transferring party consists of more than 50% of the contribution (share) of the receiving organization;
— from an individual, if the authorized (share) capital (fund) of the receiving party consists of more than 50% of the contribution (share) of this individual.
Please note: this benefit is valid only on the condition that within a year after receiving the deposit, the property will not be transferred to third parties.
For the property thus obtained, the organization may charge depreciation based on the market value of the property. The market value can be confirmed both by an expert assessment and other documents (paragraph 2, clause 1, article 257, clause 8, article 250 of the Tax Code of the Russian Federation). For example, the decision of the general meeting and the act of acceptance and transfer. That is, from the point of view of depreciation, this method may turn out to be even more profitable than a contribution to the authorized capital, since it allows you to determine the cost of the transferred fixed assets in a much wider range.
For the transferring party, the value of the contribution in expenses is not taken into account on the basis of paragraph 16 of Article 270 of the Tax Code of the Russian Federation, since this property is donated for income tax purposes.
However, the situation with taxes is greatly “spoiled” by VAT. The fact is that the Tax Code of the Russian Federation does not contain a norm that directly regulates the calculation of VAT on contributions to the property of a company. Therefore, two options are possible.
Option 1. As in the case of income tax, recognize the contribution as a gratuitous transfer. This automatically entails the obligation to charge VAT (subclause 1, clause 1, article 146 of the Tax Code of the Russian Federation). At the same time, the receiving party will not have the right to deduct, since in this case there is no tax, and the legislators have not established a special rule for contributions to property (as opposed to contributions to the Criminal Code) (clause 1, article 171, article 168 of the Tax Code RF).
Option 2. Treat this transaction as an investment and not tax it with VAT on the basis of subparagraph 4 of paragraph 4 of Article 39 of the Tax Code of the Russian Federation. But in this case, the question arises of restoring VAT (clause 3, article 170 of the Tax Code of the Russian Federation), and restoring the tax immediately deprives this option of attractiveness.
Thus, it makes sense to consider a contribution to property as a way of transferring property from one organization to another only if the transferred property is not subject to VAT (for example, land, securities, etc.), or if the transferring party is not a payer of this tax. In other cases, the need to charge VAT makes this method unprofitable.
The authorized capital is a documented amount of funds that the founders contribute when creating their organization. It forms the minimum number of assets of a legal entity that it needs to carry out its activities. Also, this capital guarantees the interests of investors and creditors of the organization.
The contribution of property to the authorized capital is made by the founders of companies with limited liability, joint-stock companies. Moreover, such a contribution can be paid, both tangible and intangible values.
Deposit Features
Contribution to the authorized capital with property is made both in the process of creating an organization and when increasing its assets. At the same time, the founders have the right to pay for their share of participation with their money, property, securities, as well as other rights that have a monetary value.
The legislation provides that such contributions do not participate in the formation of the base for income tax, as well as value added tax.
When forming the authorized capital, accounting provides for different procedures for fixing such property. The easiest way is to pay your share of participation in cash. When depositing tangible or intangible assets (non-monetary funds), a certain procedure is performed.
The contribution to the authorized capital by real estate, securities or other valuables is carried out according to certain scheme. At the first stage, the founder must confirm his rights. He must be the owner of the values that he is going to transfer to the authorized capital. Further, the transfer of valuables is documented by signing a special act of acceptance and transfer. You should also decide if you need to seek the help of a third-party appraiser.
Property valuation
According to a certain technology, a contribution to the authorized capital is made by property. Assessment of non-monetary values is carried out by a specialist involved from outside. This approach is established by law. Evaluation (except for money) is made by an expert in any case, regardless of the amount of the contribution. Previously, the law was in force, if the share of the participant's contribution to the authorized capital is less than 20 thousand rubles, the owner can deal with the determination of the value independently. However, since 2014 this law has been repealed. 
If the organization resorts to the help of an independent appraiser, this specialist and the participant who transfers non-monetary property bear material responsibility for 3 years (from the date of registration of the organization). Moreover, it exceeds the value of the contribution. This is necessary so that an independent appraiser does not overestimate the value of the participant's property. If subsequently the company has debts to creditors due to an incorrect procedure for depositing values, both the organization itself and the involved expert will be liable for such obligations.
The contribution is accepted at the residual value. The authorized capital with property (VAT in this case is not removed) is replenished in accordance with the tax accounting of the participant. This takes into account additional costs associated with the transfer of property or rights. They are determined as part of the contribution to the authorized capital.
VAT deduction
As mentioned above, when making shares by members of the company, property tax is not removed. The contribution to the authorized capital is not subject to VAT. However, in some cases, it may be subtracted from the amount of the contributed values. For example, if such property is subsequently used by the organization in activities that are subject to VAT under the law. It is restored by the transferring party, but only if these amounts are allocated in the documentation. 
In this case, an invoice is not required. Only the relevant transfer documents are recorded in the organization's purchase book. Copies of these must also be kept in the journal of received invoices. The deduction of the amount of tax is made after the acceptance of valuables on the balance sheet of the organization.
If the restored tax was not actually paid by a member of the organization, the company does not have the right to pay this amount. It is established by law and suppressed in judicial order. They are accepted for deduction of the amount of VAT only if the persons who made the contribution previously legally accepted them for recovery.
They do not have the right to restore VAT when making tangible and intangible assets individuals. They initially are not payers of such tax. Even if this amount is allocated in the documents during the transfer of property, the company does not have the right to take them into account.
Payment instruction
If a participant wishes to make a minimum contribution to the authorized capital of the company, he can do this only in cash. This law has been in force since 2014 on the territory of the Russian Federation. An additional contribution to the charter capital with property can be made only if the participant has already made a cash amount in the amount of 10 thousand rubles. At the same time, it is not necessary to pay out your share of participation in intangible values. Only a cash contribution will suffice. 
If the founders have decided to contribute a certain share in the authorized capital with property, they must adhere to certain instructions. At the first stage, the participants unanimously approve the assessment in monetary terms values that are transferred to the fund of their organization.
After that, an assessment of such property is carried out by an independent expert. After a specialist involved from outside has carried out his work, the participants in the company must sign the act. It is based on the results of the evaluation.
Data on the value of the share contributed in this way is also reflected in the relevant documentation. If there is only one founder, this information is indicated in the decision. For two or more participants, an agreement and a protocol are drawn up.
The next step is to register the company. After signing the relevant documents, all participants must transfer a set amount of valuables to the fund of their organization. In this case, an act is drawn up in the prescribed form. It is prohibited by law to contribute property that is pledged to the statutory fund, or borrowed funds creditors, insurance companies, etc.
accounting entries
In a certain way, the contribution to the authorized capital by property is reflected in accounting. Postings, both for money and other valuables, use account 75 and the sub-account "Settlements with founders". 
Postings in this case correspond to the debt of the participants in the debit of sub-account 75. Until the participant of the company has repaid them, they are listed here. When the required share in the authorized capital is paid, this amount will be reflected on the loan as a repaid debt of the debtor. It will be equal to the documented residual value of deposits.
If the company has a limited liability, its fund must be paid at the time of creation by at least half. If the participants have a debt to pay the established share, it is reflected in accounting by posting to account 75 (Debit) and account 80 (Credit). Data on the amounts are taken from the corresponding signed documentation. The amount 80 of the account corresponds to the amount of capital set for contribution, which is fixed when the organization is created.
At the same time, when paying the established share in money, the wiring will be simple. It is reflected in account 50 (Debit) and account 75 (Credit). However, the procedure for accounting for non-monetary values that the founder transfers to the organization is more complicated.
Accounting for transferred property
It is somewhat more difficult to reflect in accounting the contribution to the authorized capital by property. Postings in this case will be carried out in accordance with the standard "Accounting for fixed assets". 
At the same time, at the first stage, the compliance of the transferred values with the established characteristics of fixed assets is checked. After that, the transferred property is put on the balance sheet. Regardless of its type, values in fixed assets are entered at historical cost. This takes into account the source of its receipt.
The initial cost is formed on the basis of the results of an assessment of an independent examination. It corresponds to their monetary price, which was approved by all members of the organization. This also includes the costs that arise during the registration of rights, delivery and commissioning of this property.
To summarize the results of accounting for the costs of accepting fixed assets that a participant transfers to an organization, the account “Investments in non-current assets” (account 08) is used in accounting. Therefore, it is with him that account 75 will subsequently correspond. Postings are not made directly with the account “Fixed Assets” (account 01).
Example of accounting entries
The contribution of the founder to the authorized capital by property must be correctly displayed in accounting. To avoid mistakes, you should consider the entire procedure with a specific example. For example, Konstruktor LLC registered its authorized capital in the amount of 300 thousand rubles. The first founder paid his share by contributing to the general fund of the car. Expert review conducted before the transfer of this property, found that the market value of the machine is 50 thousand rubles.
After signing the relevant documentation (the list was presented above), the accountant must correctly display this operation. The firm displays information using previously submitted entries. In this case, the accountant makes the following entries.
Debit 75 Credit 80. At the same time, the amount is 300 thousand rubles. is reflected in the accounting as registered capital and at the same time the debt of the participants in the organization.
After that, the property as a contribution to the authorized capital (50 thousand rubles) should be displayed as part of fixed assets. Posting: Debit 01 Credit 08.
The presented actions are performed on the basis of documents for the transfer of material assets.
Contribution to the joint-stock company with property
Contribution to the authorized capital by property is not legally provided for joint-stock companies. However, there is no prohibition on the implementation of such a procedure. Therefore, the features of this process should be considered. If the shareholder is a legal entity, and he wants to contribute to the authorized capital of value in the form of non-monetary funds, there is some discrepancy. 
The legislation provides that the donation of material values between commercial organizations cannot exist. This applies even to parent or subsidiaries. However, formally tax code allows for the free transfer of property. At the same time, there is no specification for which organizations this is possible.
Therefore, in some cases, for joint-stock companies, the analogy of making tangible and intangible assets into the authorized capital is used. There are only some restrictions on donation issues.
Shareholders may be interested in increasing the authorized capital of their company. At the same time, they expect growth in net income and dividend payments. However, the transfer of property in this case is considered gratuitous. Moreover, the cost of these valuables can also be excluded from the taxable base. Such property shall not be transferred to third parties during the year.
If the property received by the joint-stock company for the formation of the authorized capital is leased, pledged or in another form, the tax exemption will not apply.
Payment of a share of the right to use property
Contribution to the authorized capital of an LLC with property can be carried out in a slightly different form. It is not the material values themselves that can be transferred, but only the right to use them. For an LLC, this option is possible. However, with this method of paying shares, some difficulties are possible.
For example, a situation may occur when the right to use property ends earlier than agreed by the founders. In this case, the lease agreement expires. It is legally established that in the event of such a situation, a participant who transfers the right to use property as payment for his share, at the request of the founders, is obliged to compensate for the loss in the form of monetary funds. The amount will be equal to the payment for the lease of an object of movable or immovable property. Moreover, such a transfer of funds is made on the same conditions that were originally established before the expiration of the previously established period of use. However, the contribution of property to the authorized capital is considered preferable.
Compensation is provided at a time, but within a reasonable time. The repayment period is set from the day the founders submit their claims. Participants may choose another way to provide compensation. This decision is documented in the minutes of the general meeting. In this case, the participant to whom the requirements are put forward does not participate in the voting.
Proof of payment
The contribution of property to the authorized capital, which is made by the founders, must be documented. Such information is stored in the created organization.
However, each participant must also receive documents confirming his share in the general fund of the organization. They must be properly formatted. This is proof of the contribution of property or rights to its use by the participants of the organization.
First of all, the founder must receive an extract from the organization's current account, as well as copies of payment documents, an act of acceptance and transfer of tangible or intangible assets. Also, each member of the company must own the provision of the charter. It indicates the fact of full payment of the authorized capital.
At the same time, the balance sheet should not contain information about incomplete payment of the authorized capital of the LLC. Also, the proof of the contribution by the participant of his share is the receipt of a receipt for the cash receipt order.
Having considered what constitutes a property contribution to the authorized capital, as well as the procedure for making it, one can understand the mechanism for conducting such an operation for various organizations.
The authorized capital of a joint-stock company is the initial source of the company's funds, the so-called start-up capital formed during the creation of society. In the future, it can be increased: by increasing the nominal value of shares or by placing additional shares. However, the financing of a joint-stock company can be carried out by shareholders and by a contribution to the property of a joint-stock company that does not increase the authorized capital of the company. Let's analyze how this can be done and what are the limitations.
Key points
Joint stock companies are one of the most common organizational and legal forms of commercial organizations operating in the Russian Federation. Legal basis their activities are regulated by:Civil Code Russian Federation; federal law dated December 26, 1995 No. 208-FZ (as amended on July 3, 2016) “On Joint Stock Companies” (hereinafter - Law No. 208-FZ). A joint-stock company may be public or non-public, which is reflected in its charter and company name. A company is recognized as public if its shares and securities convertible into its shares are publicly placed (by open offering) or publicly traded on the terms established by securities laws. All other companies that do not meet these criteria are considered non-public.
The founding document of a joint-stock company is its charter, which, in particular, must contain information about the firm name of the company and its location, conditions on the categories of shares issued by the company, on their nominal value and number, on the amount of the company's authorized capital, the rights of shareholders, the composition and the competence of the company's bodies, the procedure for their decision-making.
The joint-stock company is considered to be established as entity from the moment of its state registration.
The legal norms establishing mandatory requirements for the authorized capital of a joint-stock company are established by Art. 99-101 of the Civil Code of the Russian Federation, as well as Art. 25-30 of Law No. 208-FZ.
The authorized capital of a joint-stock company is made up of the nominal value of the shares of the company acquired by the shareholders, and it is not allowed to release the shareholder from the obligation to pay for the shares of the company (clauses 1, 2, article 99 of the Civil Code of the Russian Federation).
Public and non-public JSCs
The size of the authorized capital of joint-stock companies is determined by Art. 26 of Law No. 208-FZ, according to which the minimum authorized capital of a public company must be 100 thousand rubles, and the minimum authorized capital non-public society- 10 thousand rubles.Note that joint-stock companies are vested with the right to increase and decrease the authorized capital of the company, which is carried out in accordance with Law No. 208-FZ and provided for by Art. 100 and 101 of the Civil Code of the Russian Federation, respectively.
The law or the charter of a company that is not public may establish restrictions on the number, total nominal value of shares or the maximum number of votes belonging to one shareholder (clause 5, article 99 of the Civil Code of the Russian Federation).
In a public joint stock company, the number of shares owned by one shareholder, their total nominal value, as well as the maximum number of votes granted to one shareholder, which is established by paragraph 5 of Art. 97 of the Civil Code of the Russian Federation.
The share of preferred shares in the total volume of the authorized capital of a joint-stock company must not exceed 25%. At the same time, a public joint-stock company is not entitled to place preferred shares, the par value of which is lower than the par value of ordinary shares (clause 1, article 102 of the Civil Code of the Russian Federation).
JSC financing by issuing shares
In accordance with Chapter 2 of the Regulations on Securities Issue Standards, the Procedure for State Registration of an Issue (Additional Issue) of Equity Securities, State Registration of Reports on the Results of an Issue (Additional Issue) of Equity Securities and Registration of Prospectuses of Securities, approved by the Bank of Russia on 11.08.14 No. 428-P (hereinafter - Regulation No. 428-P), the procedure for making a decision on the placement of securities, as well as its content must comply with the requirements of federal laws and Regulation No. 428-P.If the charter of a joint-stock company determines the procedure and conditions for the placement of declared shares of a certain category (type), then the procedure and conditions for the placement of additional shares of this category (type), determined by the decision on their placement, must comply with the specified provisions of the charter of such a joint-stock company.
In accordance with Art. 22 of the Federal Law of April 22, 1996 No. 39-FZ "On the Securities Market" (hereinafter - Law No. 39-FZ) state registration issue (additional issue) of issuance securities placed by subscription must be accompanied by registration of the prospectus of securities. The securities prospectus must be drawn up in accordance with the Regulations on the Disclosure of Information by Issuers of Equity Securities approved by the Bank of Russia dated December 30, 2014 No. 454-P.
So, when a joint-stock company is established, the first issue of shares is carried out, which are placed among the founders. The form of payment for shares when establishing a company is determined by the agreement on the creation of the company. Additional shares and other equity securities of the company placed by subscription are placed subject to their full payment. The shareholder acquires the right to vote at the general meeting from the moment of full payment of the shares.
Paragraph 2 of Art. 34 of Law No. 208-FZ provides the founders with the opportunity to independently determine, respectively, the form of payment for shares distributed among the founders upon founding a company, as well as additional shares placed by subscription. Such shares may be paid for in cash, securities, other things or property rights or other rights having a monetary value. Payment for additional shares by offsetting monetary claims against the company is allowed if they are placed through a closed subscription. The form of payment for the shares of the company upon its establishment is determined by the agreement on the creation of the company, additional shares - by the decision on their placement. Payment for other emissive securities may only be made in cash.
The charter of the company may contain restrictions on the types of property that can be used to pay for the shares of the company.
Monetary valuation of property contributed as payment for shares during the establishment of a company is made by agreement between the founders.
In the decision of the Federal Antimonopoly Service of the Moscow District dated January 28, 2013, in case No. A40-130686 / 09-103-634b, it was noted that in addition to the general provision of paragraph 1 of Art. 34 of Law No. 208-FZ, the specified norm in paragraph 3, clause 3, as a separate case, establishes the procedure for regulating payment for shares in non-monetary funds. When paying for shares with non-monetary funds, an appraiser must be involved to determine the market value of such property, unless otherwise established by federal law. The value of the monetary valuation of property made by the founders of the company and the board of directors (supervisory board) of the company cannot be higher than the value of the valuation made by the appraiser.
Thus, by virtue of the direct indication of paragraph 3 of paragraph 3 of Art. 34 of Law No. 208-FZ, the involvement of an appraiser when paying for shares in non-cash funds to determine the market value of such property is mandatory.
According to Art. 27 of Law No. 208-FZ, the charter of the company must determine the number, par value of shares acquired by shareholders (placed shares), and the rights granted by these shares. Shares acquired and redeemed by the company, as well as shares of the company, the ownership of which has passed to the company in accordance with Art. 34 of Law No. 208-FZ are placed until maturity. The charter of the company may determine the number, nominal value, categories (types) of shares that the company has the right to place in addition to the already placed shares (declared shares), and the rights granted by these shares. In the absence of these provisions in the charter of the company, it is not entitled to place additional shares.
The charter of the company may determine the procedure and conditions for the placement of declared shares by the company.
The Company places ordinary shares and has the right to place one or more types of preferred shares. All shares of the company are non-documentary.
All shares of the company are registered equity securities. Registered issue-grade securities may only be issued in non-documentary form, with the exception of cases provided for by federal laws (Article 16 of Law No. 39-FZ). Note that general provisions on book-entry securities are defined by Art. 149 of the Civil Code of the Russian Federation.
The rights of holders to equity securities of non-documentary form of issue are certified in the register maintenance system - by entries on personal accounts with the registrar or, in the case of registration of rights to securities in a depository, by entries on a depo account in depositaries (Article 28 of Law No. 39-FZ).
The right to a registered non-documentary security passes to the acquirer, including in the case of accounting for the rights to securities with a person engaged in depository activities, from the moment a credit entry is made on the acquirer's depo account (Article 29 of Law No. 39-FZ).
Recall that the accounting of rights to paperless securities is carried out by making entries on accounts by a person acting on behalf of a person liable under a security, or by a person acting on the basis of an agreement with the right holder or with another person who, in accordance with the law, exercises rights under the security. paper. Keeping records of such rights is carried out by a person who has a license provided for by law (clause 2, article 149 of the Civil Code of the Russian Federation). That is, the registration of rights to book-entry securities must be carried out by a person who has the appropriate license.
Contribution of property without increasing the authorized capital
We have considered ways of financing joint-stock companies by means of initial or additional issue of shares. However, the assets of a joint-stock company can be replenished not only by issuing new shares, but also by investing property without increasing the authorized capital, which is sometimes more convenient. So, for example, the situation may develop in such a way that a decision can be made on contributions to property only by individual shareholders or not in equal shares. This right is granted by Art. 32.2 of Law No. 208-FZ, introduced by Federal Law No. 339-FZ of July 3, 2016. In addition, in non-public companies, shareholders may be required to make contributions to the property of a non-public company, which is not provided for in the case of an additional issue of shares.So, according to paragraph 1 of Art. 32.2 of Law No. 208-FZ, shareholders, on the basis of an agreement with the company, have the right, in order to finance and maintain the company's activities, at any time to make gratuitous contributions to the company's property in cash or in another form, which do not increase the authorized capital of the company and do not change the nominal value of shares (hereinafter - contributions to the property of the company).
The property contributed by shareholders as a contribution should be of the types specified in paragraph 1 of Art. 66.1 of the Civil Code of the Russian Federation, namely:
cash; things, shares (shares) in authorized (share) capitals of other business partnerships and societies; government and municipal bonds; exclusive, other intellectual rights and rights under license agreements subject to monetary value, unless otherwise provided by law.
At the same time, the provisions of the Civil Code of the Russian Federation on a gift agreement do not apply to agreements on the basis of which contributions are made to the company's property.
note that the agreement on the basis of which a shareholder makes a contribution to the property of the company must be preliminarily approved by the decision of the board of directors (supervisory board) of the company, except for cases of making contributions to the property of the company, provided for in paragraph 3 of Art. 32.2 of Law No. 208-FZ.
As for a non-public company, there are certain restrictions for it. Thus, the charter of a non-public company may provide for the maximum value of contributions to property made by all or certain shareholders, and other restrictions related to making contributions to the property of a non-public company.
According to paragraph 3 of Art. 32.2 of Law No. 208-FZ, the charter of a non-public company may provide that the decision of the general meeting of shareholders may impose the obligation to make contributions to the property of the company on its shareholders, and the procedure, grounds and conditions for making contributions to the property of the company may also be provided. Moreover, if the charter provides for such a possibility, then the decision of the general meeting of shareholders must be taken unanimously.
In addition, the charter of a non-public company may provide that, by decision of the general meeting of shareholders, it is allowed to impose the obligation to make contributions to the property of a non-public company only to shareholders - owners of shares of a certain category (type). In this case, the decision of the general meeting of shareholders is made by a three-quarters majority of the votes of the shareholders participating in the general meeting, provided that such a decision is unanimously voted by all shareholders - owners of shares of each category (type), who are responsible for making a contribution to the property non-public society.
In this situation, contributions to the property of a non-public company are made in proportion to the shareholder's share of shares in the charter capital of the non-public company, unless another procedure for determining the amount of contributions to the property of a non-public company is provided for by the charter. In this case, the contribution is made only in cash, unless otherwise provided by the charter or decision of the general meeting of shareholders of a non-public company.
The obligation to make contributions rests with the persons who were shareholders on the date such obligation arose.
In case of failure to fulfill the obligation to make a contribution to the property of a non-public company, the company itself or the shareholder has the right to apply to the court with a claim for the fulfillment of such an obligation (clause 4, article 32.2 of Law No. 208-FZ).
If for current activities organization of own resources is not enough, participants can help fill the gap. You can apply for assistance in different ways: increase the authorized capital, make a contribution to the property of an LLC, or simply transfer assets free of charge. Each option has its pros and cons. An increase in the authorized capital is a rather complicated procedure: it will be necessary to hold a general meeting of participants twice, amend the charter and register them. Free assistance from this point of view is the easiest option. But LLC participants can go the other way, by issuing assistance in the form of a contribution to property. In certain cases, from a tax standpoint, this is more profitable than the assistance received free of charge.
We will tell you what you need to pay attention to so that you do not have to overpay taxes.
Accounting at the transferring party
Accounting
According to the recommendations of the Ministry of Finance, when accounting for operations to make contributions to the property of a subsidiary, it is necessary to be guided by RAS 10/99 “Organization expenses” Letter of the Ministry of Finance dated January 29, 2008 No. 07-05-06/18 (section “Representation by the audited entity of information on the contributions of participants in a limited liability company to the company’s property”). If you follow these recommendations, the transfer of property must be reflected in the debit of account 91-2 “Other expenses” in correspondence with the credit of the accounts of the transferred property.
However, there is another approach to accounting for such a transaction: contributions to the property of the company must be accounted for as part of financial investments.
EXPERIENCE EXCHANGE
INOZEMTSEV Oleg Valerievich
Chief Specialist of the International Financial Reporting Department of JSC Hals-Development
“ If an organization (investor) owns a 100% stake in the authorized capital of another organization (an investment object), then the investor’s contribution to the property of the investment object in the investor’s reporting (both under IFRS and Russian RAS) is reflected as part of the investment (financial investment). That is, a contribution to the company's property (as well as material assistance to a subsidiary, a contribution to increase net assets, etc.) is reflected in the same way as a contribution to the authorized capital.
Indeed, the user of the reporting of the investor company does not care at all whether changes were made to the constituent documents (priority of content over form). It is only important for him that the investee has received additional assets and will use them in his activities to make a profit.
If we think from the point of view of Russian accounting, then it may seem that such an accounting procedure contradicts the first condition for accepting accounting assets as a financial investment par. 2 p. 3 RAS 19/02- availability of properly executed documents confirming that the organization has the right to financial investments and the right to subsequently receive cash or other assets from these investments.
However, it is not. The investor has properly executed documents confirming the transfer of property to the investment object. In addition, the investor has constituent documents for the investment object or documents confirming the acquisition of a share. All this together gives the investor the right to receive further money or other assets from the investee.
If the investor owns a share of less than 100%, then the contribution to the property of the investee will be made by all investors in proportion to their share in the investee. And each investor will reflect his contribution as described above, that is, as part of the investment.
This approach is used because the proportional contribution of investors does not change their share of ownership in the investee. The real value of the investment of each investor immediately after the deposit will increase by at least the amount of his deposit (otherwise no one would make such a deposit under normal circumstances), or even more. Of course, in the future this investment may depreciate, but these are issues of subsequent accounting, and not the initial recognition of the investor's contribution to the property of the investment object.
VAT
If the contribution to the property is made in money, then no difficulties arise, VAT is not charged. But when transferring other assets (goods, materials, fixed assets, etc.), the participant needs to accrue and pay VAT to the budget on their market value and sub. 1 p. 1 art. 146, paragraph 2 of Art. 154 Tax Code of the Russian Federation. At least that's what the Ministry of Finance thinks. Letters of the Ministry of Finance of August 21, 2013 No. 03-07-08 / 34198, of July 15, 2013 No. 03-07-14 / 27452. According to officials, the transfer of property in this situation is recognized as a sale, and, accordingly, is subject to VAT.
But one can disagree with the opinion of the Ministry of Finance. The fact is that the transfer of property in this case is of an investment nature, and therefore, the sale is not recognized sub. 4 p. 3 art. 39 Tax Code of the Russian Federation. Therefore, there is no need to charge VAT here. But with this approach, it is necessary to restore the VAT that was accepted for deduction earlier when acquiring property and sub. 2 p. 3 art. 170 Tax Code of the Russian Federation. Recall that VAT on goods and materials is restored in full (therefore, the investment organization, most likely, will not receive any benefit from the recognition of the transaction). But for fixed assets, only that part of the VAT that falls on its residual value is restored. Therefore, if you transfer an expensive fixed asset as a contribution and its residual value differs greatly from the market value, recognizing the transaction as an investment is much more beneficial from a tax point of view. Organizations willing to argue with the tax authorities will benefit from knowing that arbitrage practice in this matter on the side of the taxpayers. According to the arbitrators, the participant's contribution to the property of a subsidiary is an investment transaction and is not subject to VAT. Decrees of the FAS VVO dated 03.12.2012 No. A29-10167 / 2011; FAS CO dated February 20, 2007 No. A-62-3799/2006. If you adhere to this position, then in accounting, it is better to take into account the contribution to property as part of financial investments.
income tax
The texts of the Letters of the Ministry of Finance mentioned in the article can be found: section “Financial and personnel consultations” of the ConsultantPlus systemFrom the point of view of profit taxation, a contribution to the property of a subsidiary is recognized as a gratuitous transfer. Therefore, the value of the transferred property (including money) is not taken into account in expenses when calculating income tax. As well as the costs associated with such a transfer are not taken into account (for example, the costs of delivering goods from the parent company to the subsidiary) paragraph 16 of Art. 270 of the Tax Code of the Russian Federation; Letters of the Ministry of Finance dated May 10, 2006 No. 03-03-04 / 1/426, dated March 14, 2006 No. 03-03-04 / 1/222.
Let's talk separately about the write-off of accrued or restored VAT. There are two options for accounting.
OPTION 1 (risky). This VAT is reflected as part of other expenses of the organization sub. 1 p. 1 art. 264, sub. 2 p. 3 art. 170 of the Tax Code of the Russian Federation; Decree of the FAS VVO of March 18, 2011 No. A82-8294 / 2008.
OPTION 2 (safe). VAT is not included in the costs. The fact is that tax authorities, as a rule, recognize such VAT as costs directly related to gratuitous transfer. And they, as we have already said, do not reduce the income tax base t paragraph 16 of Art. 270 Tax Code of the Russian Federation.
Accounting with the receiving party
Accounting
In the accounting of a subsidiary organization, the receipt of assistance from participants is reflected in the debit of the property accounting account and the credit of account 83 "Additional capital" Letters of the Ministry of Finance dated January 29, 2008 No. 07-05-06 / 18, dated April 13, 2005 No. 07-05-06 / 107. At what cost should the received property be reflected? In the current normative documents accounting does not mention this. In our opinion, it is necessary to take into account such property at market value (that is, in the same way as received free of charge) clause 7 PBU 1/2008.
income tax
The tax code allows no income tax on any property received from participants, provided that the purpose of such transfer is to increase the net assets of the recipient company. Moreover, this rule is valid regardless of the share of participation in the authorized capital of the organization. sub. 3.4 p. 1 art. 251 of the Tax Code of the Russian Federation; Letter of the Ministry of Finance No. 03-03-06/1/257 dated April 20, 2011. Therefore, in the documents relating to making contributions (and this is primarily the decision of the participants), it should be directly stated: "The purpose of making contributions is to increase the net assets of the subsidiary."
WARNING THE MANAGER
In order not to have to overpay income tax, the decision of the general meeting of shareholders must expressly state that the purpose of making contributions to the property is to increase the net assets of the subsidiary.
If such a purpose is not specified in the documents, the assistance received will not be subject to income tax only when sub. 11 p. 1 art. 251 Tax Code of the Russian Federation:
- the share of the founder in the authorized capital of the subsidiary is more than 50%;
- the received property (except for money) will not be transferred to third parties during the year (sold, leased, pledged to Letter of the Ministry of Finance dated February 9, 2006 No. 03-03-04/1/100).
If you received a fixed asset as a contribution to property, it can be depreciated. The initial cost of such fixed assets will be equal to its market price (but not lower than the residual value of this fixed asset in the tax records of the parent company) paragraph 1 of Art. 257, paragraph 8 of Art. 250 of the Tax Code of the Russian Federation; Letter of the Ministry of Finance of April 28, 2009 No. 03-03-06/1/283. However, you cannot apply a depreciation bonus to these fixed assets. paragraph 9 of Art. 258 Tax Code of the Russian Federation.
But upon receipt of materials or goods, their tax value will be zero. Therefore, when writing off materials for production or selling goods in tax accounting, their cost cannot be taken into account in expenses, even if you reflected income when receiving them. Letters of the Ministry of Finance dated September 26, 2011 No. 03-03-06 / 1/590, dated February 7, 2011 No. 03-03-06 / 1/80.
If the contribution to the property of the company is made in money, there are no difficulties. Anything you purchase with this money will be accounted for in the normal way.
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