Citizens can give and transfer any property to each other, without any restrictions. What about the situation when transferring property between legal entities - can organizations transfer things to each other in any case, how to document this, how to do it in accounting?
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These and other questions will be answered in this article.
The concept of gratuitous transfer of property to legal entities
The gratuitous transfer of property assumes that one legal entity transfers it to another legal entity, while the transferring party will not receive any counter-performance - neither in money nor in any other form (provision of goods, performance of work, etc.).
Difference between gratuitous transfer and donation
A gratuitous transfer can be carried out either forever or for a certain period of time it can be transferred for gratuitous use (loan). After the end of the period agreed upon by the parties, what was transferred under the contract must be returned to the party that transferred it.
A donation is a final transaction; a gift cannot be transferred temporarily.
In addition, the law prohibits donations between commercial organizations. Commercial organizations include those organizations that are created to make a profit. Such organizations only have the right to transfer things to each other for free use (loan), but not to give it as a gift.
Good to know! This ban was introduced in order to protect creditors from the unjustified withdrawal of assets belonging to the organization in the event of bankruptcy, as well as the founders from the actions of an unscrupulous manager.
However, for-profit organizations can give or receive gifts to non-profit organizations (those whose main purpose is not making a profit).
Let's celebrate! Non-profit organizations can either give things that belong to them or receive them as a gift from any person, including commercial organizations.
What can you give?
Commercial organizations can give or receive gifts from the same organizations, the value of which does not exceed three thousand rubles.
Non-profit organizations can give or receive as a gift any things the circulation of which is not prohibited by law.
As a rule, it is transferred (donated):
- real estate;
- vehicles;
- equipment;
- raw materials;
- goods;
- cash;
- securities.
What property cannot be given as a gift?
You cannot give something that is prohibited by law for circulation or is restricted in circulation. It could be:
- narcotic drugs, toxic substances;
- weapons (certain types), ammunition;
- some items of cultural value.
Also, you cannot donate those things that have been seized.
How to formalize the transfer of goods to the founder for his own needs?
Our company LLC is on the general taxation system.
The sole founder (employee of the organization) needed a product for his own needs. How to formalize the transfer of goods to the founder in this case? In the described situation, the following options are possible:
1. Your organization has the right to pay dividends due to the founder (individual) by transferring property, i.e., in goods.
The company has the right to make a decision quarterly, once every six months or once a year on the distribution of its net profit among the company's participants. The decision to determine the part of the company's profit distributed among the company's participants is made by the general meeting of the company's participants.
Part of the company's profit intended for distribution among its participants is distributed in proportion to their shares in the authorized capital of the company, unless a different procedure is established by the company's charter. The term and procedure for payment of distributed profit are determined by the company's charter or a decision of the general meeting of company participants. The period for payment of part of the distributed profit of the company should not exceed sixty days from the date of the decision on the distribution of profit between the participants of the company (clauses 1-3 of Article 28 of the Federal Law of 02/08/1998 No. 14-FZ).
When dividends are paid in the form of property, the ownership of this property, which previously belonged to your organization, passes to its participants, therefore:
In the accounting of your organization (transferring party)
the above transfer of property is recognized as a sale (Clause 1, Article 39 of the Tax Code of the Russian Federation).
Income from the sale of this property will be included in the income taken into account when determining the tax base for income tax. The transfer of goods to repay debts on dividend payments is subject to VAT. The tax base is defined as the cost of goods, calculated on the basis of market prices (clause 1 of Article 154, clause 1 of clause 1 of Article 146 of the Tax Code of the Russian Federation).
Please note that the transfer of goods to the participant to repay debt on dividends means that the transaction price is equal to the amount of declared dividends (income). It is assumed that this price corresponds to the level of market prices. Otherwise, if the regulatory authorities prove that the actual price of the goods transferred to the founder as payment of dividends differs from the market price by more than 20%, then the tax will be calculated based on the latter.
In accounting, the transfer of goods to the founder on account of dividends due to him is reflected by the entry (Instructions for the use of the chart of accounts for accounting financial and economic activities of organizations, approved by order of the Ministry of Finance of Russia dated October 31, 2000 No. 94n, hereinafter referred to as Instruction No. 94n):
- Debit 84 Credit 70 (75.2)
- reflects the debt to the participant for dividends due (account 70 is used if the founder is an employee of the organization, account 75.2 - if the founder does not work in the organization); - Debit 62 Credit 90.1
– goods were transferred to the founder on account of dividends due; - Debit 90.02 Credit 41
– the cost of the transferred goods is written off; - Debit 90.03 Credit 68
– VAT is charged on the transferred goods; - Debit 70 (75.2) Credit 62
– reflects the offset of the transferred goods against dividends.
From the founder (host)
:
When paying income in the form of dividends to an individual, your organization is recognized as a tax agent. The organization calculates personal income tax on the amount of accrued dividends (paid in kind), calculated according to the formula given in paragraph 5 of Article 275 of the Tax Code of the Russian Federation. The tax rate on income in the form of dividends is set at 9% (clause 1, clause 1, article 208, clause 1, article 209, clause 1, article 211, clause 2, article 214, clause 4, article 224 Tax Code of the Russian Federation).
The amount of tax on income in the form of dividends subject to withholding at the source of payment is reflected by the entry: Debit 75.2 Credit 68.
If the founder is an employee of the organization, then personal income tax on dividends can be withheld by the organization when paying him the next salary. In this case, the amount of personal income tax withheld from the founder will be reflected in the accounting of your organization by the posting: Debit 70 Credit 68.
For more information about calculating personal income tax on dividends in 1C:Enterprise, read the reference book “Personnel records and settlements with personnel in 1C programs” in the “Personnel and remuneration” section in the 1C:ITS information system
2. Free transfer of goods from your organization to an individual (founder).
In this case , in the accounting of your organization (transferring party)
:
- When transferring goods free of charge, its value is written off as other expenses. In this case, an entry is made to the debit of subaccount 91.02 and the credit of account 41 (clause 11 of PBU 10/99 “Organizational expenses”, approved by order of the Ministry of Finance of Russia dated 05/06/1999 No. 33n, Instruction No. 94n);
- for the purpose of calculating profit tax, the value of gratuitously transferred property and expenses associated with such transfer are not taken into account for profit tax purposes (clause 16 of Article 270 of the Tax Code of the Russian Federation);
- For the purposes of calculating VAT, the gratuitous transfer of goods is a sale and is subject to VAT. The amount of VAT is reflected in the accounting record: Debit 91.02 Credit 68 (clause 11 PBU 10/99 “Organizational expenses”, approved by order of the Ministry of Finance of Russia dated 05/06/1999 No. 33n, clause 1 clause 1 article 146 of the Tax Code of the Russian Federation, Instruction No. 94n).
Please note that if goods are received free of charge by an individual who is not registered as an individual entrepreneur, then your organization transferring the goods is a tax agent for personal income tax.
From the founder (host)
:
The market value of goods transferred free of charge is included in the tax base for calculating personal income tax as income received in kind (clause 1 of Article 211 of the Tax Code of the Russian Federation). The personal income tax rate for such income is 13%.
In the 1C:ITS information system you can get even more information:
- on the calculation of VAT upon gratuitous transfer and on its reflection in “1C:Enterprise” - in the directory “Accounting for Value Added Tax” in the “Accounting and Tax Accounting” section;
- about expenses that do not reduce the tax base for income tax - in the directory “Organizational Income Tax” in the “Taxes and Contributions” section.
3. Any fact of transfer of goods into the ownership of another person (free of charge or as dividends) is documented, as a general rule, with shipping documents (waybill, waybill), drawn up in accordance with the requirements of the current legislation of the Russian Federation.
The 1C:ITS information system is updated every day and contains ready-made advice on accounting, tax and personnel records. It is quite possible that the answers to the specific practical questions that you are currently looking for are already in the “Auditor Answers” section of the 1C:ITS Information System. And in order not to miss the latest expert advice and other useful information, you can subscribe to the free newsletter: https://its.1c.ru/news/subscription.php
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Accounting for gratuitous transfers in accounting
The gratuitous acceptance of the property of a legal entity must necessarily be reflected in the accounting documentation.
The transferred item is accepted as a fixed asset at its original cost. The initial cost is defined as the market value on the day of acceptance for accounting, including the amounts spent on delivery of the asset, its registration, bringing it into a condition suitable for use, and other costs.
The following entries must be made:
- enter the value of assets in debit 08, account 98 “Gratuitous receipts”;
- expenses spent on their acceptance, according to debit 08, account 60 “Related expenses”.
Drawing up a contract for the gratuitous transfer of property
How is the deal going?
An agreement on the gratuitous transfer of property between organizations must be drawn up in writing.
- If a thing is transferred between a commercial and non-profit organization, then the concluded agreement may be called a gift agreement or a gratuitous transfer agreement. In this case, the item is transferred irrevocably; the other party receives nothing in return for what was transferred. The party receiving it becomes the owner of the transferred item.
- If the parties to the transaction are commercial legal entities or commercial organizations, or the parties have agreed on the return of the transferred property, then in this case a gratuitous use (loan) agreement is concluded. In such an agreement, the parties stipulate that the thing is transferred to the other party for a time. The period for which the thing is transferred can either be stipulated in the contract indicating a specific date, or it can be stated that what is transferred under the contract is returned at the request of the transferring party. Upon expiration of the period established by the parties, or at the request of the transferring party, the item transferred under the contract must be returned. The previously transferred item must be returned in the same condition in which it was transferred, taking into account wear and depreciation. The owner of the transferred thing remains the party that transferred it.
Good to know! The agreement is concluded by managers or other persons who are vested with appropriate authority. If this is provided for in the text of the agreement, then it is sealed by the parties. An act of acceptance and transfer of property, which is an integral part of it, is drawn up along with the agreement.
In some cases, the transfer requires the consent of the founders, the management body of the organization or the owner of the property. Such consent may also be required for the acceptance of property. Whether such consent is required in a particular case must be determined by studying the constituent documents of the organizations participating in the transaction.
If such consent is not obtained, then the transaction may subsequently be declared invalid, the transferred item may be taken away, and even a fee may be charged for the entire period of use of the item.
Lawyers advise! If real estate is transferred, the party receiving it is obliged to register the transfer of the corresponding right to it with the Rosreestr authorities. The transfer of vehicles and other property is also subject to state registration, if registration of the transfer of rights is provided for by law.
Required documents
To draw up a transfer agreement you need:
- details of legal entities;
- statutory documents;
- data of managers, documents confirming their powers;
- documents confirming the powers of authorized representatives (if the agreement is not signed by the manager);
- documents confirming the right to the transferred item;
- consent of authorized persons (bodies) to the transfer and (or) acceptance of property (if necessary);
- details of legal entities.
Agreement on gratuitous transfer of property - sample
To summarize what has been said, we can come to the conclusion that the gratuitous transfer of property between legal entities has two main forms: donation, i.e. the thing is transferred free of charge and irrevocably, and transfer for temporary free use (loan).
Good to know! If the parties to the transaction are commercial organizations, then donation between them is prohibited by law in order to protect their creditors, founders, and property owners.
If there is a need for a gratuitous transfer of property between commercial organizations, then it is necessary to conclude a loan agreement, in which it is indicated that the thing is transferred to the other party for temporary possession and use. The loan may have a perpetual nature. The ownership of the transferred item remains with the transferring party.
In all other cases, the parties are independently free to choose the type of agreement - donation or loan.
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How to correctly transfer property from the company to the founder
Tax Code of the Russian Federation, if it is impossible to withhold from the taxpayer the calculated amount of tax, the tax agent within one month from the moment this circumstance arises, notifies the tax authority at the place of his registration in writing about this fact. Taxation of the income of a company participant received in kind from the distribution of the company’s property remaining after settlements with creditors is carried out at a rate of 13% (clause 1 of Article 224 of the Tax Code of the Russian Federation). Add to Bookmarks Print The material presented in this article is provided for informational purposes only and may not be applicable to your particular situation and should not be taken as a guarantee of future results. For example, you can request price lists for the same assets from other organizations or use information from the Internet, printed publications, and other sources. <3 Approved by Order of the Ministry of Finance of Russia dated May 6, 1999 N 32n. Thus, in paragraph 29 of the Guidelines for accounting OS <4, the following options are proposed for confirming the current market value: - data on prices for similar objects received in writing from manufacturing organizations; - information on price levels available from state statistics bodies , trade inspections, as well as in the media and specialized literature; - expert opinions (for example, opinions of appraisers) on the value of individual objects.
<4 Approved by Order of the Ministry of Finance of Russia dated October 13, 2003 N 91n.
Important
Since the company has one participant, then, in our opinion, based on the decision of the sole founder of the company on the distribution of property remaining after liquidation, the non-residential premises will be transferred to this person after settlements with creditors have been made for the claims they have presented. Let us note that in judicial practice, the transfer of property to the sole participant of the company - the founder, on the basis of the decision of the specified person in relation to the property remaining after the liquidation of the company, is recognized as an appropriate basis for the emergence of ownership of this property by the sole participant of the company (Resolution of the Sixteenth Arbitration Court of Appeal dated 07.12.2012 in case No. A63-6282/2012; Resolution of the Eighteenth Arbitration Court of Appeal dated 06/09/2012 No. 18AP-4952/12).
