Postings for gratuitous financial assistance from the founder or director

Participants, including founders or shareholders, can provide financial assistance to their organization. When necessary, replenish working capital to prevent bankruptcy and cover losses. There are several ways, usually this is:

• loan;
• gratuitous transfer of property, including money, into the ownership of the organization;
• transfer of property for free use, that is, a loan.

If we are talking about an LLC, then its participant can provide assistance in the form of a contribution to property or an additional contribution to the authorized capital.

To quickly understand each registration option, understand the accounting features and restrictions associated with each type of financial assistance, take a look at the table.

Help in kind

The participant can provide financial assistance in non-monetary form. That is, transfer fixed assets, materials, goods, and intangible assets to the organization. The accounting procedure in this case depends on the type of property. For more information, see:

• How to register and record the receipt of fixed assets free of charge;
• How to record the receipt of materials in accounting;
• How to reflect the purchase of goods in accounting;
• How to reflect the acquisition (creation) of a trademark in accounting.

Help with money

If financial assistance from a participant is received in cash, then the accounting procedure depends on the period in which it was received:

• during the reporting year - for any purpose;
• at the end of the reporting year - to cover the loss generated in account 84 “Retained earnings (uncovered loss)”.

Include the money received from the participant during the year as other income. Make a note in your accounting:

Debit 50 (51) Credit 91-1

– reflects the gratuitous receipt of money from the participant.

Do not use Account 98-2 “Gratuitous receipts” when receiving money. It is intended to account for income from gratuitous receipts of non-monetary assets only. This conclusion can be made in the Instructions for the chart of accounts.

An example of how financial assistance provided by the founder in cash is reflected in accounting

In March of this year, the founder of Alpha LLC A.V. Lvov provided financial assistance to the organization in cash. The purpose of financial assistance is to replenish the organization’s working capital, amount – 500,000 rubles. The money arrived in the organization’s bank account on March 15.

An entry was made in Alpha's accounting records.

March 15th:

Debit 51 Credit 91-1 – 500,000 rub. – financial assistance was received from the founder.

Loss Coverage

If money is received from a participant to repay a loss generated at the end of the reporting year, do not use account 91.

As a rule, the decision of participants, including founders or shareholders, to provide financial assistance to cover losses is made after the end of the reporting year, but before the approval of the annual financial statements. Such a decision is recognized as an event after the reporting date. Financial assistance is immediately charged to account 84 “Retained earnings (uncovered loss).” In this case, no entries are made in the accounting records of the reporting period. This follows from paragraphs 3 and 10 of PBU 7/98.

To account for incoming funds, use account 75 “Settlements with founders”. It is worth opening a subaccount for it “Funds of participants aimed at repaying losses.”

The receipt of financial assistance to cover the loss generated at the end of the reporting year should be reflected in accounting entries.

1. On the date when the decision on financial assistance is documented by the minutes of the general meeting of participants, including shareholders, or by the decision of the sole founder:

Debit 75 subaccount “Funds of participants aimed at repaying losses” Credit 84

– a decision was made to repay the loss at the expense of the participants’ funds.

2. On the date of receipt of money:

Debit 50 (51) Credit 75 subaccount “Funds of participants aimed at repaying losses”

– funds were received from participants to cover losses generated at the end of the reporting year.

This procedure follows from the Instructions for the chart of accounts (account 75).

Replenishment of the reserve fund

Situation: how to reflect in accounting the receipt of gratuitous monetary assistance from a participant (founder, shareholder) to replenish the reserve fund (capital)?

The reserve fund can only be replenished from retained earnings. Therefore, first reflect financial assistance as part of other income. At the end of the year, after summing up financial activities, include these amounts in the reserve fund.

There is no other way to form a reserve fund using financial assistance. Therefore, first reflect the funds received from participants in account 91-1 as part of other income.

Turnovers in the debit of account 91-1 “Other income” will increase the organization’s net profit generated on account 99 “Profits and losses”.

At the end of the year, after summing up the results for account 84 “Retained earnings”, form a reserve fund from retained earnings.

In accounting, reflect all this with the following entries:

Debit 50 (51) Credit 91-1

– reflects the gratuitous receipt of money from the participant (founder, shareholder);

Debit 91-1 Credit 99

– profit is reflected at the end of the year;

Debit 99 Credit 84

– reflects net profit at the end of the year;

Debit 84 Credit 82

– contributions have been made to the reserve fund (capital) according to the standards approved by the charter.

This conclusion follows from the Instructions for the chart of accounts (accounts 84, 82).

If, after increasing the reserve capital (fund), its value exceeds the restrictions established in the organization’s charter, amend the charter.

All this follows from paragraph 7 of PBU 9/99, paragraph 1 of Article 35 and Article 12 of the Law of December 26, 1995 No. 208-FZ, paragraph 1 of Article 30, paragraph 4 of Article 12 of the Law of February 8, 1998 No. 14-FZ , Instructions for the chart of accounts (accounts 84, 99) and is confirmed in the letter of the Ministry of Finance of Russia dated August 23, 2002 No. 04-02-06/3/60.

The procedure for accounting for gratuitous assistance from the founder

There are two main goals for providing gratuitous financial assistance: replenishing working capital or increasing the capital of an enterprise.

Replenishment of working capital

According to PBU 9/99, gratuitous assistance is considered other income in accounting.

The receipt of monetary assistance from the founder is reflected by posting Dt 50(51) Kt 91.1, VAT is not allocated, since the transaction is not recognized as a sale. Based on clause 1 of Article 251 of the Tax Code of the Russian Federation, gratuitous assistance from a founder who owns more than 50% of the authorized capital is not included in income when calculating tax. Therefore, a difference arises in accounting, forming a permanent tax asset (PBU 18/02), which is reflected by posting Dt68 Kt99.

If the founder owns a share of 50% or less, gratuitous assistance should be recognized as income in tax accounting.

Account 98 “Gratuitous receipts” is not used when receiving financial assistance. It can take into account the amount of gratuitous receipt of non-monetary assets. It is important to know that assistance in the form of property may not be recognized as income in tax accounting only if the company does not transfer it to third parties within a year.

Situation: There are three founders in the Krona company, the shares are divided equally between them. Founder No. 3 transferred on June 12, 2016. to the Company's account gratuitous assistance for payment of wages in the amount of 1.5 million rubles. "Krona" 06/15/2016 paid employees salaries in the amount of 1.305 million rubles, paid personal income tax in the amount of 0.195 million rubles.

Financial assistance from the founder - the entries will be reflected in the accounting records:

Additionally, we will reflect income tax in tax accounting:

Increase in capital (by forming additional or reserve capital)

It is permissible to form a reserve fund at the expense of retained earnings; accordingly, the reserve capital is increased when summing up account 84 “Retained earnings” at the end of the year (letter of the Ministry of Finance dated August 23, 2002 No. 04-02-06/3/60). On this basis, the founder’s gratuitous contributions must initially be recorded in account 91.1.

Free financial assistance from the founder of the wiring:

If, after increasing the reserve capital, its size exceeds the restrictions established by the charter, then it is necessary to make appropriate changes to it (Article 12, Article 30 of Law No. 14-FZ “On LLC” dated 02/08/1998; Article 35 of Law No. 208-FZ from December 26, 1995)

If financial assistance is provided to form additional capital, the accountant will reflect this by posting Dt51 (50) Kt83.

To document business transactions, it is necessary to draw up a decision of the founder (minutes of the general meeting), which indicates the amount of financial assistance, the transferred property (if the assistance is not monetary) and its purpose. If this condition is met, tax risks are reduced to zero.

When financial assistance is not taken into account when calculating income tax

In some cases, financial assistance does not need to be taken into account as income when calculating income tax. Such situations are named in the table below.

If financial assistance received from a participant, including a founder or shareholder, does not increase the base for calculating income tax, a permanent difference arises in accounting, with which a permanent tax asset must be calculated (clause 7 of PBU 18/02).

Financial assistance to increase net assets is not taken into account in income. This rule also applies to situations where, at the request of participants, founders or shareholders, the company’s debt to them is reduced or terminated. For example, if a company has not fulfilled its obligations to a participant under a loan agreement, he can transfer the loan to increase net assets. Thus, he terminates the company’s obligations under the agreement (letter of the Federal Tax Service of Russia dated July 20, 2011 No. ED-4-3/11698).

At the same time, interest accrued on such a loan and written off through debt forgiveness is not recognized as property received free of charge in order to increase net assets. In fact, these funds are not transferred to the public. Therefore, the debtor includes them in non-operating income on the basis of paragraph 18 of Article 250 of the Tax Code of the Russian Federation. Such clarifications are given in the letter of the Federal Tax Service of Russia dated May 2, 2012 No. ED-3-3/1581.

An example of reflection in accounting and taxation of fixed assets received free of charge from the founders to increase net assets. The organization applies a general taxation system

Based on the results of 2015, Torgovaya LLC revealed that the amount of net assets is less than the authorized capital.

In March 2021, one of the participants - A.S. Glebova - decided to make a property contribution to the society in order to increase net assets - a Sony VAIO VPC-L22Z1R/B computer worth 78,000 rubles. In the same month, at the general meeting of participants, this decision was approved and enshrined in the minutes. The computer was handed over to Glebova to the company and put into operation the same month.

In March, the following entries were made in the accounting records of Hermes:

Debit 08 Credit 83 subaccount “Glebova’s contribution to increasing net assets” – 78,000 rubles. – fixed assets received from Glebova to increase net assets were taken into account;

Debit 01 subaccount “Fixed asset in operation” Credit 08 – 78,000 rub. – the fixed asset was accepted for accounting and put into operation.

When calculating income tax, the cost of a computer received free of charge is not taken into account (subclause 3.4, clause 1, article 251 of the Tax Code of the Russian Federation).

Situation: is it possible to take into account expenses paid with financial assistance from the founder when calculating income tax? The founder's share in the authorized capital exceeds 50 percent.

Yes, you can.

After the money received free of charge from the founder is capitalized, it becomes the property of the organization. Therefore, they spend them as their own funds. Consequently, costs paid with these funds can be taken into account when calculating income tax. Provided, of course, that the costs are economically justified and documented (clause 1 of Article 252 of the Tax Code of the Russian Federation).

A similar point of view is reflected in letters of the Ministry of Finance of Russia dated March 20, 2012 No. 03-03-06/1/142, dated June 29, 2009 No. 03-03-06/1/431, dated January 21, 2009 No. 03 -03-06/1/27 and confirmed by arbitration practice (see, for example, decisions of the FAS of the North-Western District dated April 12, 2007 No. A56-13199/2006, Volga-Vyatka District dated August 28, 2006 No. A29- 13543/2005a).

An example of how expenses paid from financial financial assistance from the founder are reflected in accounting and taxation. The founder's share in the authorized capital of the organization is 55 percent

In February, the founder of Torgovaya LLC A.V. Lvov provided the organization with free financial assistance in cash. The money was provided to replenish our own working capital. The amount of assistance is 150,000 rubles. In the same month, the money received was used to purchase materials. The cost of purchased materials is 150,000 rubles. (including VAT – RUB 22,881). In March, the materials were released into production.

The organization uses the accrual method. Income tax is paid monthly.

Postings have been made in the organization's accounting.

In February:

Debit 51 Credit 91-1 – 150,000 rubles. – received funds from the founder;

Debit 68 subaccount “Calculations for income tax” Credit 99 – 30,000 rubles. (RUB 150,000 × 20%) – a permanent tax asset is reflected;

Debit 60 Credit 51 – 150,000 rub. – funds were transferred to the materials supplier;

Debit 10 Credit 60 – 127,119 rub. – materials are capitalized;

Debit 19 Credit 60 – 22,881 rub. – input VAT is reflected;

Debit 68 subaccount “Calculations for VAT” Credit 19 – 22,881 rub. – accepted for deduction of input VAT.

In March:

Debit 20 Credit 10 – 127,119 rub. – materials are written off for production.

When calculating income tax in February, the Hermes accountant did not include funds received from the founder as income. When calculating income tax in March, the cost of materials written off for production was taken into account as expenses.

Free financial assistance from the founder: taxation

In tax accounting, profit in the form of gratuitous financial assistance received from a legal entity or individual is included in non-operating income subject to tax. But, unlike accounting, gratuitous receipts from the founder are not always recorded in tax accounting. This depends on the size of the share in the authorized capital owned by the founder. Art. , 250, 251 of the Tax Code of the Russian Federation list cases when contributions transferred free of charge are not subject to taxation:

This procedure is acceptable for enterprises of all forms of ownership. The preferential category of gratuitous financial assistance from the founder in terms of taxation includes an interest-free loan agreement, since no interest is accrued on the money, and the loan is returned at the end of the loan period. The company had no profit as such, which means that no tax is charged on the loan amount.

When and how financial assistance should be included in income when calculating income tax

When none of the conditions for exemption from taxation of the received financial assistance are met, take it into account as part of non-operating income (clause 8 of Article 250 of the Tax Code of the Russian Federation).

Recognize income:

• on the day the money is received in the current account or at the cash desk;
• on the date of receipt of the property (for example, execution of the transfer and acceptance certificate).

These rules apply both to the accrual method and to the cash method (subclauses 1 and 2, clause 4, article 271, clause 2, article 273 of the Tax Code of the Russian Federation).

If financial assistance received from a participant (founder, shareholder) increases the base for calculating income tax, but is not reflected in the income in accounting, a permanent difference is formed, with which a permanent tax liability must be calculated. This follows from the provisions of paragraphs 4 and 7 of PBU 18/02. For example, such a situation may arise when receiving money to pay off a loss formed at the end of the reporting year, or when receiving property for free use.

An example of reflection in accounting and taxation of funds received free of charge from the founders to pay off losses at the end of the reporting year. The organization applies a general taxation system

Based on the results of 2015, Torgovaya LLC received a loss of 1,000,000 rubles. The founders of Hermes are A.V. Lvov (share in the authorized capital of Hermes is 51%) and A.S. Glebova (share – 49%).

In March 2021 (before the annual financial statements were approved), the founders decided to cover the resulting loss from their own funds in the following proportions:

• Lviv - in the amount of 510,000 rubles;
• Glebova - in the amount of 490,000 rubles.

In the same month, money from the founders arrived in the Hermes bank account.

In March 2021, the following entries were made in the accounting records of Hermes:

Debit 75 subaccount “Funds from Lvov aimed at repaying the loss” Credit 84 – 510,000 rubles. – a decision was made to repay part of the loss to Lvov;

Debit 75 subaccount “Glebova’s funds aimed at repaying the loss” Credit 84 – 490,000 rubles. – a decision was made to repay part of Glebova’s loss;

Debit 51 Credit 75 subaccount “Funds from Lvov aimed at repaying the loss” – 510,000 rubles. – money was received from Lvov to repay the loss;

Debit 51 Credit 75 subaccount “Glebova’s funds aimed at repaying the loss” - 490,000 rubles. - money was received from Glebova to repay the loss.

In accounting, when receiving funds from the founders to repay a loss, income does not arise. When calculating income tax, income includes funds received from Glebova (since the founder’s share is less than 50%). The result is a permanent difference and a permanent tax liability:

Debit 99 subaccount “Continuous tax liabilities” Credit 68 subaccount “Calculations for income tax” - 98,000 rubles. (RUB 490,000 × 20%) – a permanent tax liability is reflected.

Situation: is it necessary to include gratuitous assistance received from the founding commercial organization in the calculation of income tax? The amount of assistance provided exceeds RUB 3,000.

Yes need. But only if the conditions are not met that allow financial assistance not to be taken into account in income.

The fact is that, regardless of the amount of gratuitous assistance received from the founder, it does not need to be taken into account in income only in strictly defined situations. This follows from the provisions of paragraph 8 of Article 250, subparagraphs 11 and 3.4 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation.

In relation to gratuitous assistance, the amount of which exceeds 3,000 rubles, the possibility of applying this procedure is confirmed by arbitration practice (see, for example, decisions of the Federal Antimonopoly Service of the North-Western District dated December 23, 2005 No. A56-4986/2005, Volga District dated December 6, 2007 No. A65-5602/2007-SA1-7).

Attention: in a situation where gratuitous assistance is provided by the founding organization in the amount of more than 3,000 rubles, there is a risk that the recipient may be forced to take the assistance into account in income when calculating income tax.

Thus, according to Article 575 of the Civil Code of the Russian Federation, a gift between commercial organizations in the amount of more than 3,000 rubles. forbidden. And based on the provisions of the Tax Code, it follows that such transactions are allowed. The concept of property transferred or received free of charge for the purposes of calculating income tax is defined in paragraph 2 of Article 248 of the Tax Code of the Russian Federation. However, no cost restrictions have been established in relation to this property.

In a number of cases, it was proven in the courts that when calculating income tax, amounts over 3,000 rubles. still needs to be taken into account in income. Since assistance from one organization to another, in order to be exempt from taxation, must fulfill not only the conditions defined in the Tax Code, but also those provided for in Article 575 of the Civil Code of the Russian Federation. For example, resolutions of the Federal Antimonopoly Service of the Moscow District dated December 5, 2005 No. KA-A40/11321-05, dated June 30, 2005 No. KA-A40/3222-05.

Therefore, it is safer to formalize the funding received from the founder as an interest-free loan agreement or (if we are talking about an LLC) as a contribution to property.

Formation of authorized capital in 1C 8

• Contribution of fixed assets. For example, the founder decided to repay the debt on the authorized capital in the form of equipment that can be immediately put into operation. In this case, two entries will be generated: Dt 08 – Kt 75.01 (repayment of debt on the authorized capital);
• Dt 01 – Kt 08 (commissioning of equipment).

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Please note that if the debt on the authorized capital is repaid not in money, an assessment of this property must be carried out. The founders have the right to produce it themselves if the cost does not exceed 20,000 rubles. Otherwise, an external appraiser must be involved.

VAT

When calculating VAT, do not take into account funds received from a participant, including a founder or shareholder, as gratuitous assistance. This is explained by the fact that the receipt of money is subject to VAT only if it is associated with payments for goods, works or services sold (subclause 2, clause 1, article 162 of the Tax Code of the Russian Federation).

Providing gratuitous financial assistance in cash is not considered a sale. A similar point of view is reflected in the letter of the Ministry of Finance of Russia dated June 9, 2009 No. 03-03-06/1/380.

Situation: is it possible to deduct VAT on goods, works or services that were purchased using funds received free of charge from a participant (founder, shareholder)?

Yes, you can.

The conditions under which an organization has the right to deduct input VAT are defined in Articles 171 and 172 of the Tax Code of the Russian Federation. The buyer’s right to deduct VAT does not depend on the sources from which goods, works or services were purchased. Therefore, in the situation under consideration, input VAT can be deducted on a general basis.

A similar point of view is reflected in letters of the Ministry of Finance of Russia dated June 29, 2009 No. 03-03-06/1/431, dated June 6, 2007 No. 03-07-11/152 and confirmed by arbitration practice (see, for example, resolutions FAS Volga-Vyatka District dated August 28, 2006 No. A29-13543/2005a, dated November 17, 2005 No. A29-933/2005a, Moscow District dated March 12, 2008 No. KA-A40/1240-08).

Obtaining property rights from the founder under a gratuitous use agreement

The sole founder of the LLC transferred the warehouse premises to the LLC under a free use agreement. Is it possible not to take into account non-operating income for profit tax purposes on the basis of Art. 251 of the Tax Code of the Russian Federation?

In accordance with paragraph 1 of Art. 689 of the Civil Code of the Russian Federation under a free use agreement

(
loan agreement
) one party (the lender) undertakes to transfer or transfers the thing
for free
temporary use to the other party (the borrower), and the latter undertakes
to return the same thing in the condition
in which it received it, taking into account normal wear and tear or in the condition due to agreement.

That is, the loan agreement is gratuitous

.

According to Art.
690 of the Civil Code of the Russian Federation, a commercial organization does not have the right
to transfer property
for free use to a person who is its founder
, participant, manager, member of its management or control bodies.

Consequently, a participant in a commercial organization has the right to transfer property to the organization for free use

.

Based on clause 8 of Art. 250 of the Tax Code of the Russian Federation on non-operating income

taxpayer, income is recognized in the form of gratuitously received property (work, services) or property rights, except for the cases specified in
Art. 251 Tax Code of the Russian Federation
.

In accordance with clause
11 clause 1 art. 251 of the Tax Code of the Russian Federation, when determining the tax base, income
in the form of
property
received by a Russian organization free of charge, in particular, 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 faces.

In this case, the property received is not recognized as income.

for tax purposes
only if,
within one year from the date of its receipt, the specified property (
except
for funds) is not transferred to third parties.

It should be borne in mind that in accordance with paragraph 2 of Art. 38
of the Tax Code of the Russian Federation, property
in the Tax Code of the Russian Federation refers to types of objects of civil rights (
with the exception of property rights
) related to property in accordance with the Civil Code of the Russian Federation.

That is, Art.
251 of the Tax Code of the Russian Federation does not provide for the exclusion from the tax base of income in the form
of the value of gratuitously
received property rights
, since property rights do not relate to property.

Thus, the organization that received

from its founder, under an agreement for gratuitous use, the right to use property (
that is, property right
),
takes into account for tax purposes the profits of organizations, income
in the form of a gratuitous right to use this property, the amount of which is determined
on the basis of market prices
, taking into account the provisions of
clause 8 of Art. 250 Tax Code of the Russian Federation
.

This is confirmed by the Ministry of Finance of the Russian Federation in a letter dated July 10, 2017 No. 03-03-06/1/43596.

Clause 8 art.
250 of the Tax Code of the Russian Federation
establishes that when receiving property (work, services) free of charge, income is assessed
based on market prices
determined taking into account the provisions
of Art. 105.3 of the Tax Code of the Russian Federation
, but not lower than the residual value determined in accordance with Chapter 25 of the Tax Code of the Russian Federation - for depreciable property and not lower than the costs of production (acquisition) - for other property (work performed, services provided).

Pricing information must be confirmed

by the taxpayer - recipient of property (work, services)
documented or through an independent assessment
.

In a letter dated February 25, 2015 No. 03-03-05/9332, the Ministry of Finance of the Russian Federation explained that the established clause 8 of Art. 250 Tax Code of the Russian Federation

the principle of determining income when receiving property free of charge, which consists in its assessment based on market prices, determined taking into account the provisions of
Art.
105.3 of the Tax Code of the Russian Federation , is also applicable when assessing property rights, including the right to use a thing.

A taxpayer who receives property for gratuitous use under an agreement includes in non-operating income income in the form of a gratuitously received right to use property, determined on the basis of market prices for the rental of identical property

.

According to Art. 40 Tax Code of the Russian Federation

For tax purposes, the price of goods, works or services specified by the parties to the transaction is accepted.

Until proven otherwise, this price is assumed to be in line with market prices.

At the same time, tax authorities, when monitoring the completeness of tax calculations, have the right to check the correctness of the application of prices for transactions between related parties.

Thus, an organization that receives property for free use under an agreement includes in non-operating income income in the form of a freely received right to use property

, determined
based on market prices for the rental of identical property
.

The Presidium of the Supreme Arbitration Court of the Russian Federation made the same conclusion

in paragraph 2 of Information Letter dated December 22, 2005 No. 98.

According to Art. 105.1 Tax Code of the Russian Federation

if the peculiarities of relations between persons may influence the conditions and (or) results of transactions made by these persons, and (or) the economic results of the activities of these persons or the activities of the persons they represent, these persons are recognized as
interdependent
for tax purposes.

To recognize the mutual dependence of persons, the influence that may be exerted due to the participation of one person in the capital of other persons is taken into account, in accordance with an agreement concluded between them, or if there is another opportunity for one person to determine the decisions made by other persons.

are recognized as interdependent persons
if such an individual
directly and (or) indirectly
participates
in such an organization and
the share of such participation is more than 25%
(
clause 2, clause 2 of Article 105.1 of the Tax Code of the Russian Federation
).

Therefore, in your situation, the parties to the contract are recognized as interdependent persons

.

In letter dated October 18, 2012 No. 03-01-18/8-145, the Ministry of Finance of the Russian Federation explained that transactions between related parties can be divided into two groups

: controlled, recognized as such subject to the provisions
of Art.
105.14 of the Tax Code of the Russian Federation , and other transactions between related parties.

Regarding controlled transactions

Taxpayers are obliged to notify the tax authorities about the completion of such transactions and submit the relevant documentation when the Federal Tax Service of the Russian Federation conducts an audit of the completeness of calculation and payment of taxes in connection with transactions between related parties.

In turn, according to paragraph 1 of Art.
105.17 of the Tax Code of the Russian Federation,
verification of the completeness of calculation and payment of taxes in connection with transactions between related parties is carried out by the Federal Tax Service of the Russian Federation.

At the same time, monitoring the compliance of prices applied in controlled transactions

, market prices
cannot be the subject of on-site and desk inspections
.

In cases of transactions between related parties that do not meet the criteria of controlled

, in which the calculation of the tax base is carried out on the basis of the provisions of individual articles of part two of the Tax Code of the Russian Federation based on prices determined in accordance with
Art. 105.3 of the Tax Code of the Russian Federation
,
monitoring the compliance of prices
applied in such transactions with market prices
may be the subject of on-site and desk audits
.

simplified tax system

When determining simplified income, the same income is not taken into account as when calculating income tax. This means that financial assistance received from a dependent founder or someone who owns more than 50 percent of the authorized capital of the recipient is also not taken into account when calculating the single tax. As well as assistance to increase net assets. This procedure is established by Article 346.15, paragraph 8 of Article 250, subparagraphs 3.4 and 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation and letters of the Ministry of Finance of Russia dated April 18, 2011 No. 03-03-06/1/243, dated June 9, 2009 No. 03-03-06/1/380. Although the above letters are devoted to the procedure for accounting for financial assistance when calculating income tax, their provisions can also be extended to the calculation of a single tax under simplification.

If the specified conditions are not met, then assistance from a participant, including a founder or shareholder, should be taken into account as part of non-operating income (Article 346.15 and Clause 8 of Article 250 of the Tax Code of the Russian Federation).

Recognize income:

• on the day the money is received in the current account or at the cash desk;
• on the date of receipt of the property (for example, execution of the transfer and acceptance certificate).

This follows from the provisions of paragraph 1 of Article 346.17 of the Tax Code of the Russian Federation.

Providing free assistance to the founder with a share of less than 50% of the authorized capital

Along with paid assistance, founders can make gratuitous contributions. The transfer of property by the founder when he owns more than 50% shares in the management company is not taxed in accordance with the provisions of clause 11 of Art. 251 Tax Code of the Russian Federation. The status of the founder (legal or individual) does not matter.

Free assistance from the founder if he owns a 50% or smaller share in the management company is subject to income tax in accordance with clause 8 of Art. 250 Tax Code of the Russian Federation. The tax base is the market valuation of the transferred property.

OSNO and UTII

If financial assistance is received and the conditions for its exemption from taxation are not met, then when calculating income tax, it must be taken into account in non-operating income.

The current tax legislation does not contain a mechanism for distributing non-operating income between different types of activities. If you cannot determine whether non-operating income belongs to a particular type of activity, then its entire amount should be included in the tax base for income tax and tax should be charged at a rate of 20 percent. This position is adhered to by the Russian Ministry of Finance in letter dated March 15, 2005 No. 03-03-01-04/1/116.

Return assistance from the founder

The most common practice in practice is to formalize assistance from the founder through a loan agreement. The peculiarity of this method is the need to return the amount of money later. But if you wish, you can also avoid a return by applying, for example, for debt forgiveness. So, what are the consequences of such an agreement?

Interest-free loan

Let's start with the fact that the contract can be interest-bearing or interest-free. If the loan agreement does not contain a clause on interest or the absence thereof, then the loan is considered by default to be compensated, that is, interest-bearing. Having received such a loan, the company is obliged to accrue interest at the key rate (clause 1 of Article 809 of the Civil Code of the Russian Federation). If you plan to take out an interest-free loan, then the non-accrual clause must be written into the contract.

There are no taxes here, as in the case of gratuitous assistance. The amounts received under the loan agreement do not form income for the organization (clause 10, clause 1, article 251 of the Tax Code of the Russian Federation).

There is also no “ephemeral” income in the form of material benefits from interest-free use of borrowed funds. Firstly, in the list of non-operating income given in Art. 250 of the Tax Code of the Russian Federation, the material benefit received by the organization from the interest-free use of borrowed funds is not named. Secondly, in order for a certain amount to correspond to income, it is necessary that the possibility of its assessment be provided for in Chapter 25 of the Tax Code of the Russian Federation (Article 41 of the Tax Code of the Russian Federation). And Chapter 25 of the Tax Code of the Russian Federation does not contain a procedure for assessing income in the case under consideration. Therefore, the material benefit received by the organization from the interest-free use of borrowed funds does not increase the tax base for income tax. The Ministry of Finance adheres to the same opinion, as evidenced, for example, by letters dated 03/23/2017 No. 03-03-RZ/16846, dated 02/09/2015 No. 03-03-06/1/5149.

Interest loan

When formalizing the founder's assistance through an interest-bearing loan agreement, the borrowing company incurs expenses in the form of interest. These expenses, subject to economic justification, are taken into account when taxing profits.

There is one feature here that you should definitely know about so as not to run into trouble during the check. For loans recognized as a controlled transaction, interest expenses are limited. The actual amount of interest can be attributed to expenses only in one case: if this amount is less than the maximum value of the interval of limit values ​​(the procedure for calculating such an interval is given in clause 1.2 of Article 269 of the Tax Code of the Russian Federation). If this condition is not met, the organization will have to take into account the provisions of Section V.1 of the Tax Code of the Russian Federation (clause 1.1 of Article 269 of the Tax Code of the Russian Federation) when attributing the amount of interest to expenses. Using the methods enshrined in Article 105.7 of the Tax Code of the Russian Federation, it will be necessary to check whether the rate applied to the debt obligation corresponds to the market rate.

But the Ministry of Finance is confused in its explanations that it gives on the issue of accounting for interest. In some letters, the department believes that this feature applies only to transactions recognized as controlled (letter dated August 17, 2015 No. 03-03-06/1/47512).

Transactions between related parties are considered controlled if they meet the conditions provided for in Article 105.14 of the Tax Code of the Russian Federation. The company and the founder are interdependent persons if the share of participation of an individual is more than 25% (clause 2, clause 2, article 105.1 of the Tax Code of the Russian Federation). But, in addition to this, the condition on the amount of income must be met. So, for a transaction between related parties to become controlled, it is necessary that the income from it exceed 1 billion rubles in a calendar year. With regard to loan agreements, the amount of income is the amount of interest, and the “body” of the loan itself is not included in the calculation of income (letter of the Ministry of Finance of Russia dated May 23, 2012 No. 03-01-18/4-67). Consequently, a loan transaction between related parties will be considered controlled if the amount of interest received exceeds 1 billion rubles per year. Agree, this rarely happens.

However, in other clarifications, the Ministry of Finance for some reason believes that the peculiarity of accounting for “interest” expenses applies to any transaction between related parties, including one that does not fit the definition of controlled (letters dated 02/09/2016 No. 03-01-18 /6665, dated July 15, 2015 No. 03-01-18/40737). At the same time, from clauses 1 and 1.1 of Art. 269 ​​of the Tax Code of the Russian Federation clearly states that the features established in Article 269 of the Tax Code of the Russian Federation for accounting for interest apply only to transactions recognized as controlled.

The company's accountant will have to decide which position of officials he should follow. But this is not the only catch that a company that has taken a loan from the founder can expect.

Expenses taken into account when taxing profits must be incurred to carry out activities aimed at generating income (clause 1 of Article 252 of the Tax Code of the Russian Federation). This applies to any expense, including interest. Therefore, if a company took a loan from the founder and used it, say, for charitable activities or issuing an interest-free loan to another person, then in such a situation problems may arise during a tax audit. For example, from the letter of the Ministry of Finance of Russia dated April 19, 2011 No. KE-4-3/6250, it follows that if a loan is aimed at charity, then reducing the tax base for income tax on expenses for paying interest on such a loan is impossible, since the provisions of the Tax Code of the Russian Federation do not provided.

However, the likelihood of risks occurring is extremely low. It is quite difficult to trace the movement of raised funds, since all funds (including revenue) are accumulated in one current account. And it is almost impossible to understand that, let’s say, an interest-free loan to an employee was issued not from the company’s revenue, but from the funds that the company received from the founder on an “interest-bearing” loan.

If the founder who provided the loan is a citizen, then when paying interest to him, the organization will have to withhold personal income tax and transfer it to the budget, acting as a tax agent for personal income tax. For the founder, this interest is income subject to personal income tax.