How the document will allow you to save money. If there is debt to companies belonging to the same group, the most obvious way to reduce the “creditor” is to transfer such debt to the status of equity, including through debt forgiveness. From a tax point of view, such debt forgiveness will not lead to an increase in the tax burden due to the use of subclause 3.4 of clause 1 of Article 251 of the Tax Code of the Russian Federation. This rule states that when a debt is forgiven by the founder in order to increase the value of the net assets of a subsidiary, the latter’s income received as a result of such forgiveness is not subject to income tax.

Let us recall that this rule has been in force since 2011, but applies to obligations arising from January 1, 2007 (clauses 1 and 2 of Article 4 of Law No. 409-FZ dated December 28, 2010). This means that the founders can profitably forgive the debts of their “subsidiaries” not only at the present moment, but also reconsider their past tax obligations. This rule applies only to business companies and partnerships. Therefore, non-profit organizations, as well as production cooperatives and unitary enterprises do not have the right to apply it (letter of the Ministry of Finance of Russia dated 06.10.11 No. 03-03-07/39).

The purpose of this benefit is to allow founders to improve the financial performance of their subsidiaries in a tax-free manner. This is important, for example, for attracting financing from third-party investors. Banks and investment companies, when providing financing, preliminarily assess the structure of the borrower's balance sheet. No one will give a loan to a company with negative net assets.

Another possible reason for the increase in net asset value is the prospect of selling a subsidiary. The higher the net asset value, the higher the market value of the shares of the subsidiary. As a result, it becomes possible to sell the business at a higher price.

With a small net asset value, the company may encounter other problems. For example, this indicator is taken into account when calculating the limit for recognizing interest on controlled debt (clause 2 of Article 269 of the Tax Code of the Russian Federation). The higher the net assets, the greater the amount of interest recognized as expense. In addition, legislation prohibits a company from distributing profits and paying dividends if the value of its net assets is less than its authorized capital. Or it will become less as a result of such payment (clause 1, article 29 of the Federal Law of 02/08/98 No. 14-FZ, clause 1 of article 43 of the Federal Law of December 26, 1995 No. 208-FZ). In this case, the assessment of the value of net assets must be carried out quarterly and at the end of the year on the corresponding reporting dates (clause 5 of the Procedure for assessing net assets in joint-stock companies, approved by order of the Ministry of Finance of Russia No. 10n dated January 29, 2003 and the Federal Commission for the Securities Market of Russia No. 03-6/pz). The same Procedure is also used by companies of other organizational and legal forms, in particular LLCs (letters of the Ministry of Finance of Russia dated January 27, 2010 No. 03-02-07/1-27, dated December 7, 2009 No. 03-03-06/1/791) .

Please note that there is a risk of debt forgiveness being reclassified as a gift within a group of companies. And donation between legal entities is a void transaction (subclause 4, clause 1, article 575 of the Civil Code of the Russian Federation) with all the ensuing consequences (clause 8, article 250 of the Tax Code of the Russian Federation). But the Presidium of the Supreme Arbitration Court of the Russian Federation directly recognized the possibility of forgiveness of debt between companies (Resolution No. 2833/10 dated July 15, 2010).

But tax authorities may make another claim. Allegedly, as a result of debt forgiveness, no gratuitous transfer of property occurs, therefore, this operation, in whole or in part (in the amount of interest - letter of the Federal Tax Service of Russia dated 05/02/12 No. ED-3-3/1581@) does not fall under the benefit. But the courts do not agree with this approach (resolution of the Federal Arbitration Court of the West Siberian District dated December 22, 2011 No. A27-4570/2011).

Let us note that previously affiliated companies had the opportunity to transfer assets to each other in a tax-free regime (subclause 11, clause 1, article 251 of the Tax Code of the Russian Federation). However, the new option (subclause 3.4, clause 1, article 251 of the Tax Code of the Russian Federation) has a number of advantages.

Firstly, the size of the participant’s share for using the benefit provided for in subclause 3.4 of clause 1 of Article 251 of the Tax Code of the Russian Federation does not matter (letters of the Ministry of Finance of Russia dated 04.20.11 No. 03-03-06/1/257, dated 03.21.11 No. 03- 03-06/1/160, Federal Tax Service of Russia dated 05/23/11 No. AS-4-3/8157@). Secondly, even if the subsidiary transfers the received property to third parties, it will not lose the right to the benefit (letters from the Ministry of Finance of Russia dated 04/18/11 No. 03-03-06/1/243, dated 02/20/12 No. 03-11-06/ 2/26). Thirdly, the risk of recognizing forgiven interest in the borrower’s income is reduced. Since subclause 3.4 of clause 1 of Article 251 of the Tax Code of the Russian Federation applies not only to property received free of charge, but also to property rights.

Perhaps the only drawback of the new benefit is the restrictions on the number of persons who can use it. It can be used to increase the net asset value of a subsidiary only. While subclause 11 of clause 1 of Article 251 of the Tax Code of the Russian Federation allows the debts of the parent company to be forgiven.

In what form is it compiled? Despite the fact that debt forgiveness can be a unilateral transaction (Article 415 of the Civil Code of the Russian Federation), it is best to draw up a bilateral written agreement between the creditor and the debtor. The agreement is concluded in the same form as the contract under which obligations are terminated (clause 1 of Article 452 of the Civil Code of the Russian Federation).

What must be in the document. This agreement must specify under which agreement the debt was created, its size, repayment date, and for what reason the debtor cannot fulfill its obligations. As well as the focus of debt forgiveness on replenishing the company’s net assets and the business purpose of such replenishment.

Additional security measures. In order to avoid possible claims from tax authorities, it is necessary to fulfill all the requirements of subclause 3.4 of clause 1 of Article 251 of the Tax Code of the Russian Federation. In addition to the agreement, the company should also draw up corporate documents on the basis of which the debt will be forgiven. For example, the minutes or decision of the general meeting of participants or shareholders of the company. Under which property, property or moral rights are transferred to a company to increase the net asset value.

It is also advisable to indicate in the protocol what the purpose of increasing the value of the company's net assets is. With the help of such a document, the company will most likely be able to remove the claims of controllers without bringing the matter to trial.

Also, when using debt forgiveness within a group of companies, it is necessary to evaluate the total tax savings due to the impossibility of taking into account the amount of the debt in the expenses of the forgiving party. Since controllers will consider such a transaction as a gratuitous transfer of funds (clause 16 of article 270 of the Tax Code of the Russian Federation). Therefore, a group of companies should determine the qualifications of such a transaction and the benefit used. If the debtor does not include the amount of debt as income, then the creditor should exclude this amount from expenses for tax purposes.

One option is that the owner, having already officially entered the business, can forgive the company’s debt in order to increase its net assets. This instrument is attractive because it exempts the organization from paying

A contribution in order to increase net assets (NA) is one of the tools for tax-free transfer of property in business, enshrined in paragraphs. 3.4 clause 1 art. 251 of the Tax Code of the Russian Federation. But like other tools, it has its advantages and disadvantages.

For ease of understanding, we list them:

Any participant in the company can make a contribution to net assets: a legal entity or an individual, regardless of the size of the share in the authorized capital (for comparison: a contribution to property on the basis of paragraph 11, paragraph 1, Article 251 of the Tax Code can only be made by a participant with a share of more than 50%) ;

when contributing to a private equity fund, there are no restrictions on the subsequent disposal of property within a year from the date of transfer (one-year limitation in clause 11, clause 1, article 251 of the Tax Code);

property, as well as property and non-property rights (including rights of claim under a loan, etc.) having a monetary value can be transferred;

however, only a participant/shareholder can make a contribution in order to increase the NAV (a “child gift” is not possible - transfer of property from a subsidiary to the parent company);

this instrument is applicable only to business partnerships and companies (JSC, LLC, etc., but not applicable to production cooperatives, business partnerships);

When investing in a private equity fund, there is no increase in the authorized capital of the company.

Let's look at how this tool can work successfully using the example of a case study by experts from the taxCOACH Center for the retail sector. Let's imagine a business that is conducted within a Group of companies. Retail stores are independent legal entities (and the area of ​​each store allows the use of UTII). However, what about the profit of each operating point? You can use the contribution to the Cha that we already know! Retail companies establish a legal entity (let's designate it as an investment center) and make agreed funds received from the sale of products as deposits into property in order to increase the NAV. There is no need to pay income tax and the investment center can freely manage the participants’ money, for example, by investing it in new areas of activity.

Thus, contributions to the company’s net assets are not taxed on the income of the receiving party (in this case, the debt in the form of the amount of interest on the loan, written off by debt forgiveness, on the basis of paragraph 18 of Article 250 of the Tax Code of the Russian Federation is subject to inclusion in the non-operating income of the debtor organization) 1.

Read also

• Tax-free transfer of property in business: which tool to choose?
• Interest on a loan from the founder: you can forgive it, but you need to pay tax

But what will happen if a participant, for example a company on the OSN, transfers not money, but property as a contribution to the private equity? Is this transaction subject to VAT? Yes and no. In the sense that the transferring party (if it is on the general taxation system) must restore VAT on the residual value of the property. In this case, the restored value added tax can be included in expenses. But the receiving party will not be able to deduct VAT, since it did not pay money for this property, because a contribution to property is a type of gratuitous transfer. So you can’t do without a fly in the ointment...

Now let's see what's interesting about using this tool in legal disputes.

Judicial practice on challenging the application of benefits by tax authorities, paragraphs. 3.4 clause 1 art. 251 of the Tax Code of the Russian Federation is not very extensive. The main thing that tax authorities pay attention to is the reality of the transactions performed. Naturally, the actions of the parties must have a business goal, which is to improve the condition of the company. An increase in net assets and an increase in the profitability of the company after the founder’s “infusions” may indicate this.

At the same time, the courts pay attention to the reality of the increase in the taxpayer’s net assets. For example, sending case No. A22-4288/2015 for a new trial to the court of first instance, the cassation court ordered the lower court to examine the taxpayer’s accounting and tax documentation confirming (or refuting) the actual increase in his net assets, and the reflection of this operation in the company’s balance sheet for the corresponding calendar year.

In another example, the tax authority challenged the reality of the founder’s contribution to the net assets, which was claimed to be a redeemed right of claim against the taxpayer (No. A53-31131/2015). The courts supported the tax authority that initially the services were provided fictitiously, in order to inflate VAT deductions, and the accumulated accounts payable were assigned to the founder only for show. Thus, the taxpayer tried to avoid non-operating income in the amount of unclaimed (bad) accounts payable.

What if a participant deposits a third party bill of exchange into the CA? At the first stage, the general rule applies - the operation of depositing a bill of exchange into a private equity fund is not subject to income tax, everything is logical. Whereas the company's further transfer of this bill of exchange to a third party to pay off accounts payable is already subject to taxation (see cases No. A53-20551/2015, A41-39593/2015): the taxpayer has the right to include only the costs of selling the bill of exchange as expenses for profit tax purposes.

Another controversial point in practice arose in connection with the transfer by a participant to the company on the basis of paragraphs. 3.4 clause 1 art. 251 of the Tax Code of the Russian Federation gratuitous right to use the property belonging to him. As the courts have indicated, supporting the position of the tax authorities, the property to which the right of use has been transferred must be accounted for separately from the organization’s own property in an off-balance sheet account (paragraph 2 of clause 5 of PBU 1/2008, Instructions for the use of the Chart of Accounts). Therefore, this property does not increase the organization's net assets. In this regard, income from the gratuitous temporary use of the property of a participant (shareholder) must be taken into account as non-operating on the basis of clause 8 of Art. 250 Tax Code of the Russian Federation. (See cases No. A66-9803/2015; A50-24058/2015).

Finally, what happens if the founder decided to contribute to the private equity company, but at the time of the actual transfer of funds managed to withdraw from the membership? Such a dispute took place in court practice and ended in favor of the taxpayer! Let us note that the decision to contribute to the property in order to increase the NA was made by the only participant before he left the company. Whereas the contribution of 10 million rubles (in two tranches) was transferred two months after the composition of the LLC’s participants changed.

As the court of first instance indicated, the obligation to contribute to the property of the company, accepted by its sole participant, had to be fulfilled by this participant even if he alienated his share. The Court of Appeal, on the contrary, supported the tax authorities, insisting that the funds received by the taxpayer from the former participant were gratuitously received property. The cassation court put an end to this dispute, in its opinion, the participant’s obligation to provide financial assistance to the company does not pass to the acquirer of the share, and the moment of the actual transfer of the amount of money to the taxpayer does not change the qualification of this contribution as income of the taxpayer received in the form of property transferred by the participant of the economic society in order to increase net assets (see case No. A40-21501/2014). Unfortunately, there is no more detailed information about the details of the transaction for the alienation of a participant’s share in the case materials (which would make it possible to assess whether the position of the cassation court in this case is an isolated case or this decision is justified).

The Ministry of Finance of the Russian Federation, meanwhile, takes the opposite position and regards the contribution of a former participant as non-operating income: if on the date of concluding the agreement on debt forgiveness (consider the date of making the contribution, and not making a decision about it) the person was not a participant in the company, then the benefit income tax does not apply.2

Thus, in decisions of general meetings of participants and shareholders of organizations, do not forget to indicate that the transfer of property is carried out on the basis of paragraphs. 3.4 clause 1 art. 251 of the Tax Code of the Russian Federation precisely in order to increase net assets (so that the tax authorities have no reason to doubt the essence of the transaction). And returning to the beginning of our newsletter, remember: having forgiven a debt to the company, its new participant should not immediately leave the shareholders (participants). Otherwise, the tax authority will say that the lender did not intend to participate in the company’s activities and receive profit from this activity, and his only goal in entering the business was to forgive debt and exclude taxation for the company.

Is debt forgiveness by the founder not subject to income tax and taxation only if it goes to increase net assets?

The article will explain under what conditions debt forgiveness by the founder is not subject to income tax.

Question: 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 or payment for goods, it can forgive the debt and use it to increase net assets. Thus, he terminates the company’s obligations under the agreement (letters of the Ministry of Finance of Russia dated July 16, 2015 No. 03-03-06/2/40933 and the Federal Tax Service of Russia dated July 20, 2011 No. ED-4-3/11698). 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. “How to formalize and take into account assistance from the founder (participant, shareholder): loans, advances, donations, deposits.” Or from a founder owning more than 50% - in any case? What are the postings in each case? Dt76 Kt 91 - just forgiveness and Dt 76 Kt 83 - net assets?

Answer: 1. Yes, only if it goes to increase net assets, since subparagraph 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation talks about the transfer of property, and when a debt is forgiven, there is no transfer of property.

Formally, of course, net assets increase without any decisions or protocols, but regulatory agencies require them to be formalized.

2. Posting when debt is forgiven Debit 76 Credit 91.

Many people are mistaken that when it comes to increasing net assets, then account 83 must be used. There is no such rule in the law.

83 account is used when receiving a contribution to the organization’s property, which is usually accompanied by an increase in net assets in relation to the contribution and reflects the posting of Debit 08, 10, 50, 51 Credit 83.

In this case, there is no contribution to property, but rather debt forgiveness in order to increase net assets. They increase in the case of posting Debit 76 Credit 91, since accounts payable decreases, and other income will ultimately be reflected in section III of the balance sheet.

Situation: Is it necessary to take into account in income when calculating income tax the amount of forgiven debt under an agreement for the purchase of goods (works, services, property rights). The debt is forgiven by the founder who has a contribution to the authorized capital of the organization of more than 50 percent

According to the Russian Ministry of Finance, the amount of forgiven debt should increase taxable income. However, the Federal Tax Service of Russia expressed a different position.

The tax base for income tax is not increased only by the value of property received free of charge from the founder, whose share in the authorized capital of the organization exceeds 50 percent ( subp. 11 clause 1 art. 251 Tax Code of the Russian Federation). As a result of debt forgiveness, there is no transfer of property ( clause 2 art. 38 Tax Code of the Russian Federation). For tax purposes, this operation should be considered as a write-off of accounts payable, which is included in non-operating income on the basis paragraph 18 Article 250 of the Tax Code of the Russian Federation. The Tax Code of the Russian Federation does not provide for any exceptions to the procedure for its taxation.

This conclusion is confirmed by the explanations of the regulatory agencies (see, for example, letters from the Ministry of Finance of Russia dated April 5, 2010 No. 03-03-06/1/232 , dated March 30, 2007 No. 03-03-06/1/201 , dated March 28, 2006 No. 03-03-04/1/295 , dated March 17, 2006 No. 03-03-04/1/257 , Federal Tax Service of Russia dated May 22, 2009 No. 3-2-13/76).

The chief accountant advises: there is a way not to take into account in income the amount of debt forgiven by the founder under an agreement for the purchase of goods (works, services, property rights).

12.77451 (6,9,24)

Situation: Is it necessary to take into account in income when calculating income tax the amount of forgiven debt to repay the loan amount? The debt is forgiven by the founder who has a contribution to the authorized capital of the organization of more than 50 percent

According to the Russian Ministry of Finance, the amount of the forgiven loan does not need to be taken into account in income. However, claims from tax inspectors cannot be ruled out.

The Russian Ministry of Finance indicates that the amount of a loan received, forgiven by the founder, whose share in the authorized capital of the organization exceeds 50 percent, does not need to be included in income (see, for example, letters dated September 30, 2013 No. 03-03-06/1/40367 , dated October 14, 2010 No. 03-03-06/1/646). This is explained like this.

When the debt on the main loan obligation is forgiven, the organization actually receives property free of charge. Property received free of charge is included in non-operating income ( clause 8 art. 250 Tax Code of the Russian Federation). But for the case when the donor is the founder of the organization, an exception is provided. Property received free of charge is not included in income if, at the time when the notice (agreement) on debt forgiveness is signed, the founder’s share in the authorized capital of the organization exceeds 50 percent. This follows from subparagraph 11 paragraph 1 of article 251 of the Tax Code of the Russian Federation.

The Russian Ministry of Finance is convinced that the condition on the size of the contribution (share) in the authorized capital must be met at the time of concluding the loan agreement ( letter of the Ministry of Finance of Russia dated January 31, 2011 No. 03-03-06/1/45).

Forgiveness of the principal amount of debt (excluding interest debt) under a loan agreement may be subject to the rules subparagraph 11 paragraph 1 of Article 251 of the Tax Code of the Russian Federation, therefore it does not increase the tax base of the organization.

The tax department also agrees with the stated point of view (see, for example, letters from the Federal Tax Service of Russia dated May 22, 2009 No. 3-2-13/76 , dated March 6, 2009 No. 3-2-06/32).

However, based on the position of the regulatory agencies on a similar issue of accounting for the amount of debt forgiven by the founder under an agreement for the purchase of goods (work, services, property rights), it is possible that failure to reflect income when debt is forgiven under a loan agreement may cause claims from inspectors. The fact is that, if you follow the norms of civil law, debt forgiveness is a way to terminate the obligation under the original compensation agreement (Articles and Civil Code of the Russian Federation). Therefore, it is impossible to consider the amount of a forgiven debt, including under a loan agreement, as property received free of charge (). For tax purposes, this operation should be considered as a write-off of accounts payable, which is included in non-operating income on the basis paragraph 18 Article 250 of the Tax Code of the Russian Federation. There are no exceptions regarding the non-reflection of income received from the founder in relation to this paragraph. Therefore, when forgiveness of debt under a loan agreement (as under any other agreement), it is necessary to generate income.

In this situation, the organization has the right to independently decide which of these positions to follow. All ambiguities in the legislation are interpreted in favor of taxpayers ( clause 7 art. 3 Tax Code of the Russian Federation).

The chief accountant advises: there is a way not to take into account in income the amount of debt forgiven by the founder under the loan agreement.

Situation: Is it necessary to take into account when calculating the single tax income in the form of a loan amount received from the founder. The founder forgives the organization's debt. The organization applies simplification

The answer to this question depends on what part of the authorized capital of the organization is the contribution of this founder.

If the share contributed by the founder is 50 percent or less, take the amount of the written off loan debt into account as income. Do the same if the property transferred to the organization as a result of debt forgiveness was transferred to third parties during the year. This follows from paragraph 1 section 346.15 and paragraph 8 Article 250 of the Tax Code of the Russian Federation. Recognize income on the date of signing the debt forgiveness agreement ( clause 1 art. 346.15, Tax Code of the Russian Federation).

An example of settlements with the founder of an organization for a loan provided. The founder's share in the authorized capital of the organization is 45 percent. The organization applies simplification

One of the founders of Alpha LLC is A.V. Lviv. The share contributed by Lvov to the authorized capital of the organization is 45 percent.

In January, Lvov provided Alpha with an interest-free loan in the amount of 100,000 rubles. for a period of three months. In March, due to the difficult financial situation of the organization, Lvov forgives Alpha the debt on the loan provided.

The organization's accountant took into account the loan amount when calculating the single tax during the period of signing the debt forgiveness agreement (in the first quarter).

If the founder’s share is more than 50 percent, the question of including the amount of written off debt in income ambiguous. Since the controversial situation is based on the provisions subparagraph 11 Clause 1 of Article 251 of the Tax Code of the Russian Federation, the conclusions it contains can be guided not only by income tax payers, but also by organizations applying the simplified tax system ( subp. 1 clause 1.1 art. 346.15 Tax Code of the Russian Federation).

Alexander Sorokin answers,

Deputy Head of the Operational Control Department of the Federal Tax Service of Russia

“Cash payment systems should be used only in cases where the seller provides the buyer, including its employees, with a deferment or installment plan for payment for its goods, work, and services. It is these cases, according to the Federal Tax Service, that relate to the provision and repayment of a loan to pay for goods, work, and services. If an organization issues a cash loan, receives a repayment of such a loan, or itself receives and repays a loan, do not use the cash register. When exactly you need to punch a check, look at

If there is a critical imbalance between the indicators of assets and capital, it is necessary for the founders to increase net assets. The entries reflect in the accounting this operation involving account 83. This event is implemented through additional contributions from the founders and the attraction of new investment infusions. The mandatory nature of the procedure is regulated by Law No. 14-FZ of 02/08/1998 for cases with an underestimated amount of property value in relation to the actual level of capital value.

Algorithm of actions if it is necessary to increase assets

The accounting or economic department of the company annually analyzes the results of financial activities. Based on information from the balance sheet, it is possible to assess compliance with the key balance rule - the size of net assets cannot be less than the amount of formed capital. The maximum acceptable range of the gap between these indicators is 10,000 rubles.

Formally, the increase in the net assets of an LLC can be voluntary or forced. In the latter case, the choice is between building up the material base and liquidating the organization.

The reporting documents must show a set of data:

• dynamics of changes in control indicators over the last 3 annual intervals;
• justification for reducing the size of assets to a critical level;
• measures that the company's management plans to take to stabilize the situation and improve the financial position of the company.

Failure to take urgent measures to eliminate the imbalance risks the forced closure of the company through legal action.

Let's name ways to increase net assets:

• carry out a large-scale revaluation of property assets owned by the company with the obligation of regular revaluation in the future;
• if there is a reserve between the minimum amount of the authorized capital and its current volume, it is possible to reduce the amount of capital with registration of this fact in the Unified State Register of Legal Entities;
• direct increase in net assets by the founders.

The latter option is possible provided that one or more founders agree to provide financial assistance to their enterprise on a voluntary basis. The owners make additional contributions of funds with the purpose of payment:

The operation to adjust the value of assets in the accounting registers should be reflected as follows:

Accounting entries for the posting of new property or the receipt of the missing amount of funds are recorded on the date of actual receipt of these assets.

When making money transfers, it is necessary to take into account the norms of paragraph 1 of Art. 251 of the Tax Code of the Russian Federation: incoming additional contributions are not subject to inclusion in the taxable base for income tax if the founder owns more than half of the authorized capital of the company.

For acquired property, there is a restriction on the transfer of new assets to third parties: the alienation of such objects is impossible during the first year of ownership.