Commentary on Article 251 of the Tax Code of the Russian Federation

In Art. 251 of the Tax Code of the Russian Federation provides a list of income that is not taken into account when taxing profits. This list is closed. That is, firms must pay income tax on any income that is not mentioned in it.

Let's say in pp. 1 p. 1 art. 251 of the Tax Code of the Russian Federation states that property (works, services, property rights) that the organization received in the order of advance payment for goods (works, services) is not subject to income tax. True, this rule applies only to those taxpayers who determine income on an accrual basis. It turns out that under the cash method, the amount of the prepayment is subject to income tax at the time of its receipt. This has been repeatedly confirmed by arbitration courts. An example is the already mentioned Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 22, 2005 N 98.

Note that from January 1, 2015, the provisions of Art. 251 of the Tax Code of the Russian Federation have undergone the following changes:

a) pp. 11 p. 1 art. 251 of the Tax Code of the Russian Federation Federal Law No. 376-FZ of November 24, 2014 “On Amendments to Parts One and Two of the Tax Code of the Russian Federation (Regarding Taxation of Profits of Controlled Foreign Companies and Income of Foreign Organizations)” was reworded. So, based on paragraphs. 11 p. 1 art. 251 of the Tax Code of the Russian Federation (as amended by the said Federal Law) it follows that when determining the tax base, in particular, income in the form of property received by a Russian organization free of charge is not taken into account:

from the organization, if the authorized (share) capital (fund) of the receiving party consists of more than 50 percent of the contribution (share) of the transferring organization;

from the organization, if the authorized (reserve) capital (fund) of the transferring party consists of more than 50 percent of the contribution (share) of the receiving organization and on the day of the transfer of property, the receiving organization owns the specified contribution (share) in the authorized (share) capital ( fund) on the day of transfer of property. In this case, if the transferring organization is a foreign organization, the income specified in this subparagraph shall not be taken into account when determining the tax base only if the state of the transferring organization's permanent location is not included in the list of states and territories approved by the Ministry of Finance of the Russian Federation in accordance with paragraphs. 1 p. 3 art. 284 of the Tax Code of the Russian Federation;

from an individual, if the authorized (share) capital (fund) of the receiving party consists of more than 50 percent of the contribution (share) of this individual.

At the same time, the received property is not recognized as income for tax purposes only if, within one year from the date of its receipt, the said property (except for monetary funds) is not transferred to third parties;

b) the provisions of par. 18 pp. 14 p. 1 art. 251 of the Tax Code of the Russian Federation that when determining the tax base, income in the form of fees for air navigation services for aircraft flights in the airspace of the Russian Federation, levied in the manner established by the authorized body in the field of the use of airspace, is not taken into account, become invalid (clauses " a "clause 1, article 1 of the Federal Law of February 21, 2014 N 17-FZ "On Amendments to Articles 251 and 270 of Part Two of the Tax Code of the Russian Federation");

c) pp. 33.1 p. 1 art. 251 of the Tax Code of the Russian Federation Federal Law of November 24, 2014 N 366-FZ "On Amendments to Part Two of the Tax Code of the Russian Federation and Certain Legislative Acts of the Russian Federation" is set out in a new edition. So, in accordance with paragraphs. 33.1 p. 1 art. 251 of the Tax Code of the Russian Federation, when determining the tax base, income in the form of funds received by state institutions from the provision of services (performance of work) is not taken into account;

d) pp. 41 p. 1 art. 251 of the Tax Code of the Russian Federation is set out in a new edition in accordance with the amendments made to it by the Federal Law of November 29, 2014 N 382-FZ “On Amendments to Parts One and Two of the Tax Code of the Russian Federation”. So, in accordance with paragraphs. 41 p. 1 art. 251 of the Tax Code of the Russian Federation, when determining the tax base, income received by an all-Russian public association operating in accordance with the legislation of the Russian Federation on public associations, the Olympic Charter of the International Olympic Committee and on the basis of recognition by the International Olympic Committee, and an all-Russian public association exercising its activities in accordance with the legislation of the Russian Federation on public associations, the Constitution of the International Paralympic Committee and on the basis of recognition by the International Paralympic Committee, within the framework of agreements on the transfer of property rights (including the rights to use the results of intellectual activity and (or) means of individualization) in monetary and ( or) in kind (sports equipment, provision of travel, accommodation and insurance services for members of the Olympic delegation of the Russian Federation and the Paralympic delegation of Russia Russian Federation), subject to the direction of the received income for the purposes of the activities provided for in Art. Art. 11 and 12 of the Federal Law of December 4, 2007 N 329-FZ “On Physical Culture and Sports in the Russian Federation;

e) paragraph 1 of Art. 251 of the Tax Code of the Russian Federation was supplemented by paragraphs. 46 that when determining the tax base, incomes in the form of fees for air navigation services for aircraft flights in the airspace of the Russian Federation, as well as in the form of funds received from the federal budget as compensation for expenses for air navigation services for flights of state aviation aircraft are not taken into account exempted in accordance with the legislation of the Russian Federation from payment for air navigation services;

e) paragraph 1 of Art. 251 of the Tax Code of the Russian Federation was supplemented by paragraphs. 50 that when determining the tax base, income in the form of dividends, to which the Russian organization has the actual right and from which tax is withheld, taking into account the provisions of Art. 312 of the Tax Code of the Russian Federation. At the same time, taxpayers are required to document the deduction of tax by the tax agent;

g) paragraph 1 of Art. 251 of the Tax Code of the Russian Federation is supplemented by paragraphs. 51 that when determining the tax base, income in the form of exclusive rights to inventions, utility models, industrial designs, programs for electronic computers, databases, topologies of integrated circuits, production secrets (know-how) created during the implementation the state contract, which are transferred to the executor of this state contract by its state customer under an agreement on gratuitous alienation;

h) in paragraph 2 of Art. 251 of the Tax Code of the Russian Federation paragraphs. 6 and 6.1 were declared invalid. Previously, they established that they did not include in income when determining the tax base for income tax, respectively, pension contributions to non-state pension funds, if at least 97% of them are directed to the formation of pension reserves of a non-state pension fund, as well as pension savings, including including insurance premiums for compulsory pension insurance, formed in accordance with the legislation of the Russian Federation;

i) paragraph 2 of Art. 251 of the Tax Code of the Russian Federation was supplemented with new paragraphs. 20, which establishes that when determining the tax base, income (cash) in the form of deductions received by a non-profit organization, the founder of which is the Russian Federation represented by the Government of the Russian Federation, is not taken into account, the main goals of which are to support domestic cinematography, increase its competitiveness, ensure conditions for the creation of high-quality films corresponding to national interests, and the popularization of national films in the Russian Federation, within the limits provided by the specified non-profit organization on the terms of equity participation in the production of national films or in reimbursement of expenses for these purposes, the amounts sourced from budgetary appropriations.

Income in the form of property, property rights, works or services that are received from other persons in the order of advance payment for goods (works, services) by taxpayers who determine income and expenses on an accrual basis

According to paragraphs. 1 p. 1 art. 251 of the Tax Code of the Russian Federation, when determining the tax base, income in the form of property, property rights, works or services that are received from other persons in the order of advance payment for goods (works, services) by taxpayers who determine income and expenses on an accrual basis are not taken into account.

Thus, if an organization uses the accrual method, it does not have taxable income upon receipt of an advance payment (clause 1, clause 1, article 251 of the Tax Code of the Russian Federation). At the same time, the return of the prepayment is not taken into account as an expense for the purposes of taxation of profits on the basis of clause 14 of Art. 270 of the Tax Code of the Russian Federation.

But advances received under non-concluded agreements (ie, under agreements that will be concluded in the future), due to the absence of counter obligations from the recipient of advances, are recognized for the purposes of Ch. 25 of the Tax Code of the Russian Federation by property received free of charge, which is accounted for by the recipient of such funds as part of non-operating income (Letter of the Federal Tax Service of Russia for Moscow dated April 30, 2009 N 16-15 / [email protected]“On Accounting for the Purposes of Taxation of Profits of the Amounts of Advances Received by an Organization from Individuals as Payments Under Contracts to Be Concluded in the Future”).

We also point out that if an organization uses the cash method of accounting for income and expenses, then the amounts of advance payment should in this case be taken into account when determining the tax base for income tax (clause 8 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 22, 2005 N 98 “Overview the practice of resolving cases by arbitration courts related to the application of certain provisions of Chapter 25 of the Tax Code of the Russian Federation”).

Property, property rights received in the form of a pledge or deposit as security for obligations

According to paragraphs. 2 p. 1 art. 251 of the Tax Code of the Russian Federation, when determining the tax base, income in the form of property, property rights, which are received in the form of a pledge or deposit as security for obligations, is not taken into account.

In accordance with paragraph 1 of Art. 329 of the Civil Code of the Russian Federation, the fulfillment of obligations may be secured by a penalty, a pledge, retention of the debtor's property, a surety, a bank guarantee, a deposit and other methods provided for by law or an agreement.

In accordance with paragraph 1 of Art. 334 of the Civil Code of the Russian Federation, by virtue of a pledge, the creditor under the obligation secured by the pledge (pledgee) has the right, in the event of non-fulfillment or improper fulfillment by the debtor of this obligation, to receive satisfaction from the value of the pledged property (collateral) preferentially over other creditors of the person who owns the pledged property (pledger).

A pledge between the pledgor and the pledgee arises on the basis of an agreement. In cases established by law, a pledge arises upon the occurrence of circumstances specified in the law (a pledge on the basis of the law) (clause 1, article 334.1 of the Civil Code of the Russian Federation).

The subject of a pledge (clause 1, article 336 of the Civil Code of the Russian Federation) can be any property, including things and property rights, with the exception of property on which foreclosure is not allowed, claims that are inextricably linked with the personality of the creditor, in particular claims for alimony , on compensation for harm caused to life or health, and other rights, the assignment of which to another person is prohibited by law.

In accordance with Art. 380 of the Civil Code of the Russian Federation, a deposit is recognized as a sum of money issued by one of the contracting parties on account of payments due from it under the contract to the other party as evidence of the conclusion of the contract and to ensure its execution. An agreement on a deposit, regardless of the amount of the deposit, must be made in writing. In case of doubt as to whether the amount paid on account of payments due from the side under the contract is a deposit, in particular due to non-compliance with the rule established by paragraph 2 of Art. 380 of the Civil Code of the Russian Federation, this amount is considered paid as an advance payment, unless proven otherwise.

As follows from Art. 381 of the Civil Code of the Russian Federation, upon termination of the obligation before the start of its execution by agreement of the parties or due to the impossibility of performance (Article 416 of the Civil Code of the Russian Federation), the deposit must be returned. If the party that gave the deposit is responsible for non-performance of the contract, it remains with the other party. If the party that received the deposit is responsible for non-performance of the contract, it is obliged to pay the other party the double amount of the deposit. Moreover, the party liable for non-fulfillment of the contract is obliged to compensate the other party for losses, offsetting the amount of the deposit, unless otherwise provided in the contract.

VAT amounts to be deducted from an organization receiving property as a contribution to the authorized capital

When transferring property, intangible assets and property rights as a contribution to the authorized (share) capital of economic companies and partnerships or share contributions to mutual funds of cooperatives, VAT must be restored (clause 3 of article 170 of the Tax Code of the Russian Federation). However, the receiving party has the right to accept these tax amounts for deduction (clause 11, article 171 of the Tax Code of the Russian Federation) and must register in the purchase book the documents on the basis of which the property (property right) is transferred, and store them (or their copies) in the journal posting invoices received. Registration of these documents in the book of purchases is made at the time of the emergence of the right to a tax deduction.

According to paragraphs. 3.1 p. 1 art. 251 of the Tax Code of the Russian Federation, the amount of VAT accepted in this case for deducting the amount of VAT, the receiving organization should not be taken into account as part of income when calculating income tax.

Income in the form of property (including cash) received by the commission agent, agent and (or) another attorney in connection with the performance of obligations under a commission agreement, agency agreement or other similar agreement, as well as to reimburse expenses incurred by the commission agent, agent and (or) ) by another attorney for the committent, principal and (or) other principal, if such costs are not subject to inclusion in the expenses of the commission agent, agent and (or) other attorney in accordance with the terms of the concluded agreements

In accordance with paragraphs. 9 p. 1 art. 251 of the Tax Code of the Russian Federation, when determining the tax base, income in the form of property (including cash) received by a commission agent, agent and (or) other attorney in connection with the performance of obligations under a commission agreement, agency agreement or other similar agreement, as well as on account reimbursement of costs incurred by the commission agent, agent and (or) other attorney for the committent, principal and (or) other principal, if such costs are not subject to inclusion in the costs of the commission agent, agent and (or) other attorney in accordance with the terms of the concluded contracts.

This income does not include commission, agency or other similar remuneration. Accordingly, the remuneration received by the agent under the agency agreement is recognized by the Tax Code of the Russian Federation as income subject to taxation in accordance with the provisions of Ch. 25 of the Tax Code of the Russian Federation.

In accordance with paragraph 9 of Art. 270 of the Tax Code of the Russian Federation, when determining the tax base for corporate income tax, expenses in the form of property (including cash) transferred by a commission agent, agent and (or) other attorney in connection with the fulfillment of obligations under a commission agreement, agency agreement or other similar agreement are not taken into account , as well as on account of payment of costs incurred by the commission agent, agent and (or) other attorney for the committent, principal and (or) other principal, if such costs are not subject to inclusion in the expenses of the commission agent, agent and (or) other attorney in accordance with the terms of the contracts.

Thus, as explained by the Federal Tax Service of Russia for Moscow in Letter No. 16-15 of August 6, 2012 / [email protected], The Tax Code of the Russian Federation provides for the following procedure for accounting for the costs of an agent under an agency agreement:

- the agent's expenses incurred by him in connection with the fulfillment of obligations under the agency agreement, if such expenses are subject to inclusion in the principal's expenses for income tax purposes, are not taken into account as the agent's expenses;

- if the agent makes expenses that meet the requirements of paragraph 1 of Art. 252 of the Tax Code of the Russian Federation, which are not reimbursed by the principal and, accordingly, are not reflected in the principal's tax records, the agent has the right to include these expenses in the expenses taken into account when taxing his profits. At the same time, the procedure for paying income tax is provided for in Art. Art. 286 - 288 of the Tax Code of the Russian Federation.

Written-off debt for the payment of taxes and fees, penalties and fines to the budgets of different levels, for the payment of contributions, penalties and fines to the budgets of state non-budgetary funds

In accordance with paragraphs. 21 p. 1 art. 251 of the Tax Code of the Russian Federation, income that is not taken into account for the purposes of taxation of profits includes the amounts of accounts payable of the taxpayer for the payment of taxes and fees, penalties and fines to budgets of different levels, for the payment of contributions, penalties and fines to the budgets of state off-budget funds, written off and (or ) otherwise reduced in accordance with the legislation of the Russian Federation or by decision of the Government of the Russian Federation.

The procedure for writing off arrears and debts for penalties and fines recognized as uncollectible is established by Art. 59 of the Tax Code of the Russian Federation. Paragraph 1 of this article defines a list of grounds for declaring arrears and debts on penalties and fines as uncollectible.

So, in accordance with paragraphs. 4 p. 1 art. 59 of the Tax Code of the Russian Federation, one of the grounds for recognizing arrears and arrears in penalties and fines attributed to individual taxpayers as hopeless for collection is the adoption by the court of an act, according to which the tax authority loses the ability to collect the said arrears, arrears in penalties and fines due to the expiration of the established term for their collection, including the issuance by him of a decision to refuse to restore the missed deadline for filing an application with the court for the collection of arrears, debts on penalties and fines.

Based on paragraph 5 of Art. 59 of the Tax Code of the Russian Federation by Order of the Federal Tax Service of Russia dated August 19, 2010 N YaK-7-8 / [email protected]"On approval of the Procedure for writing off arrears and debts on penalties, fines and interest recognized as uncollectible and the List of documents confirming the circumstances of recognizing arrears, debts on penalties, fines and interest as hopeless for collection" (hereinafter - the Order of the Federal Tax Service of Russia dated August 19, 2010 .N Yak-7-8/ [email protected]) approved the Procedure for writing off arrears and debts on penalties, fines and interest recognized as uncollectible.

In view of the foregoing, the amounts of accounts payable for the payment of penalties and fines for taxes and fees, recognized as uncollectible due to the expiration of the established period for their collection on the basis of paragraphs. 4 p. 1 art. 59 of the Tax Code of the Russian Federation and written off in the manner established by the Order of the Federal Tax Service of Russia dated August 19, 2010 N YaK-7-8 / [email protected], in accordance with paragraphs. 21 p. 1 art. 251 of the Tax Code of the Russian Federation are not taken into account in income.

Income of a non-profit organization that performs the functions of providing financial support for the overhaul of apartment buildings, which is received from the placement of temporarily free funds

When determining the tax base, the income of the person performing the function of providing financial support for the overhaul of apartment buildings and the resettlement of citizens from dilapidated housing stock is not taken into account in accordance with the Federal Law of July 21, 2007 N 185-FZ "On the Fund for Assistance to the Reform of Housing and Communal Services ”(hereinafter in this chapter - Law N 185-FZ) of a non-profit organization that are received from the placement of temporarily free funds (clause 38, clause 1, article 251 of the Tax Code of the Russian Federation).

And according to the provisions of paragraph 48.9 of Art. 270 of the Tax Code of the Russian Federation, when determining the tax base, the expenses of the non-profit organization that performs the function of providing financial support for the overhaul of apartment buildings and the resettlement of citizens from dilapidated housing stock in accordance with the Federal Law "On the Fund for Assistance to the Reform of Housing and Communal Services", incurred in connection with the placement of temporarily free funds.

According to the provisions of Law N 185-FZ:

- overhaul of an apartment building - carrying out the work provided for by Law N 185-FZ to eliminate malfunctions of worn structural elements of the common property of owners of premises in an apartment building (hereinafter referred to as the common property in an apartment building), including their restoration or replacement, in order to improve operational characteristics of common property in an apartment building;

- emergency housing stock - a set of residential premises in multi-apartment buildings, recognized in accordance with the established procedure before January 1, 2012 as emergency and subject to demolition or reconstruction due to physical wear and tear during their operation;

- resettlement of citizens from emergency housing stock - decision-making and implementation of activities in accordance with Art. Art. 32, 86, parts 2 and 3 of Art. 88 of the Housing Code of the Russian Federation.

The Housing and Utilities Reform Assistance Fund is a state-owned corporation.

The fund is created by the Russian Federation.

The status, objectives of the activities, functions and powers of the fund are determined by this Federal Law, Federal Law No. 7-FZ of January 12, 1996 "On Non-Commercial Organizations" (hereinafter referred to as the Federal Law "On Non-Commercial Organizations") and other regulatory legal acts of the Russian Federation, regulating the activities of non-profit organizations, with the features established by Law N 185-FZ.

The location of the fund is Moscow.

The Fund is valid until January 1, 2016 and is subject to liquidation in accordance with Art. 25 of Law N 185-FZ.

Federal Law No. 225-FZ of December 1, 2008 “On Amendments to the Federal Law “On the Fund for Assistance to the Reform of the Housing and Utilities Sector” and Certain Legislative Acts of the Russian Federation” provided that the provisions of paragraphs. 38 p. 1 art. 251 and paragraph 48.9 of Art. 270 of the second part of the Tax Code of the Russian Federation apply to legal relations that arose from January 1, 2009, and apply until December 31, 2012 inclusive.

Federal Law No. 39-FZ of April 5, 2013 “On Amendments to Part Two of the Tax Code of the Russian Federation and Article 4 of the Federal Law “On Amendments to Certain Legislative Acts of the Russian Federation in Connection with Improving the Principles of Determining Prices for Tax Purposes” application of paragraphs. 38 p. 1 art. 251 and paragraph 48.9 of Art. 270 of the Tax Code of the Russian Federation was extended until December 31, 2015, while the effect of this change is extended to legal relations that arose from January 1, 2013.

Deductions for the formation of a reserve for the repair of the common property of the HOA or housing cooperative

Subparagraph 1 of paragraph 2 of Art. 251 of the Tax Code of the Russian Federation, it is established that targeted revenues for the maintenance of non-profit organizations and the conduct of their statutory activities include entrance fees, membership fees, share contributions, donations recognized as such in accordance with the civil legislation of the Russian Federation, made in accordance with the legislation of the Russian Federation on non-profit organizations , as well as deductions for the formation in the established Art. 324 of the Tax Code of the Russian Federation on the procedure for a reserve for repairs, overhauls of common property, which are made by a homeowners' association, a housing cooperative, a horticultural, horticultural, garage-building, housing-construction cooperative or other specialized consumer cooperative by their members.

In accordance with paragraph 2 of Art. 251 of the Tax Code of the Russian Federation, when determining the tax base, targeted revenues are not taken into account (with the exception of targeted revenues in the form of excisable goods). These include targeted revenues for the maintenance of non-profit organizations and the conduct of their statutory activities, received free of charge on the basis of decisions of state authorities and local governments and decisions of management bodies of state non-budgetary funds, as well as targeted revenues from other organizations and (or) individuals used intended recipients.

At the same time, taxpayers who are recipients of the specified targeted revenues are required to keep separate records of income (expenses) received (incurred) within the framework of targeted revenues.

Thus, income (expenses) received (produced) within the framework of targeted revenues are not taken into account for the purposes of taxing the profits of organizations, subject to separate accounting, as well as the targeted use of funds named in paragraph 2 of Art. 251 of the Tax Code of the Russian Federation.

The HOA (HBC), which is a taxpayer of corporate income tax, when determining the tax base, does not take into account entrance fees, membership fees, share contributions, donations, as well as deductions for the formation of a reserve for repairs, overhaul of common property, which are made to the partnership of homeowners of its members.

As for other payments received by the HOA (HBC), then taking into account the provisions of Art. Art. 249 and 250 of the Tax Code of the Russian Federation, the amount of payments by homeowners for housing and communal services received by the organization should be taken into account as part of its income when determining the tax base for corporate income tax. At the same time, these payments (for example, payment for hot and cold water, garbage disposal, etc.), simultaneously with their reflection in the income part of the HOA (HBC), are accepted to reduce income as part of expenses in the part to be transferred to the relevant organizations providing these services.

The excess of income over expenses that are taken into account for tax purposes is subject to taxation by corporate income tax in accordance with Art. 247 of the Tax Code of the Russian Federation (Letter of the Ministry of Finance of Russia dated May 23, 2012 N 03-03-07 / 25).

Article 252 Expenses Grouping costs

ST 251 Tax Code of the Russian Federation.

1. When determining the tax base, the following incomes are not taken into account:

1) in the form of property, property rights, works or services received from other persons in the order of advance payment for goods (works, services) by taxpayers who determine income and expenses on an accrual basis;

2) in the form of property, property rights received in the form of a pledge or deposit as security for obligations;

3) in the form of property, property rights or non-property rights having a monetary value, which are received in the form of contributions (contributions) to the authorized (share) capital (fund) of the organization (including income in the form of an excess of the placement price of shares (stakes) over their nominal value (original size);

3.1) in the form of amounts of value added tax subject to tax deduction from the receiving organization in accordance with the transfer of property, intangible assets and property rights as a contribution to the authorized (reserve) capital of business companies and partnerships or share contributions to share funds of cooperatives;

3.2) in the form of a property contribution of the Russian Federation, a property contribution of the Central Bank of the Russian Federation to the property of a state corporation, state company or fund established by the Russian Federation on the basis of a federal law, in which the formation of an authorized capital is not provided;

3.4) in the form of dividends unclaimed by the participants of the economic company or partnership or part of the distributed profit of the economic company or partnership restored as part of the retained profit of the business company or partnership;

3.5) in the form of property (excluding subsidies) received in the manner prescribed by the Government of the Russian Federation by a management company that is a joint-stock company, 100 percent of whose shares are owned by the Russian Federation, and whose activities are provided for by Federal Law No. 473- dated December 29, 2014 Federal Law "On territories of advanced socio-economic development in the Russian Federation";

3.6) in the form of property rights to the results of intellectual activity identified in the course of an inventory of property and property rights conducted by the taxpayer;

3.7) in the form of property, property rights or non-property rights in the amount of their monetary value, which are received as a contribution to the property of a business company or partnership in the manner prescribed by the civil legislation of the Russian Federation;

3.8) in the form of rights to the results of intellectual activity created by order of the Advanced Research Foundation and transferred free of charge to the persons specified in clause 1 of part 2 of Article 9 of Federal Law No. 174-FZ of October 16, 2012 "On the Advanced Research Fund";

4) in the form of property, property rights that are received within the limits of the contribution (contribution) by a member of the organization (his successor or heir), in the event of a decrease in the authorized capital, in the event of withdrawal (withdrawal) from the organization, or in the distribution of property of the liquidated organization among its participants;

5) in the form of property, property rights and (or) non-property rights having a monetary value, which are received within the limits of the contribution by a participant in a simple partnership agreement (agreement on joint activity) or his successor in case of separation of his share from the property that is in common ownership of the participants agreement, or division of such property;

6) in the form of funds and other property received in the form of gratuitous assistance (assistance) in the manner prescribed by the Federal Law "On gratuitous assistance (assistance) of the Russian Federation and the introduction of amendments and additions to certain legislative acts of the Russian Federation on taxes and on the establishment of benefits on payments to state non-budgetary funds in connection with the implementation of gratuitous assistance (assistance) of the Russian Federation";

7) in the form of fixed assets and intangible assets received free of charge in accordance with international treaties of the Russian Federation, as well as in accordance with the legislation of the Russian Federation by nuclear power plants to improve their safety, used for production purposes;

8) in the form of property received by state and municipal institutions by decision of executive authorities at all levels;

9) in the form of property (including cash) received by the commission agent, agent and (or) another attorney in connection with the performance of obligations under a commission agreement, agency agreement or other similar agreement, as well as to reimburse expenses incurred by the commission agent, agent and ( or) by another attorney for the committent, principal and (or) other principal, if such costs are not subject to inclusion in the expenses of the commission agent, agent and (or) other attorney in accordance with the terms of the agreements concluded. The specified income does not include commission, agency or other similar remuneration;

10) in the form of funds or other property received under credit or loan agreements (other similar funds or other property, regardless of the form of borrowing, including debt securities), as well as funds or other property received as repayment of such borrowings;

11) in the form of property received by a Russian organization free of charge:

from the organization, if the authorized (share) capital (fund) of the receiving party consists of more than 50 percent of the contribution (share) of the transferring organization;

from the organization, if the authorized (reserve) capital (fund) of the transferring party consists of more than 50 percent of the contribution (share) of the receiving organization and on the day of the transfer of property, the receiving organization owns the specified contribution (share) in the authorized (share) capital ( fund). In this case, if the transferring organization is a foreign organization, the income specified in this subparagraph shall not be taken into account when determining the tax base only if the state of the transferring organization's permanent location is not included in the list of states and territories approved by the Ministry of Finance of the Russian Federation in accordance with subparagraph 1 of paragraph 3 of Article 284 of this Code;

from an individual, if the authorized (share) capital (fund) of the receiving party consists of more than 50 percent of the contribution (share) of this individual.

At the same time, the received property is not recognized as income for tax purposes only if, within one year from the date of its receipt, the said property (except for monetary funds) is not transferred to third parties;

11.1) in the form of funds received by the organization free of charge from a business company or partnership, of which such an organization is a shareholder (participant), within the amount of its contribution (contributions) to property in the form of funds previously received by a business company or partnership from such an organization.

The economic company or partnership and organization (their successors) specified in the first paragraph of this subparagraph are obliged to keep documents confirming the amount of the relevant contributions to property and the amount of funds received free of charge;

11.2) in the form of the results of work on the transfer, reorganization of fixed assets belonging to the taxpayer on the right of ownership or operational management, performed by third parties in connection with the creation of another object (objects) of capital construction, which is in state or municipal ownership and financed from budget funds the budget system of the Russian Federation;

12) in the form of amounts of interest received in accordance with the requirements of Articles 78, 79, 176, 176.1 and 203 of this Code from the budget (off-budget fund);

13) in the form of guarantee contributions to special funds created in accordance with the legislation of the Russian Federation, intended to reduce the risks of non-fulfillment of obligations under transactions received in the course of clearing activities or activities for organizing trading in the securities market;

13.1) in the form of contributions to compensation funds created in accordance with the legislation of the Russian Federation and intended to compensate for losses caused as a result of insolvency (bankruptcy) of forex dealers;

13.2) in the form of clearing participation certificates received from the clearing organization that issued such certificates, as well as in the form of property received from the clearing organization upon redemption of the clearing participation certificates owned by the taxpayer in accordance with Federal Law No. 7-FZ "On clearing and clearing activity";

14) in the form of property received by the taxpayer within the framework of targeted financing. At the same time, taxpayers who have received special-purpose financing are required to keep separate records of income (expenses) received (produced) within the framework of special-purpose financing. In the absence of such accounting for a taxpayer who has received special-purpose financing, these funds are considered as subject to taxation from the date of their receipt.

The means of targeted financing include property received by the taxpayer and used by him for the purpose determined by the organization (individual) - the source of targeted funding or federal laws:

in the form of limits on budgetary obligations (budget appropriations), brought in the prescribed manner to state institutions, as well as in the form of subsidies provided to budgetary institutions and autonomous institutions;

in the form of limits on budgetary obligations (budget appropriations) brought before July 1, 2012 in accordance with the established procedure to budgetary institutions that are recipients of budgetary funds;

in the form of budget funds allocated to homeowners' associations that manage apartment buildings, housing, housing and construction cooperatives or other specialized consumer cooperatives, management organizations chosen by the owners of premises in apartment buildings, for equity financing of the overhaul of apartment buildings in accordance with the Federal Law " On the Fund for Assistance to the Reform of the Housing and Communal Services";

in the form of budgetary funds allocated for equity financing of the overhaul of common property in apartment buildings in accordance with the Housing Code of the Russian Federation to homeowners' associations, housing, housing construction cooperatives or other specialized consumer cooperatives established and managing apartment buildings in accordance with the Housing Code the Code of the Russian Federation, managing organizations, as well as in the direct management of apartment buildings by owners of premises in such houses - managing organizations that provide services and (or) perform work on the maintenance and repair of common property in such houses;

in the form of grants received. For the purposes of this chapter, funds or other property are recognized as grants if their transfer (receipt) satisfies the following conditions:

grants are provided on a gratuitous and irrevocable basis by Russian individuals, non-profit organizations, as well as foreign and international organizations and associations according to the list of such organizations approved by the Government of the Russian Federation, for the implementation of specific programs in the field of education, art, culture, science, physical culture and sports (with the exception of professional sports), health protection, environmental protection, protection of human and civil rights and freedoms provided for by the legislation of the Russian Federation, social services for the poor and socially unprotected categories of citizens, and in the case of grants from the President of the Russian Federation - for the implementation of activities (programs , projects) determined by acts of the President of the Russian Federation;

the ninth paragraph (previously - the eighth) has become invalid;

grants are provided on terms determined by the grantor, with the obligatory submission to the grantor of a report on the intended use of the grant;

in the form of investments received during investment competitions (bidding) in the manner prescribed by the legislation of the Russian Federation;

in the form of investments received from foreign investors to finance capital investments for industrial purposes, provided that they are used within one calendar year from the date of receipt;

in the form of funds of equity holders and (or) investors accumulated on the accounts of the developer organization;

in the form of funds received by the mutual insurance society from organizations - members of the mutual insurance society;

in the form of funds received from funds to support scientific, scientific and technical, innovative activities, created in accordance with the Federal Law of August 23, 1996 N 127-FZ "On Science and State Scientific and Technical Policy", for the implementation of specific scientific, scientific and technical programs and projects, innovative projects;

in the form of funds received for the formation of funds to support scientific, scientific and technical, innovative activities, created in accordance with the Federal Law of August 23, 1996 N 127-FZ "On Science and State Scientific and Technical Policy";

in the form of funds received by enterprises and organizations, which include especially radiation and nuclear hazardous industries and facilities, from reserves designed to ensure the safety of these industries and facilities at all stages of the life cycle and their development in accordance with the legislation of the Russian Federation on the use atomic energy. These funds are subject to inclusion in non-operating income if the recipient actually used such funds for other than their intended purpose or did not use them for their intended purpose within one year after the end of the tax period in which they were received;

paragraph eighteen is no longer valid;

in the form of bank insurance premiums to the deposit insurance fund in accordance with the federal law on insurance of deposits of individuals in banks of the Russian Federation;

in the form of funds received by medical organizations that carry out medical activities in the system of compulsory health insurance, for the provision of medical services to insured persons from insurance organizations that carry out compulsory medical insurance of these persons;

in the form of targeted funds received by insurance medical organizations - participants in compulsory medical insurance from the territorial fund of compulsory medical insurance in accordance with the agreement on the financial support of compulsory medical insurance;

in the form of funds of owners of premises in apartment buildings, received on the accounts of homeowners associations that manage apartment buildings, housing, housing and construction cooperatives and other specialized consumer cooperatives, management organizations, as well as on the accounts of specialized non-profit organizations that carry out activities aimed at ensuring overhaul of common property in apartment buildings, and created in accordance with the Housing Code of the Russian Federation, to finance the repair, overhaul of common property in apartment buildings;

in the form of the amounts of entrance and guarantee contributions of non-state pension funds, guarantee contributions of the Pension Fund of the Russian Federation paid to the fund for guaranteeing pension savings in accordance with Federal Law No. Federation in the formation and investment of pension savings, the establishment and implementation of payments from pension savings";

in the form of compensation amounts received by non-state pension funds, the Pension Fund of the Russian Federation in accordance with the Federal Law of December 28, 2013 N 422-FZ "On Guaranteeing the Rights of Insured Persons in the System of Compulsory Pension Insurance of the Russian Federation in the Formation and Investment of Pension Savings, Establishing and making payments at the expense of pension savings";

in the form of mandatory deductions (contributions) by developers to the compensation fund, formed in accordance with the Federal Law of July 29, 2017 N 218-FZ "On a public law company for the protection of the rights of citizens - participants in shared construction in the event of insolvency (bankruptcy) of developers and on making amendments to certain legislative acts of the Russian Federation";

in the form of subsidies received for reimbursement of expenses specified in Article 270 of this Code (with the exception of expenses specified in paragraph 5 of Article 270 of this Code);

15) in the form of the value of shares additionally received by the shareholder organization, distributed among shareholders by decision of the general meeting in proportion to the number of shares they own, or the difference between the par value of new shares received in exchange for the original shares and the par value of the shareholder's initial shares when distributed among shareholders upon an increase the authorized capital of a joint-stock company (without changing the shareholder's share in this joint-stock company);

16) in the form of a positive difference formed as a result of the revaluation of precious stones when changing the price lists of settlement prices for precious stones in accordance with the established procedure;

17) in the form of amounts by which in the reporting (tax) period there was a decrease in the authorized (share) capital of the organization in accordance with the requirements of the legislation of the Russian Federation;

18) in the form of the cost of materials and other property obtained during dismantling, dismantling during the liquidation of decommissioned facilities destroyed in accordance with Article 5 of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction and with Part 5 of the Annex verification of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction;

19) in the form of the cost of reclamation and other agricultural facilities (including on-farm water pipelines, gas and electric networks) received by agricultural producers, built at the expense of budgets of all levels;

20) in the form of property and (or) property rights that are received by organizations of the state stock of special (radioactive) raw materials and fissile materials of the Russian Federation from operations with material assets of state stocks of special (radioactive) raw materials and fissile materials and are aimed at restoring and maintaining these stocks ;

21) in the form of amounts of the taxpayer's accounts payable for the payment of taxes and fees, penalties and fines to budgets of different levels, for the payment of contributions, penalties and fines to the budgets of state off-budget funds, written off and (or) otherwise reduced in accordance with the legislation of the Russian Federation or by decision of the Government of the Russian Federation;

21.1) in the form of amounts of terminated liabilities of a bank under subordinated loan (deposit, loan, bond loan) agreements on the grounds provided for in Article 25.1 of the Federal Law "On Banks and Banking Activities", when taking measures against such a bank to prevent bankruptcy with the participation of the Central Bank Russian Federation or the state corporation "Deposit Insurance Agency";

21.2) in the form of property (including cash) received by the bank from the sale to the Central Bank of the Russian Federation of federal loan bonds specified in Part 6 of Article 3 of Federal Law No. 451-FZ of December 29, 2014 "On Amendments to Article 11 of the Federal Law" On Insurance of Deposits of Individuals in Banks of the Russian Federation" and Article 46 of the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)";

21.3) in the form of amounts of terminated taxpayer obligations, which are determined by an act of the Government of the Russian Federation adopted on the basis of part 3 of Article 5 of Federal Law No. 263-FZ of July 29, 2018 "On Amendments to Certain Legislative Acts of the Russian Federation";

22) in the form of property received free of charge by state and municipal educational institutions for the conduct of the main types of activities, as well as in the form of property received free of charge by organizations engaged in educational activities that are non-profit organizations, for the implementation of educational activities;

23) in the form of fixed assets received by organizations that are part of the structure of the All-Russian public-state organization "Voluntary Society for Assistance to the Army, Aviation and Navy of Russia" (DOSAAF of Russia) (when transferring them between two or more organizations that are part of the structure of DOSAAF of Russia), used for the training of citizens in military specialties, the military-patriotic education of youth, the development of aviation, technical and military-applied sports in accordance with the legislation of the Russian Federation;

24) in the form of a positive difference obtained from the revaluation of securities at market value;

25) in the form of amounts of restored reserves for depreciation of securities (with the exception of reserves, the costs of creating which, in accordance with Article 300 of this Code, previously reduced the tax base);

26) in the form of property (except for monetary funds), which is received free of charge by unitary enterprises from the owner of the property of this enterprise or a body authorized by him. The procedure for recognizing received funds as part of income is similar to the procedure for recognizing subsidies as income, provided for in paragraph 4.1 of Article 271 of this Code;

27) in the form of property (including money) and (or) property rights received by a religious organization in connection with the performance of religious rites and ceremonies and from the sale of religious literature and religious items;

28) in the form of amounts received by universal service operators from the universal service reserve in accordance with the legislation of the Russian Federation in the field of communications;

29) in the form of property, including monetary funds, and (or) property rights received by a mortgage agent or a specialized company in connection with their statutory activities;

31) in the form of income from the investment of pension savings funds formed in accordance with the legislation of the Russian Federation, received by organizations acting as insurers for compulsory pension insurance;

32) in the form of capital investments in the form of inseparable improvements to the leased property made by the lessee, as well as capital investments in fixed assets provided under a gratuitous use agreement in the form of inseparable improvements made by the borrowing organization;

33) income of ship owners received from the operation and (or) sale of ships registered in the Russian International Register of Ships. For the purposes of this chapter, the operation of ships registered in the Russian International Register of Ships means the use of such ships for the carriage of goods, passengers and their baggage and the provision of other services related to the implementation of these transportations, provided that the point of departure and (or) destination are located beyond outside the territory of the Russian Federation, as well as the lease of such vessels for the provision of such services;

33.1) in the form of funds received by state institutions from the provision of services (performance of work);

33.2) income of shipowners received from the operation and (or) sale of ships built by Russian shipbuilding organizations after January 1, 2010 and registered in the Russian International Register of Ships. At the same time, the operation of such vessels for the purposes of this subparagraph means their use for the carriage of goods, passengers and their luggage, towing and provision of these services and activities, regardless of the location of the point of departure and (or) destination, as well as the lease of such vessels for this use;

34) income of a development bank - a state corporation, as well as income in the form of profit of foreign companies controlled by such a bank;

34.1) income of an autonomous non-profit organization established in accordance with the Federal Law "On protecting the interests of individuals who have deposits in banks and separate structural subdivisions of banks registered and (or) operating on the territory of the Republic of Crimea and on the territory of the federal city of Sevastopol";

34.2) in the form of funds remaining after the liquidation of an autonomous non-profit organization established in accordance with the Federal Law "On protecting the interests of individuals who have deposits in banks and separate structural divisions of banks registered and (or) operating on the territory of the Republic of Crimea and on the territory of the federal city of Sevastopol", and credited to the fund of compulsory insurance of deposits;

35) in the form of amounts of income from investing savings for housing provision of military personnel, intended for distribution to nominal savings accounts of participants in the savings and mortgage system for housing provision of military personnel;

37) in the form of property and (or) property rights received under a concession agreement, an agreement on public-private partnership, an agreement on municipal-private partnership in accordance with the legislation of the Russian Federation, with the exception of funds received from the concessor or public partner for the specified agreements;

38) income of the person performing the functions of providing financial support for the overhaul of apartment buildings, the resettlement of citizens from dilapidated housing stock and the modernization of utility infrastructure systems in accordance with the Federal Law of July 21, 2007 N 185-FZ "On the Fund for Assistance to the Reform of Housing and Communal Services "(hereinafter referred to as the Federal Law "On the Fund for Assistance to the Reform of the Housing and Communal Services") of a non-profit organization, which are received from the placement (investment) of temporarily free funds;

39) funds within the limits of payment to the victim, received by the insurer that made direct compensation for losses to the victim in accordance with the legislation of the Russian Federation on compulsory insurance of civil liability of vehicle owners, from the insurer that insured the civil liability of the person who caused damage to the property of the victim;

40) in the form of the cost of airtime and (or) print space received free of charge by taxpayers in accordance with the legislation of the Russian Federation on elections and referendums;

41) income in cash and (or) in kind received by an all-Russian public association operating in accordance with the legislation of the Russian Federation on public associations, the Olympic Charter of the International Olympic Committee and on the basis of recognition by the International Olympic Committee, or an all-Russian public association exercising its activities in accordance with the legislation of the Russian Federation on public associations, the Constitution of the International Paralympic Committee and on the basis of recognition by the International Paralympic Committee, namely:

income from the sale of property rights (including the rights to use the results of intellectual activity and (or) means of individualization);

in the form of property (including cash) and property rights received from the autonomous non-profit organization "Organizing Committee of the XXII Olympic Winter Games and XI Paralympic Winter Games 2014 in Sochi";

income received from the placement of temporarily free cash.

The income specified in this subparagraph is not taken into account when determining the tax base, provided that the income received is used for the purposes of the activity provided for in Articles 11 and 12 of the Federal Law of December 4, 2007 N 329-FZ "On Physical Culture and Sports in the Russian Federation", and also the statutory documents of the indicated all-Russian public associations;

42) in the form of cash, real estate, securities transferred for the formation or replenishment of the target capital of a non-profit organization in accordance with the procedure established by Federal Law of December 30, 2006 N 275-FZ "On the procedure for the formation and use of the target capital of non-profit organizations" and returned to the donor or its legal successors in the event of dissolution of the endowment of a non-profit organization, cancellation of a donation, or otherwise, if the return of property is provided for by the donation agreement and (or) Federal Law of December 30, 2006 N 275-FZ "On the procedure for the formation and use of endowment capital of non-profit organizations" . When returning real estate or securities, the donor takes into account such property at the cost (residual value) at which it was recorded in the tax records of the donor on the date of transfer of such property to replenish the target capital of the non-profit organization. The legal successors of the donor account for such property at cost (residual value) as of the date of its transfer to replenish the endowment of the non-profit organization;

43) interest from the placement on deposit accounts in credit institutions of funds received for the formation or replenishment of the target capital of a non-profit organization or returned by the management company in connection with the termination of the contract for trust management of property, dividends, interest (coupon) income, other subject to transfer to management management company in accordance with Federal Law of December 30, 2006 N 275-FZ "On the procedure for the formation and use of the target capital of non-profit organizations" income of a non-profit organization - the owner of the target capital from the redemption of securities received to replenish the target capital of a non-profit organization or returned by the manager by the company in connection with the termination of the contract of trust management of property;

44) funds received by the responsible member of the consolidated group of taxpayers from other participants in this group for the payment of tax (advance payments, penalties, fines) in accordance with the procedure established by this Code for the consolidated group of taxpayers, as well as funds received by the participant of the consolidated group of taxpayers from the responsible a member of this group of taxpayers in connection with the specification of the amounts of tax (advance payments, penalties, fines) payable for this group of taxpayers;

45) income received by the Organizing Committee "Russia-2018", subsidiaries of the Organizing Committee "Russia-2018", the Russian Football Union, local organizational structure, producers of FIFA media information, suppliers of goods (works, services) FIFA, commercial partners of UEFA, suppliers of goods (works, services) by UEFA and UEFA broadcasters as defined by the Federal Law "On the preparation and holding in the Russian Federation of the 2018 FIFA World Cup, the 2017 FIFA Confederations Cup, the 2020 UEFA European Football Championship and amending certain legislative acts of the Russian Federation" and being Russian organizations, in connection with the implementation of measures provided for by the said Federal Law, including from the placement of temporarily free funds, in the form of exchange rate differences, fines, penalties and (or) other sanctions for violation of obligations under agreements, in the form of compensation for loss or damage from any use management of stadiums, training bases and other sports facilities intended for the preparation and holding of sports competitions, as well as in the form of property (property rights) received free of charge. Incomes in the form of dividends paid to such taxpayers are not included in the tax base if, following the results of each tax period from the date of establishment of the organization paying dividends, the share of income received in connection with the implementation of measures provided for by the said Federal Law is at least 90 percent of the sum of all incomes for the corresponding tax period;

46) in the form of fees for air navigation services for aircraft flights in the airspace of the Russian Federation, as well as in the form of funds received from the federal budget as compensation for the costs of air navigation services for flights of state aviation, exempted in accordance with the legislation of the Russian Federation from payment for air navigation services;

47) pension contributions to non-state pension funds, if at least 97 percent of them are directed to the formation of pension reserves of the non-state pension fund;

48) pension savings, including insurance premiums for compulsory pension insurance, formed in accordance with the legislation of the Russian Federation and this Code;

49) income of a non-state pension fund, which is a non-profit organization, received from the sale of shares of a joint-stock pension fund, which were acquired by the specified non-profit organization as a result of its reorganization in the form of separation of a non-profit pension fund with its simultaneous transformation into a joint-stock pension fund, provided that this income is directed to formation of an insurance reserve of a non-state pension fund;

50) in the form of dividends received from foreign organizations, the actual source of payment of which is Russian organizations, to which the taxpayer has the actual right and to which the tax rates established by subparagraphs 1 - 2 of paragraph 3 of Article 284 of this Code were applied, taking into account the procedure provided for in Article 312 of this Code.

The income specified in this subparagraph shall not be taken into account when determining the tax base, subject to documentary confirmation of the withholding of tax by the tax agent or documentary confirmation of the grounds for applying the tax rate provided for by subparagraph 1 or 1.1 of paragraph 3 of Article 284 of this Code, and the existence of the actual right to these dividends;

50.1) in the form of dividends received from a foreign organization to which the taxpayer has the actual right in accordance with paragraph 1.6 of Article 312 of this Code;

51) in the form of exclusive rights to inventions, utility models, industrial designs, programs for electronic computers, databases, topologies of integrated circuits, production secrets (know-how) created during the implementation of the state contract, which are transferred to the contractor of this state contract a state customer under an agreement on gratuitous alienation;

52) in the form of income received by an organization that, in accordance with federal law, performs the functions of compulsory insurance of deposits of individuals in banks of the Russian Federation (hereinafter in this subparagraph - the organization), when implementing the measures provided for in Articles 3 - 3.2 of the Federal Law of December 29, 2014 No. 451-FZ "On Amendments to Article 11 of the Federal Law "On Insurance of Individuals' Deposits in Banks of the Russian Federation" and Article 46 of the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)", namely:

coupon yield on federal loan bonds contributed as a property contribution of the Russian Federation to the organization's property;

income in the form of interest received by the organization under subordinated loan agreements concluded with banks and on subordinated bonds of banks;

income in the form of fines paid by banks in connection with the violation of their obligations in the implementation of the measures provided for in articles 3 - 3.2 of the Federal Law of December 29, 2014 N 451-FZ "On Amendments to Article 11 of the Federal Law" On insurance of deposits of individuals in banks of the Russian Federation" and Article 46 of the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)";

income in the form of dividends received by the organization on preferred shares of banks acquired by paying for these shares with federal loan bonds made as a property contribution of the Russian Federation to the property of the organization;

income in the form of dividends received by the organization on ordinary shares of banks acquired as a result of exchanging the organization's claims under subordinated loan agreements for ordinary shares of banks or converting subordinated bonds of banks into ordinary shares of banks;

coupon income on federal loan bonds transferred by the organization to banks under subordinated loan agreements, included in the income of the organization on the basis of paragraph 5 of Article 282.1 of this Code.

The income specified in paragraphs two to six of this subparagraph shall not be taken into account when determining the tax base, provided that such income is transferred by the organization in full to the federal budget in accordance with the federal law, the agreement on the property contribution of the Russian Federation to the property of the organization or the decision of the board of directors of the organization . With regard to the income specified in paragraph three of this subparagraph, the condition of transfer to the federal budget shall not apply in the event of termination of the bank's obligations, as well as in the event of an exchange (conversion) of claims under a subordinated loan (deposit, loan) agreement or under the terms of a bonded loan for shares a bank on the grounds provided for in Article 25.1 of the Federal Law "On Banks and Banking Activity";

53) income received by a taxpayer - a controlling person from a foreign company controlled by him, as a result of the distribution of profits of this company, if the income in the form of profits of this company was indicated by this taxpayer in the tax declaration (tax declarations) submitted (submitted) for the relevant tax periods, and under the conditions established by this subparagraph.

The income specified in this subparagraph shall not be taken into account when determining the tax base in accordance with this paragraph in an amount not exceeding the amount of income in the form of profit of a controlled foreign company indicated by the taxpayer - Russian controlling person in the tax declaration (tax declarations) submitted (submitted) for the relevant tax years.

The income specified in this subparagraph shall be exempt from taxation, provided that the taxpayer has the following documents:

payment documents (copies thereof) confirming the payment by this taxpayer of tax on income in the form of profit of a controlled foreign company, which is the source of income payment in favor of the Russian controlling person, and (or) payment of tax calculated on such profit in accordance with the laws of foreign states and ( or) the legislation of the Russian Federation, as well as corporate income tax calculated in respect of the profit of the permanent establishment of this controlled foreign company in the Russian Federation and subject to offset in accordance with paragraph 11 of Article 309.1 of this Code;

documents (copies thereof) confirming the payment of income from the profit of a controlled foreign company, the income in the form of which was indicated by this taxpayer in the tax declaration (tax declarations) submitted (submitted) for the relevant tax periods;

54) income received by a joint-stock company, 100 percent of whose shares belong to the Russian Federation, from the sale of shares of other organizations, provided that such income is transferred in full to the federal budget;

55) in the form of services received free of charge, which are the subject of transactions specified in subparagraph 6 of paragraph 4 of Article 105.14 of this Code;

56) in the form of funds received by all-Russian sports federations or professional sports leagues from the organizers of gambling in betting shops on the basis of agreements concluded in accordance with Federal Law No. games and on amendments to some legislative acts of the Russian Federation. These funds are not taken into account when determining the tax base, provided they are used within the time limits and for the purposes determined in accordance with Federal Law No. 329-FZ of December 4, 2007 "On Physical Culture and Sports in the Russian Federation";

57) income from the sale of shares (stakes) received by an organization that, as of the date of conclusion of an agreement providing for the transfer of ownership of shares (stakes), is subject to laws introduced by foreign states, economic, political, military or other associations of countries, international financial and other organizations in relation to the Russian Federation, constituent entities of the Russian Federation, other state entities, legal entities registered on the territory of the Russian Federation, citizens of the Russian Federation prohibitive, restrictive and (or) other similar measures, consisting in the establishment of prohibitions and (or) restrictions on settlements and (or) the implementation of financial transactions, prohibitions or restrictions on the conduct of transactions related to debt financing and (or) the acquisition or alienation of securities (stakes in authorized capital), while simultaneously fulfilling the following conditions:

after the said shares (stakes) are sold, the organization specified in the first paragraph of this subparagraph directly or indirectly participates in the organization, the shares (stakes) of which are being sold, and the share of such participation is at least 50 percent;

the buyer of shares (stakes) is not an interdependent person with the organization specified in the first paragraph of this clause, on the grounds provided for in Article 105.1 of this Code;

as of the date of conclusion of an agreement providing for the transfer of ownership of shares (stakes), the Russian Federation has the right to directly or indirectly dispose of more than 50 percent of the total number of votes attributable to voting shares (stakes) that make up the authorized capital of the organization specified in the first paragraph of this subparagraph ;

as of the date of sale of shares (stakes), the organization specified in the first paragraph of this subparagraph, for at least 365 consecutive calendar days, directly or indirectly participates in the organization whose shares (stakes) are being sold, and the share of such participation is at least 50 percent;

58) income of an international holding company in the form of profit of controlled foreign companies, in respect of which such an international holding company is recognized as a controlling person, subject to accounting when determining the tax base of this international holding company for tax periods ending before January 1, 2029, if on the date determined in accordance with paragraph 3 of Article 25.15 of this Code, such an international company is recognized as an international holding company in accordance with Article 24.2 of this Code.

2. When determining the tax base, targeted revenues are also not taken into account (with the exception of targeted revenues in the form of excisable goods). These include targeted revenues for the maintenance of non-profit organizations and the conduct of their statutory activities, received free of charge on the basis of decisions of state authorities and local governments and decisions of management bodies of state non-budgetary funds, as well as targeted revenues from other organizations and (or) individuals and used intended recipients. At the same time, taxpayers - recipients of the specified targeted revenues are required to keep separate records of income (expenses) received (incurred) within the framework of targeted revenues.

Targeted revenues for the maintenance of non-profit organizations and their statutory activities include:

1) contributions made by founders (participants, members) in accordance with the legislation of the Russian Federation on non-profit organizations, donations recognized as such in accordance with the civil legislation of the Russian Federation, income in the form of works (services) received free of charge by non-profit organizations, performed (rendered) on the basis of relevant agreements, as well as deductions for the formation, in accordance with the procedure established by Article 324 of this Code, of a reserve for repairs, major repairs of common property, which are made to a homeowners association, housing cooperative, horticultural, gardening, garage-building, housing-construction cooperative or other a specialized consumer cooperative by their members;

1.1) targeted revenues for the formation of funds to support scientific, scientific and technical, innovative activities, created in accordance with the Federal Law of August 23, 1996 N 127-FZ "On Science and State Scientific and Technical Policy";

2) property, property rights passing to non-profit organizations under a will by way of inheritance;

3) funds provided from the federal budget, budgets of constituent entities of the Russian Federation, local budgets, budgets of state extra-budgetary funds for the implementation of the statutory activities of non-profit organizations;

4) funds and other property, property rights received for the implementation of charitable activities;

5) the total contribution of the founders of non-state pension funds;

6) has become invalid;

6.1) has become invalid;

7) the proceeds from the owners to the institutions created by them, used for the intended purpose;

8) contributions from the bar associations of constituent entities of the Russian Federation for the general needs of the Federal Chamber of Lawyers in the amount and in the manner determined by the All-Russian Congress of Lawyers; deductions of attorneys for the general needs of the bar association of the relevant subject of the Russian Federation in the amount and in the manner determined by the annual meeting (conference) of attorneys of the bar chamber of this subject of the Russian Federation, as well as for the maintenance of the relevant bar office, bar association or law office;

9) funds received by trade union organizations in accordance with collective agreements (agreements) for the holding by trade union organizations of socio-cultural and other events provided for by their statutory activities;

10) funds used for their intended purpose, received by structural organizations of DOSAAF of Russia from the federal executive body authorized in the field of defense, and (or) another executive body under the general agreement, as well as targeted deductions from organizations included in the structure of DOSAAF of Russia, used in in accordance with the constituent documents for the training, in accordance with the legislation of the Russian Federation, of citizens in military registration specialties, the military-patriotic education of youth, the development of aviation, technical and military-applied sports;

10.1) funds received by non-profit organizations free of charge to ensure the conduct of statutory activities not related to entrepreneurial activities, from taxpayer structural divisions (branches) created by them in accordance with the legislation of the Russian Federation (hereinafter, for the purposes of this article - structural divisions (branches), listed by structural subdivisions (departments) at the expense of targeted revenues received by them for the maintenance and conduct of statutory activities;

10.2) funds received by structural subdivisions (branches) from non-profit organizations that created them in accordance with the legislation of the Russian Federation, transferred by non-profit organizations at the expense of earmarked revenues received by them for the maintenance and conduct of statutory activities;

11) property (including funds) and (or) property rights received by religious organizations for the implementation of their statutory activities;

12) funds received by a professional association of insurers established in accordance with the Federal Law of April 25, 2002 N 40-FZ "On Compulsory Insurance of Civil Liability of Vehicle Owners":

to finance the compensation payments provided for by the said Federal Law;

to form a fund in accordance with the requirements of international systems of civil liability insurance of vehicle owners, in which a professional association of insurers is a member;

as a fee for the accreditation of technical inspection operators in accordance with the legislation in the field of technical inspection of vehicles;

13) cash, real estate, securities received by non-profit organizations for the formation or replenishment of endowment, which are carried out in accordance with the procedure established by Federal Law No. 275-FZ of December 30, 2006 "On the procedure for the formation and use of endowment capital of non-profit organizations";

14) funds received by non-profit organizations - owners of target capital from management companies engaged in trust management of property constituting target capital, in accordance with the Federal Law "On the procedure for the formation and use of target capital of non-profit organizations";

15) funds received by non-profit organizations from specialized endowment management organizations in accordance with the Federal Law "On the procedure for the formation and use of endowment capital of non-profit organizations";

16) property rights in the form of the right to use state and municipal property free of charge, received by decisions of state authorities and local self-government bodies by non-profit organizations for their statutory activities;

17) funds received by a professional association of insurers established in accordance with the Federal Law of June 14, 2012 N 67-FZ "On Compulsory Insurance of the Carrier's Civil Liability for Causing Harm to Life, Health, Property of Passengers and on the Procedure for Compensation for Such Harm Caused by transportation of passengers by metro":

to finance compensation payments provided for by the said Federal Law;

to compensate for the missing part of the assets when transferring the insurance portfolio;

in accordance with the said Federal Law in the form of amounts of reimbursement of compensation payments and expenses incurred in connection with the consideration of claims of victims for compensation payments;

17.1) funds received by a professional association of insurers established in accordance with the Federal Law of July 27, 2010 N 225-FZ "On compulsory insurance of civil liability of the owner of a hazardous facility for causing harm as a result of an accident at a hazardous facility":

for the implementation of compensation payments provided for by the said Federal Law;

to compensate for the missing part of the assets when transferring the insurance portfolio;

in accordance with the said Federal Law in the form of amounts of reimbursement of compensation payments and expenses incurred in connection with the consideration of claims of victims for compensation payments;

18) funds received by the association of tour operators in the field of outbound tourism, created in accordance with the Federal Law of November 24, 1996 N 132-FZ "On the basics of tourism activities in the Russian Federation", in the form of contributions transferred to the reserve fund of the association of tour operators in the field outbound tourism and personal liability funds of tour operators in the field of outbound tourism, intended to finance the costs provided for by the specified Federal Law for the provision of emergency assistance to tourists and for compensation for real damage to tourists resulting from the tour operator's failure to fulfill obligations under an agreement on the sale of a tourist product in the field of outbound tourism;

19) funds received by an association of insurers established in accordance with Federal Law No. 260-FZ of July 25, 2011 "On State Support in the Sphere of Agricultural Insurance and on Amendments to the Federal Law "On the Development of Agriculture", and are intended to form fund of compensation payments and the implementation of compensation payments provided for by the said Federal Law;

20) funds in the form of contributions received by a non-profit organization, the founder of which is the Russian Federation represented by the Government of the Russian Federation, the main objectives of which are to support domestic cinematography, increase its competitiveness, provide conditions for creating high-quality films that meet national interests, and popularize national films in the Russian Federation, within the limits of the amounts provided by the specified non-profit organization on the terms of equity participation for the production of national films or in reimbursement of expenses for these purposes, the source of which is budgetary appropriations.

3. In case of reorganization of organizations, when determining the tax base, the value of property, property and non-property rights having a monetary value, and (or) obligations received (transferred) in the order of succession during the reorganization of legal persons who were acquired (created) by the reorganized organizations before the date of completion of the reorganization.

Commentary on Art. 251 of the Tax Code

The Presidium of the Supreme Arbitration Court of the Russian Federation in paragraph 8 of the information letter dated December 22, 2005 N 98 "Review of the practice of resolving cases by arbitration courts related to the application of certain provisions of Chapter 25 of the Tax Code of the Russian Federation" clarified that with the cash method of determining income and expenses, advance payment for goods is taken into account when determining tax income tax base. According to the Supreme Arbitration Court of the Russian Federation, advance payment as income not taken into account when determining the tax base is named in subparagraph 1 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation only in relation to taxpayers who determine income and expenses on an accrual basis.

Attention!

The Ministry of Finance of Russia, in a letter dated April 25, 2011 N 03-03-06 / 1/268, stated the position, on the basis of which it follows that, according to subparagraph 1 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation, when determining the tax base, income in the form of property, property rights, works or services received from other persons in the order of advance payment for goods (works, services) by taxpayers who determine income and expenses on an accrual basis. The money received from the sale of gift certificates is actually a prepayment for goods that will be purchased in the future. In this case, the exchange of a gift certificate for goods is recognized as the sale of goods. Thus, the amounts of payment for gift certificates received by the organization (seller) from potential buyers on account of the forthcoming delivery of goods are taken into account in income from sales for the purposes of taxation of profits on the date of direct sale of goods. In the event that, after the expiration of the period agreed by the parties, the gift certificate was not presented by the buyer, the amount of advance payment received by the seller, for the purposes of taxation of profits, is property received free of charge and is taken into account for the purposes of taxation of profits in accordance with paragraph 8 of Article 250 of the Tax Code of the Russian Federation.

It should also be noted that the letter of the Ministry of Finance of the Russian Federation dated July 16, 2009 N 03-03-06 / 1/474 states that, in accordance with subparagraph 1 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation, funds received from other persons in advance payment are not are taken into account for the purposes of taxation of profits by taxpayers who determine income and expenses on an accrual basis only if such amounts were received in the order of prepayment for goods (works, services). Accordingly, the funds received by the taxpayer in the order of advance payment of compensation for damages are subject to inclusion in non-operating income.

Attention!

When applying subparagraph 2 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation, it should be borne in mind that the amount of security deposit received by an organization providing services for the transportation of passengers by public urban passenger transport, collected when selling tickets issued on an electronic medium, when determining tax base for corporate income tax are not taken into account. If the electronic media is not returned, then the amount of security deposit received for the unreturned electronic media should be considered as proceeds from the sale of electronic media, subject to corporate income tax. This position is contained in the letter of the Ministry of Finance of Russia dated 07/08/2011 N 03-07-11 / 185.

It should also be noted that according to subparagraph 2 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation, when the lessor receives a payment from the lessee to ensure the fulfillment of obligations, provided that the said amounts are returned after the expiration of the lease agreement, the taxpayer-lessor does not receive income taken into account when calculating taxable profit. This position is reflected in the letter of the Ministry of Finance of the Russian Federation dated September 17, 2009 N 03-07-11 / 231.

In a situation where the parties, when carrying out economic activities, before concluding a contract for the sale of property, conclude a preliminary contract for the sale and purchase, under the terms of which the buyer makes a preliminary payment in favor of the seller in relation to the property acquired in the future, then the payment established by the preliminary contract for the sale and received as security for an obligation, is not taken into account in income for the purposes of taxation of profits of organizations.

A similar position is set out in the letter of the Ministry of Finance of the Russian Federation of March 12, 2010 N 03-03-06 / 1/131.

Attention!

When applying the norms of subparagraph 3 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation, the following should be borne in mind.

In the event that an organization has debts on loans and interest accrued on them to its participants and the organization announces an increase in its authorized capital, which will be paid by the participants by offsetting their monetary claims against the organization in the form of the said loans and interest on them, when offsetting the participants' monetary claims and (or) third parties in payment for contributions to the authorized capital or additional contributions to the company, the authorized capital of which is increased, the income subject to inclusion in the tax base for income tax does not arise. This position is confirmed by the position of the Ministry of Finance of Russia, stated in the letter dated 01.08.2011 N 03-03-06/1/439.

Attention!

By virtue of the norms of subparagraph 3.1 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation, when restoring VAT by a bank shareholder on property received by the bank as a contribution to the authorized capital, VAT restored by the shareholder for the purposes of taxing corporate profits is not taken into account as part of the bank's income. This position is reflected in the letter of the Ministry of Finance of Russia dated June 24, 2009 N 03-07-05 / 24.

Attention!

As stated in the letter of the Ministry of Finance of Russia dated September 20, 2011 N 03-03-06 / 1/567, the provisions of the norm of subparagraph 4 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation relate to income received by a participant only in connection with the withdrawal (withdrawal) from a business company or partnership or in connection with the distribution of property of the liquidated economic company. In the event of a voluntary reduction of the charter capital by an organization, a participant in such an organization receiving the relevant property receives income that is taken into account for the purposes of taxing the profits of organizations.

It is also not clear whether it is legal not to include in the composition of income payments from the sale of a share.

Letter No. 03-03-04/1/222 of March 14, 2006 of the Ministry of Finance of Russia clarified that when selling a share in the charter capital of an LLC to a third party, the taxpayer, for tax purposes, has the right to reduce income from the sale of the share by the amount of the contribution to the charter capital and by the amount expenses related to the sale of the share.

At the same time, the Ministry of Finance of Russia indicated that when selling a share in the authorized capital of an LLC, it is necessary to be guided precisely by the rules of Article 268 of the Tax Code of the Russian Federation.

According to the Federal Antimonopoly Service of the Moscow District, set out in Decree N KA-A40 / 5137-06 of June 15, 2006, based on subparagraph 2.1 of paragraph 1 of Article 268 of the Tax Code of the Russian Federation, it is legitimate to take into account when determining the tax base for income tax, the purchase price of a share and related acquisition and sale of expenses in full, including the part exceeding the proceeds.

However, local tax authorities support the point of view that subparagraph 4 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation does not regulate the situation with the sale of a share.

Such tax authorities are guided, as a rule, by the letter of the Ministry of Finance of Russia dated 06.03.2006 N 03-03-02 / 53.

It notes that the norm enshrined in this letter can be applied to the case of termination by the taxpayer of participation in a limited liability company in connection with the sale of a share in the authorized capital. At the same time, accounting for the purposes of taxation of profits of organizations of a loss in the form of an excess of the value of a contribution to the authorized capital of a company over income from its sale is not provided for by the Tax Code of the Russian Federation. Thus, when determining the tax base for corporate income tax, income from the sale of a share in the authorized capital of a limited liability company within the limits of the contribution of a company member is not taken into account. A loss in the form of an excess of the value of a contribution to the authorized capital of a company over income from its sale is not taken into account for profit tax purposes. The excess of income from sales over the amount of the contribution of a member of the company is taken into account as part of the taxpayer's income from sales. At the same time, on the basis of subparagraph 3 of paragraph 1 of Article 268 of the Tax Code of the Russian Federation, this excess may be reduced by the amount of expenses directly related to the sale of a share in the authorized capital.

It should be borne in mind that in a letter dated January 21, 2010 N 03-03-06 / 2/5, the Ministry of Finance of Russia came to the conclusion that the taxpayer's income from the sale of a share to a participant for profit tax purposes is taken into account minus the costs associated with the acquisition and sale of a share. At the same time, the financial department referred to subparagraph 3 of paragraph 1 of Article 268 of the Tax Code of the Russian Federation.

Attention!

In practice, when leaving (withdrawing) from a business company or partnership, or when distributing the property of a business company or partnership being liquidated between its participants, a situation may arise when the price of the share being sold is lower than the price of its acquisition.

On this issue, the financial department indicated that if, when a member of a business company leaves the company, the amount of income received by him in the form of property and (or) property rights is less than his contribution to the authorized capital of this company, the resulting loss may be included in expenses for the purposes of profit taxation. This position is stated in the letter of the Ministry of Finance of Russia dated November 11, 2011 N 03-03-06/1/742.

The Ministry of Finance of Russia has repeatedly pointed out that the list of Article 251 of the Tax Code of the Russian Federation is closed. In particular, in a letter dated 10.05.2006 N 03-03-04 / 1/428, the Ministry of Finance of Russia in relation to subparagraph 4 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation explains that if the receipt of part of the property of a business company by a foreign organization - a participant in this company does not is connected neither with the withdrawal of this participant from the company, nor with the liquidation of the company, in accordance with the legislation of the Russian Federation on taxes and fees, income received as a result of the distribution in favor of a foreign organization of the property of a business company associated with a voluntary decrease in the authorized capital of this company is subject to taxation tax withheld at the source of payment of income, in the full amount of the payment.

At the same time, the Russian Ministry of Finance drew attention to the fact that the taxation of income of foreign organizations from sources in the Russian Federation is carried out taking into account the provisions of the agreement on the avoidance of double taxation of income and property, if such is in force in relations between the Russian Federation and the state of which this foreign organization is a resident.

Attention!

When applying the norms of subparagraph 5 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation, it is established that the contribution of a participant in a simple partnership made for the purpose of carrying out activities by members of the partnership, as well as the return of contributions made, are not taken into account for profit tax purposes.

A similar position is taken by the tax authority, which indicated that, in accordance with Chapter 25 of the Tax Code of the Russian Federation, it is determined that income received from participation in a partnership is included in non-operating income of taxpayers - participants in a partnership - organizations and is subject to income tax in the manner set out above . The contributions of the organization - a participant in a simple partnership in the implementation of joint activities and their return within the initial contribution after the termination of the contract are not subject to taxation for income tax. This position is stated in the letter of the Office of the Ministry of Taxes of the Russian Federation for the city of Moscow dated March 24, 2004 N 26-12 / 20572.

Attention!

There are also many disputes between taxpayers and tax authorities regarding whether all participants in the implementation of programs for the provision of gratuitous assistance have the right to apply subparagraph 6 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation.

The Decree of the Federal Antimonopoly Service of the Central District dated January 18, 2007 N A48-1590 / 06-15 notes that the certificate confirms that the funds belong to humanitarian or technical assistance (assistance) and, as a result, indicates the conclusion of a contract with the appropriate party, and therefore serves as evidence sale of goods (works, services) as part of the provision of free technical assistance.

As the court pointed out, in the annex to the certificate according to which the organization is the recipient of technical assistance funds, the company is indicated as an organization co-executing work under an agreement concluded between the organization and the counterparty. Under such circumstances, the court concluded that the company was lawfully applying the disputed benefits.

The Federal Antimonopoly Service of the West Siberian District, in its Decree N F04-6239/2006 (26595-A45-26) dated September 27, 2006, came to the conclusion that tax benefits are provided to all participants in the implementation of programs for the provision of gratuitous assistance with a certificate. Therefore, when applying subparagraph 6 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation, only the fact that the funds received by the taxpayer came from the funds of a foreign donor in connection with the implementation of the technical assistance program matters.

Attention!

In Resolutions of the Federal Antimonopoly Service of the Urals District dated March 21, 2006 N F09-1735 / 06-S7 and the Federal Antimonopoly Service of the Volga District dated April 4, 2006 N A06-3123U / 4-5/05, the courts indicate that an interest-free loan issued by a taxpayer is not income. Also, as a result of the return of previously received funds by concluding a loan agreement, the taxpayer did not receive income and, accordingly, should not consider the returned amounts as income.

And, according to the above legal norm, funds received under credit or loan agreements are not taken into account when determining the tax base for income tax.

Attention!

The Presidium of the Supreme Arbitration Court of the Russian Federation in Resolution No. 3009/04 of August 3, 2004 came to the conclusion that the funds received under a loan agreement (including interest-free) on the terms of return are not received free of charge and are not included in the tax base when the taxpayer calculates tax on profit.

At the same time, in paragraph 2 of the Review of the practice of resolving cases by arbitration courts related to the application of certain provisions of Chapter 25 of the Tax Code of the Russian Federation, brought to light by the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of December 22, 2005 N 98 (hereinafter referred to as the Review of December 22, 2005), it was concluded that that, receiving property under a gratuitous use agreement, the organization receives the right to use this property free of charge. Therefore, paragraph 8 of Article 250 of the Tax Code of the Russian Federation should be applied, according to which income in the form of gratuitously received property (works, services) or property rights, with the exception of cases specified in Article 251 of the Tax Code of the Russian Federation, is recognized as non-operating income for income tax .

The conclusions set out in paragraph 2 of the Review dated 12/22/2005 were later duplicated in the letter of the Russian Ministry of Finance dated 04/19/2006 N 03-03-04/1/359.

Note that the logic of the Supreme Arbitration Court of the Russian Federation, set out in paragraph 2 of the Review of December 22, 2005, differs from the logic expressed in the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of August 3, 2004 N 3009/04 in relation to material benefits (unpaid interest) from obtaining borrowed funds on a gratuitous basis .

Nevertheless, the position expressed in paragraph 2 of the Review of December 22, 2005, as evidenced by the above letters and the court decision, does not mean a change in the position of the courts, the Ministry of Finance of Russia and the Federal Tax Service of Russia regarding the taxation of material benefits (unpaid interest) from receiving borrowed funds on gratuitous basis.

It seems that at present, a taxpayer receiving loans on a gratuitous basis has the right not to pay income tax on material benefits (unpaid interest) from obtaining borrowed funds on a gratuitous basis.

Attention!

When applying the norms of subparagraph 9 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation, certain features should be taken into account. It follows from the meaning of the norms of Article 990 of the Civil Code of the Russian Federation that the subject of a commission agreement is services, while in accordance with the norms of Article 702 of the Civil Code of the Russian Federation, the subject of a work contract is works, which means that a work contract is not a similar contract and cannot be applied to it. the provisions of subparagraph 9 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation.

A similar position is confirmed in judicial practice.

The essence of the matter.

The organization applied to the arbitration court with an application to recognize as illegal the decision of the tax authority to bring the taxpayer to tax liability, the requirements for the payment of tax and the payment of tax sanctions. Prior to making a decision on the case, the organization announced a waiver of the requirements to declare the decision illegal and the requirements of the tax inspectorate regarding the calculation of transport tax, the corresponding penalties and fines, as well as personal income tax penalties. By a decision left unchanged by the decision of the appellate instance, the court found the decision of the tax inspectorate to be unlawful in part. The refusal of the company from the stated requirements was accepted, and the proceedings in the case in this part were terminated. Judicial acts are motivated by the fact that the funds received by the company under work contracts and intended to pay for subcontract work are not its income and cannot be considered an object of taxation in accordance with paragraph 1 of Article 346.14 of the Tax Code of the Russian Federation. In the cassation appeal, the tax inspectorate asks to cancel the judicial acts. According to the interested person, it follows from the subject of the construction contract that it does not apply to contracts similar to those listed in subparagraph 9 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation. Taxpayers who are general contractors and apply the simplified taxation system, when calculating tax, must take into account as income the amounts received from the customer and related to payments for the work performed by subcontractors. Since the organization did not include in the taxable base the amount of income related to payments for work performed by subcontractors, the conclusion of the tax authority on the understatement of the taxable base is in accordance with the current legislation. At the meeting of the cassation instance, the representative of the tax authority supported the legal position set out in the complaint and clarified that the tax authority is asking to cancel judicial acts regarding the recognition of illegal non-normative acts of the tax authority on the calculation of taxes; in terms of fines and tax sanctions, judicial acts are not appealed. In response to the complaint and the court session, the representative of the organization supported the position set out in the judicial acts. Having studied the materials of the case, the arguments of the complaint, the response, after hearing the representatives of the parties, the arbitration court considers that the judicial acts are subject to partial cancellation due to the incorrect application of substantive law.

As can be seen from the case file, the tax authority conducted an on-site tax audit in respect of the taxpayer on the correctness of the calculation and timeliness of tax payment. Based on the results of the audit, an act was drawn up and a decision was made to bring the organization to tax liability for committing a tax offense. By this decision, the company is charged income tax. The decision of the tax authority is motivated by the fact that the taxpayer used a simplified taxation system with the object of taxation - income. The taxpayer did not reflect in the composition of its revenue the amounts used in the future to pay for subcontracted work. The total amount of the organization's revenue exceeded the amount of the marginal income established for the application of the simplified taxation system, and therefore lost the right to apply it. Disagreeing with non-normative acts of the tax authority, the organization appealed to the arbitration court.

The position of the court.

When considering the dispute, the court concluded that the obligations of the organization were reduced to the functions performed by the agent (commission agent), and therefore the funds received from customers and used to pay for work performed by subcontractors are not the income of the organization by virtue of subparagraph 9 paragraph 1 of Article 251 of the Tax Code of the Russian Federation and are not taken into account when calculating the single tax under the simplified taxation system. The court did not take into account the following. According to paragraph 2 of Article 346.11 of the Tax Code of the Russian Federation, the application of the simplified system of taxation by organizations provides for their release from the obligation to pay corporate income tax, corporate property tax and the unified social tax. Organizations applying the simplified taxation system are not recognized as taxpayers of value added tax, with the exception of value added tax payable in accordance with the Tax Code of the Russian Federation when goods are imported into the customs territory of the Russian Federation.

According to article 346.14 of the Tax Code of the Russian Federation, the object of taxation for a single tax when applying the simplified taxation system at the choice of the taxpayer is income or income reduced by the amount of expenses.

The court found that the object of taxation was income, which does not contradict Article 346.14 of the Tax Code of the Russian Federation and is not disputed by society.

In accordance with paragraph 1 of Article 702 of the Civil Code of the Russian Federation, under a work contract, one party (contractor) undertakes to perform certain work on the instructions of the other party (customer) and hand over its result to the customer, and the customer undertakes to accept the result of work and pay for it. Unless otherwise follows from the terms of the contract, the contractor has the right to involve a subcontractor in the performance of work. In this case, the contractor acts as a general contractor (clause 1 of Article 706 of the Civil Code of the Russian Federation). The subcontractor does not, as a general rule, enter into relations between the general contractor and the customer (paragraph 3 of Article 706 of the Civil Code of the Russian Federation).

Based on the subject of the construction contract, it does not apply to the contracts listed in subparagraph 9 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation.

The procedure for the formation of the tax base when applying the simplified taxation system is set out in Article 346.18 of the Tax Code of the Russian Federation. The law establishes that if the object of taxation is the company's income, then the monetary value of the company's income is recognized as the tax base.

Based on the foregoing, an organization that applies a simplified taxation system that performs work with the involvement of subcontractors, as part of the sales income, when determining the object of taxation, must take into account the entire amount of income related to payments for work performed, expressed in cash and (or) in kind, including the amount of income related to payments for work performed by subcontractors.

There are no exclusions from the gross proceeds of the general contractor for the cost of subcontracting works for tax purposes when applying the simplified system, if the object of taxation is precisely the gross proceeds.

Taking into account that the taxable base of the organization in the audited period was income (and not income reduced by expenses), it was not entitled to reduce its income for subcontracting expenses.

Satisfying the requirements of the organization to partially invalidate non-normative acts of the tax inspectorate, the court erroneously applied subparagraph 9 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation to disputed legal relations.

Thus, the conclusions of the court do not correspond to the circumstances of the case and the norms of the current legislation.

Since the organization's income exceeded the allowable amount established by paragraph 4 of Article 346.13 of the Tax Code of the Russian Federation, the tax authority came to the correct conclusion that it had lost the right to apply the simplified taxation system, and therefore assessed taxes under the general taxation system.

On the basis of the foregoing, the contested judicial acts are subject to cancellation in part of declaring illegal the decision of the tax authority in respect of income tax with a refusal to satisfy the applicant's claims in this part.

Regarding the recognition of illegal non-normative acts of the tax inspectorate on the accrual of penalties and fines to the company, judicial acts are not appealed and are subject to leave unchanged (based on the Decree of the Federal Antimonopoly Service of the North Caucasus District dated 02.05.2007 N F08-2251 / 2007-911A).

Thus, as can be seen from the above decision, the court can conclude that there were no relations arising under the agency agreement, therefore, there are no grounds for applying the norms of subparagraph 9 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation.

It should also be noted that in law enforcement practice situations may arise when an economic entity trades in goods under an agency agreement concluded with foreign organizations, and in relation to these goods, between the specified person and foreign organizations, a sale and purchase agreement has been concluded, in relation to the property being sold . Under such circumstances, the courts may conclude that the application of the tax benefit is illegal. In Ruling of the Supreme Arbitration Court of the Russian Federation dated April 15, 2009 N VAC-4030/09, the Court determined that if a person trades in goods under an agency agreement with foreign organizations and in relation to this product sales contracts were also concluded, then, by selling goods in the territory of the Russian Federation, the person acted as a seller and not an agent of foreign persons, which is why there are no grounds for applying the norms of subparagraph 9 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation.

Attention!

Questions also arise regarding the application of subparagraph 10 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation.

This norm does not directly answer the question of the legitimacy of excluding funds received from the sale of one's own bill from the tax base.

As explained in the letter of the Ministry of Finance of Russia dated March 21, 2006 N 03-03-04 / 1/268, for a taxpayer issuing a debt obligation, the specified transaction for profit tax purposes is not recognized as the sale of a security. Amounts received from the placement of own debt obligations, including bills of exchange, are not taken into account as income on the basis of subparagraph 10 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation, and the funds paid to pay off such debt obligations are not included in the taxpayer's expenses on the basis of paragraph 12 article 270 of the Tax Code of the Russian Federation.

A similar position is set out in the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated November 24, 2009 N 9995/09.

The essence of the matter.

Based on the results of an on-site tax audit of the organization on compliance with the legislation on taxes and fees, the tax authority issued a decision to bring the company to tax liability for committing a tax offense under paragraph 1 of Article 122 of the Tax Code of the Russian Federation, it was additionally assessed income tax and appropriate penalties and fines.

The basis for making such a decision in relation to income tax was, in the opinion of the tax authority, the organization's unreasonable understatement of the tax base by the amount of proceeds from the sale of two of its own promissory notes sold under a sale and purchase agreement to third parties.

The organization applied to the arbitration court with a demand to recognize the decision of the inspection partially invalid. According to the organization, the funds received from the placement of own bills of exchange are not included in income when determining the tax base for income tax on the basis of subparagraph 10 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation, since they are borrowed.

An analysis of the above legislative norms allows us to conclude that the disputed funds are classified as non-operating income only if they do not fall under the provisions contained in Article 251 of the Tax Code of the Russian Federation on targeted financing and targeted revenues.

The above is consistent with the explanations contained in the letter of the Federal Tax Service dated September 29, 2008 N ShT-15-3 / [email protected]: if the grant received by the organization does not satisfy at least one of the conditions of subparagraph 14 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation and there are no other grounds for classifying it as targeted financing or targeted revenues (paragraph 2 of Article 251 of the Tax Code of the Russian Federation), it is taken into account for the purposes of taxation of profits in composition of non-operating income.

The absence of the mentioned funds in the List of foreign and international organizations approved by the Government of the Russian Federation makes it impossible to consider the disputed funds received from the funds as a grant in the manner of subparagraph 14 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation, but does not exclude the application of the provisions of subparagraph 1 of paragraph 2 in the situation under consideration article 251 of the Tax Code of the Russian Federation on targeted income in the form of donations.

As follows from the charter of the organization, it is a non-profit organization, a public association established by legal entities that are public organizations to assist its members in achieving their statutory goals.

The organization sets as its main goal the unification of the efforts of civil society in the field of human rights protection.

The Foundation is a non-profit non-governmental organization, one of the goals of which is to support non-profit non-governmental organizations in other countries that contribute to the implementation of positive social change. Such support includes funding for public needs, including charitable activities, for people who are HIV/AIDS carriers. The funds provided by the specified fund are defined in the letter as donations (the correct and expedient translation of the word "donation" from the point of view of the context of this document) is free of charge; the purpose of the donation is to provide legal support to people with HIV/AIDS due to interruptions in the supply of drugs for antiretroviral therapy in Russia. The Foundation confirmed the implementation of funding as a donation by letter.

The Foundation, a non-profit organization, one of the purposes of which is to support non-profit non-governmental organizations in other countries, has donated funds to the association under agreements for use for a specific purpose - in order to provide legal protection to non-governmental organizations that have been the subject of persecution by the government, necessary to maintain the ability to continue its activities; providing the staff of Russian non-governmental organizations with the specialized knowledge necessary to maintain the ability to continue their activities in the face of government persecution.

The goals of providing funds by funds correspond to the goals and subject of the organization's activities and correspond to the concept of "generally useful goals" - they are focused on protecting the constitutional rights of citizens and aimed at achieving public benefits.

Spending funds for the conduct of statutory activities, confirmed by the organization's reports sent to funds (which had no claims to the intended use of funds), the organization's separate accounting of income (expenses) received within the framework of targeted income and income (expenses) from entrepreneurial activity, by the tax authority is confirmed.

Consequently, the funds received by the organization from funds for the purposes of taxation of profits are targeted receipts in the form of donations (the purposes of the donations received coincide with the statutory tasks of the association, other legally established conditions for their classification as targeted receipts are met - intended use, separate accounting and other requirements).

Funds provided by funds, which are donations, are not subject to accounting when calculating income tax based on the specified norm.

(According to the materials of the Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation of July 28, 2011 N 2902/11).

Federal Law No. 239-FZ of July 18, 2011 "On Amending Certain Legislative Acts of the Russian Federation in Connection with the Improvement of the Legal Status of Autonomous Institutions" amended subparagraph 14 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation, supplementing it with a new paragraph.

In accordance with the innovation, funds received by budgetary institutions in the form of limits on budgetary obligations (allocations) before July 1, 2012 are not subject to inclusion in taxable income.

In addition, Federal Law No. 235-FZ of July 18, 2011 "On Amendments to Part Two of the Tax Code of the Russian Federation with regard to Improving the Taxation of Non-Commercial Organizations and Charitable Activities" amended paragraph 6 of subparagraph 14 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation.

Due to these changes, the list of grants that are not taken into account for income tax purposes has been supplemented.

Thus, grants received for the implementation of specific programs in the field of science, physical culture and sports (with the exception of professional sports) do not increase the income taken into account for profit tax purposes.

In addition, the restriction was removed, according to which income received in the form of grants for the implementation of programs in the field of health protection was not previously taken into account for tax purposes. Previously, the list of areas was strictly specified, for example, AIDS, drug addiction, children's oncology, however, at present, all grants received for the implementation of programs in the field of health care, regardless of direction, are not included in taxable income.

Also, with the entry into force of the Federal Law of July 20, 2011 N 249-FZ "On Amendments to the Federal Law "On Science and State Scientific and Technical Policy" and Article 251 of Part Two of the Tax Code of the Russian Federation in terms of clarifying the legal status of funds to support scientific, scientific and technical and innovative activities" the legislator expanded the list of incomes that are not subject to inclusion in the tax base for corporate income tax within the framework of paragraph 14 of subparagraph 14 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation.

Thus, the restriction was lifted, according to which the income received from the funds named in the norm of paragraph 14 of subparagraph 14 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation (as amended before the entry into force of the Federal Law of 20.07.2011 N 249-FZ) funds .

At the moment, the legislator sets the criterion that determines the right to a tax benefit, exempting income from inclusion in the tax base for corporate income tax, the fact of financing a specific project or research by funds created in accordance with the requirements of the Federal Law of 08.23.1996 N 127-FZ " On Science and State Science and Technology Policy".

In addition, the aforementioned Law also expands the list of income that is not taken into account for the purposes of taxation of profits within the framework of the norms of paragraph 15 of subparagraph 14 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation, in accordance with the changes, funds received from funds registered in accordance with the procedure established by law are not taken into account for tax purposes , aimed at the formation of funds to support scientific, scientific and technical, innovative activities.

Attention!

The courts take the position that the savings of funds as a result of the release of a municipal unitary enterprise from payment for the use of property owned by municipalities, when interpreting subparagraph 26 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation, should be regarded as the receipt of these funds from the owner of the property of a unitary enterprise (paragraph 3 information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of December 22, 2005 N 98 "Review of the practice of resolving cases by arbitration courts related to the application of certain provisions of Chapter 25 of the Tax Code of the Russian Federation").

For example, in a situation where the tax authority assessed additional income tax, considering that the municipal unitary enterprise unreasonably did not take into account the fee for the use of non-residential premises owned by the municipality, from which the enterprise was exempted on the basis of a decision of the local government, as part of non-operating income.

The court, having recognized the existence of economic benefits as a result of the gratuitous use of municipal property, considered it not to be taken into account when determining the tax base for income tax on the basis of subparagraph 26 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation. By virtue of this norm, when determining the tax base, incomes in the form of funds and other property received by unitary enterprises from the owners of the property of these enterprises or their authorized bodies are not taken into account.

As the court pointed out, the release of a municipal unitary enterprise by the owner of its property from payment for the use of the premises entails the saving of funds by the enterprise. In the case under consideration, this can be equated to receiving them. The court concluded that in this case the provisions of subparagraph 26 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation apply.

According to the opinion of the Ministry of Finance of Russia, expressed in letter No. 03-03-06/4/50 dated July 28, 2008, funds, as well as the results of reconstruction and technical re-equipment, received by a federal state unitary enterprise from the owner of the property of this enterprise are not recognized as income of the federal state unitary enterprise for the purposes of taxation of profits of organizations.

In a letter dated May 23, 2008 N 03-03-06 / 4/33, the financial department came to the conclusion that, on the basis of subparagraph 26 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation, the funds received by organizations from the budget and recognized as funds for targeted financing and targeted revenues , are not taken into account. At the same time, as the Ministry of Finance of Russia indicated in the letter under consideration, income that does not meet the list of funds and the criteria for targeted financing (targeted receipts) used for the purposes of the Tax Code of the Russian Federation is taken into account for the purposes of taxing profits in the manner established by Ch. 25 of the Tax Code of the Russian Federation.

Thus, the cost of services received free of charge by a unitary enterprise from the owner of the property is not taken into account in the tax base for income tax on the basis of subparagraph 26 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation.

A unitary enterprise may receive funds or property from the owner of the enterprise, aimed at increasing the statutory fund. In this regard, the question arises of the need to charge depreciation in relation to fixed assets received from the owner or purchased with funds received from him.

As the Ministry of Finance of Russia explains in a letter dated November 20, 2008 N 03-03-06 / 4/83, funds for targeted financing (state investments) aimed at increasing the authorized capital are taken into account after the owner makes a decision to increase the authorized capital and registers changes in the constituent documents in accordance with the legislation of the Russian Federation. The financial department indicates that depreciable property, recognized as such in accordance with the provisions of Article 256 of the Tax Code of the Russian Federation, received by a unitary enterprise from the owner of the property of a unitary enterprise for operational management or economic management, is subject to depreciation from this unitary enterprise in the manner established by Ch. 25 of the Tax Code of the Russian Federation.

With regard to the property received by a unitary enterprise from the owner who created it, and fixed assets created at the expense of federal budget appropriations provided for by the targeted investment program for the reconstruction and technical re-equipment of facilities under the economic jurisdiction of federal state unitary enterprises, the Ministry of Finance of Russia set out a similar position in a letter dated 05/23/2008 N 03-03-06 / 4/35.

In a letter dated March 28, 2008 N 03-03-06 / 4/20, the Ministry of Finance of Russia explains that funds received by a unitary enterprise from the owner of property for the purchase of equipment are not taken into account when calculating income tax on the basis of subparagraph 26 of paragraph 1 of Art. 251 of the Tax Code of the Russian Federation. At the same time, the financial department reports that the indicated funds and property for the purposes of Ch. 25 of the Tax Code of the Russian Federation are not recognized as means of targeted financing or targeted revenues, an exhaustive list of which is given in subparagraphs 14 of paragraph 1 and paragraph 2 of Article 251 of the Tax Code of the Russian Federation.

In relation to the federal state unitary enterprise (hereinafter referred to as the FSUE) funds received under the federal target program for the creation of objects of state capital investments, the property rights to which after the completion of construction in accordance with the current legislation belong to the Russian Federation and which are reflected in the statutory fund of the FSUE on the right of economic management, the Ministry of Finance of Russia expresses itself in a letter of November 21, 2007 N 03-03-06 / 4/150. Thus, depreciation is charged on the specified objects for the purpose of calculating income tax.

As a result of the inventory, a unitary enterprise can identify property that is a separate inventory item. In this case, the enterprise has the right to make a decision to put this property on the balance sheet, valued at market prices. In this regard, the question arises as to whether the enterprise has the right to consider the identified property received free of charge from the owner and, accordingly, not to take into account its value in income when calculating corporate income tax.

As the Ministry of Finance of Russia indicated in a letter dated 06.06.2008 N 03-03-06 / 4/42, in the situation under consideration, depreciable property received by a unitary enterprise from the owner of the property of a unitary enterprise for operational management or economic management is subject to depreciation from this unitary enterprise in the manner established by Ch. 25 of the Tax Code of the Russian Federation. At the same time, the Ministry of Finance of Russia referred to paragraph 1 of Article 224 of the Civil Code of the Russian Federation, according to which the delivery of a thing to the acquirer is recognized as transfer, as well as the delivery to the carrier for sending to the acquirer or delivery to the communication organization for sending to the acquirer of things alienated without the obligation of delivery. In this case, the thing is considered handed over to the acquirer from the moment of its actual receipt into the possession of the acquirer or the person indicated by him.

As a rule, tariffs are set by the state for socially significant services provided to the population. At the same time, the rate is less than the price, which consists of the costs of providing a particular service, that is, the cost. As a result, a unitary enterprise that provides services to the population at tariffs set by the state receives a loss in the form of the difference between the cost of the service and the size of the tariff. The state compensates the enterprise for this difference in the form of a subvention.

Consequently, for a unitary enterprise, the question arises of the obligation to include in the composition of the income of this type of subvention from the budget.

The impossibility of not including these funds in the income of a unitary enterprise when calculating corporate income tax on the basis of subparagraph 26 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation was explained in the letter of the Ministry of Finance of Russia dated 04.03.2008 N 03-03-06/1/137.

In this letter, the financial department explains that the provisions of subparagraph 26 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation apply only if funds and other property are received by a unitary enterprise free of charge. In the event that funds or other property are transferred to a unitary enterprise as payment for goods, works and (or) services, these incomes are subject to inclusion in sales income.

If a unitary enterprise receives a subvention from the budget to compensate for losses incurred as a result of the provision of services at regulated tariffs, it must be taken into account that in this case the enterprise did not purchase any goods (works, services) for which it would need target budget funds, but on the contrary, it itself provided services. Therefore, the funds received by him from the budget in terms of their economic content represent a part of the proceeds for the services rendered. These funds are not subject to separate accounting, are not intended for spending on strictly defined purposes, but can be used by the recipient at their own discretion. The enterprise does not submit a report on the use of these funds.

Thus, the funds received by the organization from the budget to compensate for losses incurred in connection with the sale of services at regulated tariffs are taken into account when determining the tax base for income tax as part of income.

The Ministry of Finance of Russia also draws attention to the fact that this conclusion is confirmed by paragraph 1 of the Review of the practice of resolving cases by arbitration courts related to the application of certain provisions of Chapter 25 of the Tax Code of the Russian Federation (attachment to the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of December 22, 2005 N 98).

The courts in their decisions also conclude that payments received from the budget aimed at compensating for losses incurred as a result of the application of tariffs by enterprises are subject to inclusion in income when calculating corporate income tax, and subparagraph 26 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation in this case does not apply.

In particular, the Presidium of the Supreme Arbitration Court of the Russian Federation came to this conclusion.

The essence of the matter.

The municipal unitary enterprise (hereinafter referred to as the enterprise) applied to the arbitration court with an application to invalidate the decision of the tax authority, adopted on the basis of the results of an on-site tax audit of the enterprise, regarding the additional assessment of income tax, the calculation of the corresponding amounts of penalties and fines on the basis of paragraph 1 of Article 122 of the Tax Code of the Russian Federation.

The basis for additional accrual of the disputed amount of income tax was the conclusion of the tax authority on the unlawful non-inclusion in the composition of income of funds received by the enterprise from the budget in order to compensate for lost income as a result of the provision of passenger transportation services at tariffs approved by the decision of local governments. According to the tax authority, these amounts, as well as compensations received in connection with the transportation of preferential categories of passengers, should be included in income subject to income tax.

The position of the court.

An agreement was concluded between the enterprise and local governments for the implementation of passenger transportation by ground electric transport on regular city routes at tariffs approved by the decision of local governments.

According to the provisions of the agreement, lost income of the enterprise from the transportation of passengers on social travel documents is subject to compensation at the expense of funds allocated for these purposes from the federal, regional and local budgets in accordance with the legislation of the Russian Federation, regulatory legal acts of the constituent entity of the Russian Federation. Compensation to the enterprise for shortfalls in income, as well as losses as a result of the use of regulated tariffs from the city budget, is carried out on the basis of the reporting data of the enterprise.

The corresponding provision on determining the amount of compensation based on the enterprise's reporting data on income and expenses based on the results of the enterprise's activities is also enshrined in the provisions of the procedure for determining compensation for losses from the transportation of passengers on regular city routes and gardening bus routes (hereinafter referred to as the Procedure), approved by the city administration.

In pursuance of this provision, funds were allocated to the enterprise from the budget.

The specified amounts are reflected by the enterprise in accounting as "target financing" and are not included in the tax base subject to income tax by virtue of subparagraph 26 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation as funds received from the owner of this enterprise - a municipality.

The courts of appeal and cassation, canceling the decision of the court of first instance and satisfying the requirements of the enterprise, considered that the funds received do not relate to income received in connection with the provision of services for the transportation of citizens, and in terms of their economic content cannot be regarded as income from the provision of services , and therefore are not subject to accounting in the calculation of income tax.

According to the courts, the said funds were received by the enterprise from the owner of the enterprise's property to compensate for losses and do not relate to funds transferred in connection with the sale of services at regulated tariffs or in connection with the reimbursement of unreceived fees for services rendered to privileged categories of citizens. Consequently, the enterprise had the right to qualify the funds received from the owner on the basis of subparagraph 26 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation.

However, the courts of appeal and cassation did not take into account the following.

The position of the court. According to the provisions of Article 247 of the Tax Code of the Russian Federation, the object of taxation for corporate income tax is the profit received by the taxpayer.

Profit for the purposes of Chapter 25 of the Tax Code of the Russian Federation for Russian organizations is the income received, reduced by the amount of expenses incurred, which are determined in accordance with Chapter 25 of the Tax Code of the Russian Federation.

Paragraph 1 of Article 248 of the Tax Code of the Russian Federation establishes that income for the purposes of Chapter 25 of the Tax Code of the Russian Federation includes income from the sale of goods (works, services) and property rights, as well as non-operating income.

1. When determining the tax base, the following incomes are not taken into account: 1) in the form of property, property rights, works or services received from other persons in the order of advance payment for goods (works, services) by taxpayers who determine income and expenses on an accrual basis; 2) in the form of property, property rights received in the form of a pledge or deposit as security for obligations; 3) in the form of property, property rights or non-property rights having a monetary value, which are received in the form of contributions (contributions) to the authorized (share) capital (fund) of the organization (including income in the form of an excess of the placement price of shares (stakes) over their nominal value (initial amount); 3.1) in the form of amounts of value added tax subject to tax deduction from the receiving organization in accordance with Chapter 21 of this Code when transferring property, intangible assets and property rights as a contribution to the authorized (share) capital of business companies and partnerships or share contributions to share funds of cooperatives; 3.2) in the form of a property contribution of the Russian Federation, a property contribution of the Central Bank of the Russian Federation to the property of a state corporation, state company or fund established by the Russian Federation on the basis of a federal law, in which the formation of an authorized capital is not provided; 3.3) does not apply from January 1, 2014; 3.4) in the form of property, property rights or non-property rights in the amount of their monetary value, which are transferred to a business company or partnership in order to increase net assets, including through the formation of additional capital and (or) funds, by the relevant shareholders or participants. This rule also applies to cases of an increase in the net assets of a business company or partnership with a simultaneous decrease or termination of the obligations of a business company or partnership to the relevant shareholders or participants, if such an increase in net assets occurs in accordance with the provisions provided for by the legislation of the Russian Federation or the provisions of the constituent documents of the business company or partnership, or was the result of the will of a shareholder or participant in a business company, partnership, and in cases of recovery in the retained earnings of a business company or partnership unclaimed by shareholders or participants in a business company, partnership, dividends or part of the distributed profit of a business company or partnership; 4) in the form of property, property rights that are received within the limits of the contribution (contribution) by a member of a business company or partnership (his successor or heir), with a decrease in the authorized capital in accordance with the legislation of the Russian Federation, upon exit (withdrawal) from a business company or partnership or when distributing the property of a liquidated economic company or partnership between its participants; 5) in the form of property, property rights and (or) non-property rights having a monetary value, which are received within the limits of the contribution by a participant in a simple partnership agreement (agreement on joint activity) or his successor in case of separation of his share from the property that is in common ownership of the participants agreement, or division of such property; 6) in the form of funds and other property received in the form of gratuitous assistance (assistance) in the manner prescribed by the Federal Law "On gratuitous assistance (assistance) of the Russian Federation and the introduction of amendments and additions to certain legislative acts of the Russian Federation on taxes and on the establishment of benefits on payments to state non-budgetary funds in connection with the implementation of gratuitous assistance (assistance) of the Russian Federation"; 7) in the form of fixed assets and intangible assets received free of charge in accordance with international treaties of the Russian Federation, as well as in accordance with the legislation of the Russian Federation by nuclear power plants to improve their safety, used for production purposes; 8) in the form of property received by state and municipal institutions by decision of executive authorities at all levels; 9) in the form of property (including cash) received by the commission agent, agent and (or) another attorney in connection with the performance of obligations under a commission agreement, agency agreement or other similar agreement, as well as to reimburse expenses incurred by the commission agent, agent and ( or) by another attorney for the committent, principal and (or) other principal, if such costs are not subject to inclusion in the expenses of the commission agent, agent and (or) other attorney in accordance with the terms of the agreements concluded. The specified income does not include commission, agency or other similar remuneration; 10) in the form of funds or other property received under credit or loan agreements

Legal advice under Art. 251 Tax Code of the Russian Federation

Ludmila Markova

Alexey Babkin

Please tell me, with the STS of 6%, the amount of 1 million 100 thousand was transferred (Provision of intermediary services) .. (Provision of intermediary services). Do I need to pay tax on the entire amount, or is it possible to pay only on income ... Thank you very much!

• Lawyer's response:

  Tyk 1.1 million is your income. What do you want to reduce? Or is 1.1 million the cost of the transaction, which includes the cost of goods (services) provided by a third party to your committent, and your commission for intermediary services? According to paragraph 1 of Article 346.15 of the Code, when determining the object of taxation, income from the sale of goods (works, services), property and property rights, determined in accordance with Article 249, as well as non-operating income, determined in accordance with Article 250 of the Tax Code of the Russian Federation, are taken into account. At the same time, incomes listed in Article 251 of the Tax Code of the Russian Federation are not taken into account under the simplified tax system. Article 251 of the Code contains a rule directly related to the participants in mediation agreements. Subparagraph 9 of paragraph 1 of the same article provides that when determining the tax base, income in the form of property received by the commission agent in connection with the execution of the commission agreement is not taken into account. That is, the property (including money) received from the committent or the buyer (seller) for the committent is not income from the “simplistic” commission agent and is not subject to a single tax. The income of the commission agent is only the commission. The funds received from the committent to reimburse the expenses of the commission agent are also not considered income. Thus, in the case of concluding a commission agreement, only your commission is put into income, and not the entire amount of funds received.

Daria Bogdanova

how to correctly respond to a tax notice - help me write a letter. Documented, I proved everything to them and stayed. how to correctly and competently respond to a tax notice - help me write a letter. If you have please send to me.

• Lawyer's response:

  according to the standard. from whom the letter came, in the name of that and write. In the right left corner, the name of the body (Information Tax Service of the city ...), the position of the person to whom you are addressing, his last name, initials, then yourself "from IP full name, TIN, address, phone number" then STATEMENT or simply write the essence of the letter in text. You send the letter by registered letter or bring it to the tax secretary, on your copy they make a mark on its receipt (signature date), the second copy is taken away. And the text can be started like this. 06/20/11 notification No. 25g was received, according to which the IFTS imposes on me the obligation to pay a fine in the amount of 20,000 due to late payment. I declare with this letter that this fine was issued in violation of the rights of individual entrepreneurs, because, in accordance with Article 251 of the Tax Code, the payment was made without violating the deadlines specified by law. I ask you to remove from me the obligation to pay the fine, otherwise the disagreements will be resolved in court. date signature

Stepan Libkin

USN income. LLC on USN is new. The founder deposited money into a current account for the purchase of goods. They issued it as an interest-free loan. There are no sales. The amount of money contributed is income

• Lawyer's response:

  In accordance with paragraph 1 of Art. 346.15 of the Tax Code of the Russian Federation, when determining the object of taxation, incomes provided for by Article 251 of the Tax Code of the Russian Federation are not taken into account. Thus, income in the form of funds or other property received under credit or loan agreements is not taken into account when determining the tax base (clause 10 clause 1 article 251 of the Tax Code of the Russian Federation).

Vladimir Timoshenko

It is necessary to pay an invoice for a large amount, can it be issued free of charge by contributions in equal shares from the founders (5 people)?

• Lawyer's response:

  Paragraph 3 of subparagraph 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation establishes that when determining the tax base, income in the form of property received by a Russian organization free of charge from an individual is not taken into account if the authorized capital of the receiving party consists of more than 50 percent of the contribution (share) this individual. Otherwise, this gratuitous contribution will be non-operating income and is subject to income tax. If you have at least one founder who has more than 50% of the share in the UK, then it is better to issue this contribution from him.

Vera Guseva

taxation issue. In our house, apartment owners pay for hot water and heat directly to SibEco through the city system. Our Homeowners' association is on simplification. Are the amounts they pay directly to SibEco our income? At the seminar of accountants I was told that yes. But after all, these funds do not come to us either to the account or to the cashier. And on simplified terms, after all, income on a cash basis.

• Lawyer's response:

  , "At the same time, if, in accordance with the Charter approved by the general meeting of members of the HOA, the HOA is responsible for ensuring the proper sanitary, fire-fighting and technical condition of the residential building and the adjacent territory; technical inventory of the residential building; provision of public services; maintenance and repair of residential and non-residential premises; overhaul of a residential building, and the HOA, on its own behalf, concludes contracts with manufacturers (suppliers) of these services (works), while acting on behalf of and at the expense of members of the HOA (that is, based on contractual obligations, an intermediary purchasing, on behalf of members of the HOA, utilities, services to ensure the sanitary, fire and technical condition of the house and the local area; services for the technical inventory of a residential building; services for the maintenance and repair of residential and non-residential premises; services for the overhaul of a residential building), then taxation of income tax on funds received on the account and the HOA from this intermediary activity is carried out in the manner prescribed by subparagraph 9 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation, i.e., only in part of the intermediary, agency or other similar remuneration of the HOA for its intermediary, agency or other similar services. "Director of the Department of Tax and Customs Tariff Policy of the Ministry of Finance of the Russian Federation" M. A. Motorin This is a quote from the Letter of the Ministry of Finance No. 03-03-05 / 805.05.2006 "On the income of homeowners associations" - read the full text of the letter and study the charter of the HOA, the text of contracts with energy supply organizations, and only then can we conclude whether these payments will be considered income, or only in part of the agency fee.

Stepan Sementsov

If you donate part of your profits to charity, do you pay taxes? Tell me how things are now on this issue. Specifically, I am interested in: If a commercial organization gives part of its profits to charity (be it orphanages, helping sick children, etc.), do they pay taxes (Those 13%?)

• Lawyer's response:

  If a commercial organization gives part of its profits to charity (be it orphanages, helping sick children, etc.), then these expenses do not reduce the income tax base, since: according to paragraph 16 and paragraph 34 of Article 270 TC are not included in the tax base for income tax expenses: - in the form of the value of property transferred free of charge (works, services, property rights) and expenses associated with such transfer; - in the form of amounts of targeted deductions made by the taxpayer for the purposes specified in paragraph 2 of Article 251 of the Tax Code, including funds and other property received for charitable activities. If the philanthropist is an individual: Individuals can also be involved in charity. This activity will be reflected in the determination of the tax base for personal income tax (PIT). personal income tax. In accordance with paragraphs. When determining the size of the tax base in accordance with paragraph 2 of Article 210 of the Tax Code, the taxpayer has the right to receive a social tax deduction in the amount of income transferred by the taxpayer for charitable purposes in the form of financial assistance to organizations of science, culture, education, healthcare and social security, partially or fully financed from the relevant budgets, as well as physical culture and sports organizations, educational and preschool institutions for the needs of physical education of citizens and the maintenance of sports teams, as well as in the amount of donations transferred (paid) by the taxpayer to religious organizations for their implementation statutory activities. Based on the foregoing, only charitable expenses that are made by individuals in favor of organizations are accepted for deduction - expenses in the form of charitable assistance in favor of an individual are not accepted for deduction. The deduction is presented: - in the amount of actually incurred expenses, but not more than 25% of the amount of income received in the tax period; - on the basis of a written application of the taxpayer when submitting a tax return to the tax authority by the taxpayer at the end of the tax period.

Galina Sergeeva

The teachers provided financial assistance to their firm without any assistance, what kind of postings? The LLC has 2 founders in equal shares. They also provided in equal shares free of charge. finance. assistance to their company (they put money on the account of the company), because there was not enough money for payments and taxes. How to mirror this. accounting (wiring)

• Lawyer's response:

  Another opportunity for the founder to help his company is to provide the property necessary for the company free of charge. According to Article 575 of the Civil Code of the Russian Federation, in relations between commercial organizations, donation transactions in the amount of more than 500 rubles are prohibited. Therefore, an organization can receive fixed assets free of charge only from non-profit organizations, state and municipal bodies, as well as from individuals. Thus, the founders-citizens have the full right to transfer (that is, donate) to their company any property belonging to them free of charge. In this case, you can also use the benefit specified in subparagraph 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation. Recall that it allows not to include the value of property received free of charge in non-operating income for tax purposes, if the founder's share in the authorized capital of the company exceeds 50%. However, there are even more subtleties and complexities in such a business transaction than when providing a loan by the founder. On many points, taxpayers and tax authorities disagree, and it is already in court to figure out who is right and who is wrong. See here:

Galina Kozlova

What punishment threatens for violation of the law 409-FZ of December 28, 2010 for the payment of dividends over 60 days?

• Lawyer's response:

  Federal Law N 409-FZ does not explain the issue of applying liability measures to a business entity (for example, in the form of interest in accordance with Article 395 of the Civil Code of the Russian Federation) that has not made such a payment. However, in judicial practice, there is an opinion that a joint-stock company is not responsible for the untimely transfer of funds to a shareholder if he did not update his data in the register of shareholders (see, for example, Decree of the Federal Antimonopoly Service of the Moscow District dated November 7, 2008 N KG-A40 / 8013 -08 in case N A40-48020/07-62-447). Though,…. perhaps even a punishment with the ruble. Read paragraph 3.4. article 251 of the Tax Code of the Russian Federation. If you are a lawyer, then ask your accountant and financier. Upon the expiration of the period for filing a claim for the payment of dividends, dividends declared and not claimed by the shareholder are restored as part of the undistributed profit of the joint-stock company (paragraph 3, paragraph 5. A similar rule is established for the unclaimed part of the distributed profit of a limited liability company (paragraph 3, paragraph 4) 28 of the Law on Limited Liability Companies) Declared dividends and parts of distributed profits restored as part of retained earnings of a business entity should not be included in the tax base for corporate income tax (clause 3.4 clause 1 article 251 of the Tax Code of the Russian Federation ) These funds can be used by the business entity at its discretion Income that is not included in the taxable base in this particular tax or income tax reporting period may change Consequence - understated income tax base - understated income tax with all consequences and sanctions, c. h. and possible understatement of advance payments. Federal Law N 409-FZ establishes a ban on reducing the authorized capital of a joint-stock company until the expiration of the dividend payment period, as well as during the period provided for filing a claim for payment if such funds have not been paid in full (paragraph 6, paragraph 4 article 29 and paragraph 5 article 42 of the Law on Joint Stock Companies) . A ban on reducing the authorized capital of a limited liability company in the presence of an unpaid part of the distributed profit has not been established. I found good explanations. Read. These are analytical reviews from the legal system "Consultant - plus". Here is the address http://www.consultant.ru/online/base/?req=doc;base=LAW;n=57182 It seems to me that both an accountant and a lawyer should work with this innovation together.

Nadezhda Borisova

What is the difference between the object of taxation and the taxable base?

• Determination of the tax base In order to choose the right object of taxation, it is necessary to have an idea of ​​how the single tax is calculated for different tax bases. Consider the option in which the object of taxation are ...

Vladislav Golikov

what is not included in the tax base

• When working on the simplified tax system, the taxable base does not include: income listed in article 251 of the Tax Code of the Russian Federation (loans, credits, funds received as collateral, etc.); difference in amounts under contracts concluded in conventional units (paragraph 3 of article ...

Yakov Nazaryev

Is income tax levied on non-operating income?

• Lawyer's response:

  There is a special section in the income tax return: non-operating income. They are also subject to taxation. In Article 251 of the Tax Code of the Russian Federation (part two) are listed for income tax.

Valentin Sennik

Article 251 of the Tax Code, clause 11. “When determining the tax base, the following income is not taken into account: ... 11) in the form of property received by a Russian organization free of charge: ... from an individual, if the authorized (share) capital (fund) of the receiving party is more than 50 percent consists of the contribution (share) of this individual. At the same time, the received property is not recognized as income for taxation purposes if, within one year from the date of its receipt, the specified property (except for cash) is not transferred to third parties "You can Is it possible to sum up the following situation under this paragraph: a contribution to the current account of the company of money from a single founder (individual / person), on the same day the money went to pay for the management company of another CJSC (the founder, it turns out, is already a company)

• Lawyer's response:

  Yes, in accordance with paragraph 11 of Article 251, the funds received from the founder are gratuitously received funds, that is, they are not returned back to the founder and therefore cannot be a loan. These amounts are reflected in accounting as non-operating income, and in tax accounting as income not taken into account when determining the tax base: Dt 51 Kt 75 - the founder's contribution was received to the current account. Dt 75 Kt 91/1 - gratuitous income is reflected. Dt 58 kt 51 - made a contribution to the Criminal Code of a subsidiary.

Ivan Krivonos

How to issue a receipt from the OS founder? The company opened not too long ago. We work for USN. There is an old computer, some furniture. table, rack, printer, fax. I think that these OS should be issued as a gratuitous receipt from the founder. The question is how to do it simply and not expensively.

• Lawyer's response:

  It is necessary to capitalize unambiguously in order to then write off repairs and consumables on them. If the property is transferred by a founder having more than 50% of the authorized capital of the receiving party, or by an established organization owned by the receiving party by more than 50%. In accordance with subparagraph 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation in this case, property received free of charge is not recognized as income. But the condition must be met - the object must be in operation for at least one year. The cost of an object received free of charge is not recognized as income for income tax purposes if the share of the authorized capital of the receiving party is 51% or more owned by the transferring party (or the receiving party owns 51% or more of the authorized capital of the transferring party). If this condition is not met, then in accordance with paragraph 8 of Article 250 of the Tax Code of the Russian Federation, the value of the object is recognized as taxable income. EXAMPLE 1 The object of fixed assets owned by Lastochka LLC belongs to the 4th depreciation group. The useful life is 5 years. The object, by decision of the founders, is transferred to a subsidiary of Vorobey LLC, 100% of the authorized capital of which belongs to Lastochka LLC. The market value of the object is determined in the amount of 600,000 rubles. The primary documents confirming the receipt of the object are the decision of the founder, the Act on the acceptance and transfer of the fixed asset object in the form No. OS-1. In the accounting registers, the receipt of an object of fixed assets is documented by the following entries: debit of account 08 "Investments in non-current assets" subaccount 4 "Acquisition of fixed assets" credit of account 98 Deferred income "subaccount 2" Gratuitous receipts "- 600,000 rubles - reflected gratuitous receipt from the founder of an object of fixed assets; rubles (600,000 rubles: 5 years: 12 months)... Starting from the month following the month of commissioning of the fixed asset, both in the accounting registers and for the purposes of taxation of profits, depreciation begins to accrue on this property (paragraph 21 PBU 6/01, paragraph 1 of Article 259 of the Tax Code of the Russian Federation)... The calculation of depreciation in accounting registers should be monthly to be drawn up on a monthly basis with the following entries: debit of accounts 20 "Main production", (23 "Auxiliary production", 25 "General production expenses", 26 "General expenses", 44 "Sale expenses) credit of account 02 "Depreciation of fixed assets" - 10,000 rubles . - accrued depreciation on the object; debit of account 98 "Deferred income" subaccount 2 "Grant-free receipts" credit of account 91 "Other income and expenses" subaccount 1 "Other income" - 10,000 rubles. - reflects the amount of income from the use of an object received free of charge. tanyusha0909 is offline Reply with quote

Daniil Umov

Is there a horticulture accounting program, which program is easier to keep track of finances in horticulture?

• Lawyer's response:

  SNT is a horticultural non-profit partnership. It is best to use the USNO, accounting is kept in the "book of accounting for income and expenses." Ministry of Finance of the Russian Federation Letter No. 03-11-06/2/13529.09.2011 Question: In accordance with Art. 1 of the Federal Law of 15.04.1998 N 66-FZ "On horticultural and dacha non-profit associations of citizens" a horticultural or dacha non-profit association of citizens is a non-profit organization established by citizens on a voluntary basis to assist its members in solving common social and economic problems of gardening, gardening and country farming. In accordance with paragraph 1 of Article 4 of the said Federal Law of April 15, 1998 N 66-FZ, citizens, in order to exercise their rights to receive garden, garden or summer cottage land plots, to own, use and dispose of these land plots, as well as in order to meet the needs, related to the exercise of such rights, may create horticultural, horticultural or dacha non-profit partnerships, horticultural, horticultural or dacha consumer cooperatives or horticultural, horticultural or dacha non-profit partnerships. Our non-profit association of citizens was created in the form of a dacha non-profit partnership. In accordance with the Charter of our dacha non-commercial partnership, the following types of contributions from members of the Partnership are established as sources of property formation: - entrance fees, - membership fees, - targeted contributions. Please clarify: will the contributions listed above be taken into account when determining the tax base for tax paid in connection with the application of the simplified taxation system? Answer: The Department of Tax and Customs Tariff Policy considered the letter dated September 9, 2011 N 14 on the application of the simplified taxation system by the dacha non-profit partnership and, based on the information contained in the letter, reports the following. In accordance with paragraph 1 of Article 346.15 of the Tax Code of the Russian Federation (hereinafter referred to as the Code), taxpayers applying the simplified taxation system take into account income from sales and non-operating income determined in accordance with Articles 249 and 250 of Chapter 25 "Corporate Income Tax" as income of the Code and do not take into account the income provided for by Article 251 of the Code. According to paragraph 2 of Article 251 of the Code, when determining the tax base, earmarked receipts (with the exception of earmarked receipts in the form of excisable goods) are not taken into account. These include targeted revenues for the maintenance of non-profit organizations and the conduct of their statutory activities, received free of charge on the basis of decisions of state authorities and local governments and decisions of management bodies of state non-budgetary funds, as well as targeted revenues from other organizations and (or) individuals and used intended recipients. At the same time, taxpayers - recipients of the specified targeted revenues are required to keep separate records of income (expenses) received (incurred) within the framework of targeted revenues. In accordance with subparagraph 1 of the above paragraph of Article 251 of the Code, targeted revenues for the maintenance of non-profit organizations and the conduct of their statutory activities include contributions made in accordance with the legislation of the Russian Federation on non-profit organizations by founders (participants, members) donations recognized as such in accordance with the civil legislation of the Russian Federation. Federation, income in the form of works (services) received free of charge by non-profit organizations, performed (rendered) on the basis of relevant agreements, as well as deductions for the formation

Oksana Yakovaleva

Please help me with tax issues. Is it taxed on the organization’s profits .... Is the property received free of charge by the Griffin company: 800,000 rubles and 600,000 rubles from the Sphinx and Oasis companies for the implementation of household activities, if Oasis is a foreign organization that does not have its representative office in the territory of the Russian Federation, owns 40% of the shares of the company Griffin Sphinx - a Russian organization, owns 60% of the shares of the company Griffin

• Lawyer's response:

  Tax Code para. 11 paragraph 1 of article 251. Income not taken into account when determining the tax base 1. When determining the tax base, the following income is not taken into account: more than 50 percent of the parties consists 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 percent of the contribution (share) of the receiving organization;

Oksana Pugacheva

Can one commercial organization donate another computer? normative act and an excerpt from it.

• Lawyer's response:

  CIVIL CODE OF THE RUSSIAN FEDERATION Article 575. Prohibition of gifts 1. Gifts are not allowed, except for ordinary gifts, the value of which does not exceed three thousand rubles: 4) in relations between commercial organizations. TAX CODE OF THE RUSSIAN FEDERATION Article 251. Income not taken into account when determining the tax base more than 50 percent of the parties consists 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 percent 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 percent of the contribution (share) of this individual. At the same time, the received property is not recognized as income for tax purposes only if, within one year from the date of its receipt, the said property (except for monetary funds) is not transferred to third parties;

Ivan Karachenko

What USN to choose for a travel agency? Payments in cash and to my account from a credit institution .. I understand that 6% of income is better, but is it possible in this situation to prove that not all the money that comes to my account is mine. Most of it is owned by tour operators

• Lawyer's response:

  on tour. agencies, the tax is paid ONLY from the agency fee, that is, from the difference between the purchase price of the tour and the selling price, the agency fee transfers the tour to you. operator, from this amount you pay 6%, but you can also take a commission fee from buyers yourself, tax is also paid on this amount. It is better to choose the USN 6% though. . "In accordance with Articles 156 and subparagraph 9 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation, the funds received by the agent in the course of the execution of the agency agreement are not included in the tax base for VAT and income tax. The company's revenue will be only the agency fee, including the amount of value added tax the cost for which the agent should issue an invoice and register it in the sales book." All the same applies to the simplified tax system, only without VAT on the basis of Art. 346.15, paragraph 1 of the Tax Code of the Russian Federation. The contract is the basis for determining the agency fee, this is the first document that you need to pay attention to.

Galina Sukhanova

which does not apply to non-operating income

• What is non-operating income? Everything that is not income from sales, namely: income (dividends) from equity participation in other organizations; fines and penalties payable by court order for violation by counterparties ...

Sergei Silkin

Help find on the Internet clarifications on the issue: Should the HOA pay income tax on utility bills?

• "..On the question of the need to tax mandatory payments and contributions of members of the HOA with income tax, the Ministry of Finance and the Federal Tax Service of Russia agree that the tax should be paid. The position of the Ministry of Finance on this issue can be judged from letters, for example, dated 03 ...

Elizabeth Romanova

income tax. Please tell me the procedure for determining the tax base for income tax

• Lawyer's response:

  The income tax is levied on the following income: - income from the sale of goods (works, services) and property rights; - non-operating income. Such a classification of income is provided for in paragraph 1 of Article 248 of the Tax Code of the Russian Federation. When determining income, exclude from it the amounts of taxes presented to the buyer of goods (works, services) (clause 1, article 248 of the Tax Code of the Russian Federation). They are included in expenses that are not taken into account when taxing profits (clause 19, article 270 of the Tax Code of the Russian Federation). Such taxes include VAT (Article 168 of the Tax Code of the Russian Federation) and excise tax (Article 198 of the Tax Code of the Russian Federation). Income from sales, from which it is necessary to pay income tax, includes proceeds from the sale of: - products (works, services) of own production; - previously acquired goods (including land plots, depreciable property, materials, etc.); - property rights. This is stated in paragraph 1 of Article 249 of the Tax Code of the Russian Federation. Non-operating income includes all other receipts that are not sales income. In particular, these are: - income from equity participation in other organizations (dividends); - income from the purchase and sale of foreign currency; - gratuitously received property (works, services) or property rights, except for the cases specified in Article 251 of the Tax Code of the Russian Federation; – fines and penalties for violation by counterparties of the terms of contracts, as well as the amount of compensation for loss or damage; - income in the form of interest on loans and credits granted; - income received under a simple partnership agreement; - income of previous years, which are revealed in the current year; - the cost of materials and spare parts that are obtained during the dismantling or liquidation of buildings, equipment and other property of the organization; - amount and exchange rate differences. A complete list of non-operating income is given in article 250 of the Tax Code of the Russian Federation. He is open. When calculating income tax, the amount of income received can be reduced by the amount of expenses incurred (Article 247 of the Tax Code of the Russian Federation). All expenses of the organization recognized in the tax base must simultaneously be: - economically justified; - documented; - associated with activities aimed at generating income. If at least one of the conditions is not met, the expense is not recognized for tax purposes. This procedure is provided for in paragraph 1. All expenses that reduce the tax base for income tax are divided into two groups: - expenses related to production and sales; - non-operating expenses. This is provided for by paragraph 2 of Article 252 of the Tax Code of the Russian Federation. Expenses that reduce taxable income must be: - economically justified; - documented; - associated with activities aimed at generating income. Such rules are established by paragraph 1 of Article 252 of the Tax Code of the Russian Federation. After you determine the taxable base, you can calculate the tax itself, but of course you need to pay attention to expenses that are not included in the taxable base, namely: payments of material assistance, bonuses that are paid from profits, environmental fees in excess of the norms , payment of daily allowances in excess of the norms (700 rubles) and others that are not included in the base. If you apply PBU 18/2, then you need to calculate tax liabilities and tax assets.

Valeria Petrova

Where should the property contributed as authorized capital be located? Place of registration?

• At the time of registration - anywhere, the main thing is that the documents for the introduction of this property into the authorized capital are drawn up correctly, especially taking into account Article 251 of the Tax Code of the Russian Federation

Marina Anisimova

Podskajite cases of exclusion of income from commercial transactions. banks from the taxable income tax?

• Lawyer's response:

  for example, paragraph 10 of Article 251 of the Tax Code of the Russian Federation: "income in the form of funds or other property received under credit or loan agreements (other similar funds or other property, regardless of the form of borrowing, including securities on debt obligations), as well as funds or other property received as repayment of such borrowings" or paragraph 3 of Article 290 of the Tax Code of the Russian Federation "The bank's income does not include the amount of a positive revaluation of funds in foreign currency received as payment for the authorized capital of banks, as well as insurance payments received under insurance contracts in case death or disability of the borrower of the bank, insurance payments received under property insurance contracts that are security for the borrower's obligations (collateral), within the amount of the borrower's outstanding debt on borrowed (credit) funds, accrued interest and penalties recognized by the court, penalties, repayable (forgivable ) by the bank at the expense of the specified insurance payments t. " incomes in the form of restoration of expenses that did not reduce the base are not yet included in the base

Galina Egorova

please help me figure it out .... advances from which we pay VAT are included in the tax base for profits?

• Lawyer's response:

  according to subparagraph 1 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation, advances to organizations using the accrual method are not included in the tax base. If the accrual method is fixed in the accounting policy of the company, then there is no need to pay income tax on advances received by it on account of the upcoming delivery of goods. If it determines income and expenses on a cash basis, then the amounts received in advance are taxed. At the same time, the value of the goods for which an advance payment was received reduces the taxable profit after it is shipped to the buyer.

Zinaida Ryabova

Maybe I'm stupid as shit - I do not argue. But explain. If priests are allowed to sell candles, etc., then why are they taxed +

• Maybe they take it? If I were the president, I would abolish trade for the Church. Everything in it should be free, in theory. Faith is important, but you shouldn't rip off money)) Because if you take a tax on the sale of candles, then the church will have to pay from the budget...

Anastasia Gromova

Let's say I open a home church in my garden and put up a donation box. Am I required to report to

• Consult with the leader of the nearest sect. He will tell you in detail how it will be. Go broke on bribes to firefighters.

Sergei Shalgachev

organization loan. Organization on the simplified tax system taking a loan from a bank for a year. D66.1 K51 - receipt of funds (credit) to the current account. (income not accepted for NU) And how to take into account interest??? by a manual operation, we make the entry D91.3 (other expenses not charged to the NU) K66.3 (accepted to the NU) or 66.2 (not accepted to the NU) - interest is accrued; D 66.3(2) K51 - payment of interest. Credit and interest are accepted to NU or not with the simplified taxation system ??

• Lawyer's response:

  For the purpose of calculating a single tax, borrowed funds received by a borrower under a loan agreement are not included in income on the basis of paragraph 1 of Article 346.15 and subparagraph 10 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation. As for interest: According to paragraphs. 9 p. 1 art. 346.16 of the Tax Code of the Russian Federation, when determining the object of taxation, the income received is reduced by interest paid for the provision of funds (credits, loans) for use. In accordance with paragraph 2 of Art. 346.16 of the Tax Code of the Russian Federation, the amount of interest by which income is reduced is calculated in the manner prescribed in Art. 269 ​​of the Tax Code of the Russian Federation for the calculation of corporate income tax. This article states that interest accrued on any type of debt obligation is recognized as an expense, provided that the maximum amount of accrued interest recognized as an expense is equal to the refinancing rate of the Central Bank of the Russian Federation, increased by 1.1 times. Thus, you should: 1. Compare the interest rate at which you accrued interest for each accrual period with the refinancing rate of the Central Bank of the Russian Federation, which was in force in this period and increased by 1.1 times. 2. If your interest rate is lower than the rate of the Central Bank of the Russian Federation, multiplied by 1.1, then the entire amount of interest accrued by you can be taken into account as expenses. 3. If your interest rate is higher than the refinancing rate of the Central Bank of the Russian Federation, multiplied by 1.1, then only the amount of interest calculated at the rate of the Central Bank of the Russian Federation increased by 1.1 can be included in the expenses. Expenses, including payment of interest for the use of borrowed funds, are taken into account as expenses when calculating the tax base at the time of repayment of the debt - paragraphs. 1 p. 2 art. 346.17 of the Tax Code of the Russian Federation, Article 346.15 of the Tax Code of the Russian Federation (hereinafter - the Tax Code of the Russian Federation), taxpayers applying the simplified taxation system (hereinafter - USN), when determining the object of taxation, take into account sales income, determined in accordance with Article 249 of the Tax Code of the Russian Federation, and non-operating income, determined in accordance with article 250 of the Tax Code of the Russian Federation. At the same time, article 250 of the Tax Code of the Russian Federation provides that non-operating income is income not specified in article 249 of the Tax Code of the Russian Federation. When determining the object of taxation, the income listed in Article 251 of the Tax Code of the Russian Federation is not taken into account. This is established by subparagraph 1 of paragraph 1.1 of Article 346.15 of the Tax Code of the Russian Federation. The list of such incomes is exhaustive. Incomes in the form of targeted revenues and financing are specified in Article 251 of the Tax Code of the Russian Federation in two cases. In subparagraph 14 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation, income in the form of property received by the taxpayer for targeted financing is named. At the same time, the list of types of property received, which can be attributed to the means of targeted financing, is exhaustive. Free financial assistance for the organization of entrepreneurial activities, provided from the budget to reduce unemployment, does not apply to them. In accordance with paragraph 2 of Article 251 of the Tax Code of the Russian Federation, when determining the object of taxation, targeted revenues from the budget are not taken into account. The specified financial assistance does not satisfy one of the prerequisites for recognizing it as targeted revenues from the budget, namely, it cannot be received by an individual entrepreneur directly from the budget, therefore, it also does not apply to targeted revenues from the budget, referred to in paragraph 2 of Article 251 of the Tax Code of the Russian Federation. Based on the foregoing, an individual entrepreneur who applies the simplified tax system must, when determining the object of taxation, take into account, as part of non-operating income, gratuitous financial assistance received for organizing entrepreneurial activities. 2. The procedure for applying the provisions of Article 217 of the Tax Code of the Russian Federation was clarified by the Ministry of Finance of Russia in a letter of 04.06.2009 N 03-04-07-01 / 190 (sent by letter of the Federal Tax Service of Russia of 18.06.2009 N ShS-17-3 / [email protected]). According to the above clarifications, it does not contain provisions directly providing for exemption from personal income tax of financial assistance to unemployed citizens for organizing their own business or for self-employment. Thus, if the taxpayer applies the general tax regime, budgetary funds in the form of financial assistance provided to unemployed citizens for organizing self-employment are subject to personal income taxation in accordance with the generally established procedure. In this regard, the Federal Tax Service asks to bring to the attention of local administrations, legislative assemblies, as well as employment centers that financial assistance provided to unemployed citizens for organizing their entrepreneurial activities is subject to tax paid when applying the simplified tax system or personal income tax. Acting State Councilor of the Russian Federation, 2nd class S. N. SHULGIN

  Article 346.14. of the Tax Code of the Russian Federation, when applying the simplified system, the object of taxation is: income; income reduced by the amount of expenses. Taxpayers who are parties to a simple partnership agreement (agreement on joint activity) or an agreement on trust management of property apply as an object of taxation income reduced by the amount expenses. (Clause 3 of Article 346.14.) In accordance with clause 1.1 of Article 246.15 of the Tax Code of the Russian Federation, when determining the object of taxation, income specified in Article 251 of the Tax Code of the Russian Federation is not taken into account, including: in the form of property (including cash) received by the commission agent , agent and (or) other attorney in connection with the fulfillment of obligations under a commission agreement, agency agreement or other similar agreement, as well as for reimbursement of expenses incurred by the commission agent, agent and (or) other attorney for the committent, principal and (or) other principal, if such costs are not subject to inclusion in the costs of the commission agent, agent and (or) other attorney in accordance with the terms of the concluded agreements (subparagraph 9, paragraph 1 of Article 251 of the Tax Code of the Russian Federation). Commission, agency or other similar remuneration received under such agreements is included in income. Thus, an individual entrepreneur who is a trustee includes in his income only the amount of remuneration received by him and does not include amounts received under a trust management agreement in the interests of the founder of the management.

  Art. 265 of the Tax Code of the Russian Federation as part of non-operating expenses, taking into account the peculiarities of attributing interest on debt obligations to expenses under Art. 269 ​​of the Tax Code of the Russian Federation. In particular, par. 4 p. 1 art. 269 ​​of the Tax Code of the Russian Federation, it is established that in the absence of debt obligations to Russian organizations issued in the same quarter on comparable terms, as well as at the choice of the taxpayer, the maximum amount of interest recognized as an expense is taken equal to the refinancing rate of the Central Bank of the Russian Federation, increased by 1.1 times, - when issuing a debt obligation in rubles. At the same time, in relation to debt obligations that do not contain conditions for changing the interest rate during the entire term of the debt obligation, the refinancing rate of the Central Bank of the Russian Federation, which was in effect on the date of raising funds, is accepted, and in relation to other debt obligations, the rate effective on the date of recognition of expenses in the form of percentages. Taxation of an individual (in the event that the loan agreement provides for the payment of interest): In accordance with paragraphs. 1 p. 1 art. 208 and paras. 1 st. 209 of the Tax Code of the Russian Federation, income received by a taxpayer in the tax period (calendar year) in the form of interest received from a Russian organization is recognized as an object of taxation for personal income tax. According to paragraph 1 of Art. 224 of the Tax Code of the Russian Federation, the tax rate for such income is set at 13 percent. Consequently, interest received by an individual under a loan agreement is recognized as his income and subject to personal income tax. The organization in this case is recognized as a tax agent for personal income tax. Withholding from the taxpayer of the accrued amount of tax is carried out upon actual payment of the specified funds to the taxpayer or on his behalf to third parties (clauses 4, 6 of article 226 of the Tax Code of the Russian Federation). If the loan is over a year, then the entries: D 50 or 51 K 67 for the loan amount If the loan is less than a year, then the entries D 50 or 51 K 66 for the loan amount Accrued% on the loan: D 20 or 44 K 76 68 Loan repayment D 66.67 K 50.51 Personal income tax paid D68 K 51 % paid D76 K 50.51

Kirill Kholmsky

how to write a response to the tax to "Message demanding clarification." upon the reduction of UTII by the amount of insurance premiums to the PFR, FSS, FFOMS. Documents are not required to be attached, I think only payment receipts are needed.

• Lawyer's response:

  1) According to the standard. From whom the letter came, in that name and write. In the upper right corner, the name of the body (Information Tax Service of the city ...), the position of the person to whom you are addressing, his last name, initials, then yourself "from IP full name, TIN, address, phone number" then STATEMENT or simply write the essence of the letter in text. You send the letter by registered mail or bring it to the tax secretary, on your copy they make a mark on its receipt (date, signature), the second copy is taken away. And the text can be started like this. On June 20, 2011, notification No. 25g was received, according to which the IFTS imposes on me the obligation to pay a fine in the amount of 20,000 due to late payment. I hereby declare that this fine was issued in violation of the rights of the individual entrepreneur, because, in accordance with Article 251 of the Tax Code, the payment was made without violating the deadlines specified by law. I ask you to remove from me the obligation to pay the fine, otherwise the disagreements will be resolved in court. Date signature 2) You can call the tax office (usually they indicate a contact phone number) and clarify. 3) Go to the tax office and look at the samples on the stand.

Galina Blinova

Through the employment service received a subsidy for the development of small businesses, is it taxable?. ....is this subsidy subject to income tax of 13%?

• Lawyer's response:

  I want to upset you, dear. We are all like that. They give with one hand and take away with the other... So far (if they don’t change anything, having realized it!) Things (precisely) for personal income tax are the same as you were told in the tax office. Explain for a long time. Here is the link, open it and read it. An appeal about this from one region and an explanation. Here, you understand, there is such a "trick", as the unforgettable Yeltsin said. Entrepreneurs can (if possible...) receive another subsidy directly from the budget for BUSINESS DEVELOPMENT. That is, bypassing the employment center. There, the articles of the Tax Code are completely different. The Tax Code in article 251, paragraph 1, subparagraph 14 and in article 346.15 paragraph 1.1 subparagraph 1 provides for exemption from taxation of income in the form of earmarked funds received from the budget for the development of entrepreneurial activity. The subsidy will be considered targeted financing if the entrepreneur uses these funds for their intended purpose. Expenses that can be recognized as reasonable are given in Art. 346.16 NK. Regardless of the chosen taxation scheme - (on “income” or “income minus expenses”), it is imperative to keep separate records when spending these funds and be ready to control the targeted spending of budget funds. That's probably all. Why is there such a difference, you ask? I think the point is that the budget money goes through the Employment Center and is a one-time payment of an annual allowance, which can be used to OPEN your own business. As I say, with one hand they give, with the other they take away. But for now, this is how things are. Maybe something will change ... Although it is unlikely, I think. Wait, what else will happen with the "monetization" of housing benefits for beneficiaries ... Here, where else they found a loophole, how to rob beneficiaries. ((

Claudia Belova

• Lawyer's response:

  according to the market In accordance with paragraph 8 of Article 250 of the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation), property (works, services) received under a gift agreement for tax purposes are included in non-operating income, except for the cases specified in Article 251 of the Tax Code of the Russian Federation. Valuation of this property (works , services) is carried out on the basis of market prices determined taking into account the provisions of Article 40 of the Tax Code of the Russian Federation, but not lower than the determined residual value for depreciated property and not lower than the costs of production (acquisition) - for other property (work performed, services rendered) . We remind you that information on prices must be documented by the taxpayer-recipient. In accordance with Article 251 of the Tax Code of the Russian Federation, funds and other property received in the form of gratuitous assistance (assistance) in the manner established by Federal Law No. 95-FZ "On gratuitous assistance (assistance) of the Russian Federation and the introduction of amendments and additions to certain legislative acts of the Russian Federation on taxes and on the establishment of benefits for payments to state non-budgetary funds in connection with the implementation of gratuitous assistance (assistance) of the Russian Federation" in the form of basic funds and intangible assets received free of charge in accordance with international treaties of the Russian Federation, as well as in accordance with the legislation of the Russian Federation by nuclear power plants to improve their safety, used for production purposes, and also in the event that the authorized capital of the transferring or receiving party it consists of more than 50 percent of the contribution (or share) of another participant in the transaction.

Maxim Vilensky

usn advance. we are a public organization, USN 15%, there is no accountant yet. Yesterday I came across an article that Thursday is the last day for paying the advance on the USN. There were a lot of questions. Do all organizations, without exception, have to pay it? do I need to file a declaration for this advance (if necessary, give a sample please) where to find out the kbk for transferring the advance (it is clear that you can take it in the FTS itself, but maybe there is where to look on the Internet)? Am I right in thinking that income is all receipts, and expenses are expenses, but not all expenses can be included in expenses. For example, we have revenues for the 2nd quarter, 5 million of them spent 800 thousand on tax debt for the last year + 45 thousand bought sports equipment that has not yet been transferred, but we will transfer it to the sports school for free use + 3 million for training camps of athletes, the total remains on the account of 1,155,000 rubles .. how to calculate is there an advance payment on usn? and what about the balance of 1155000 rubles? You don't have to pay 15% off it, do you? how then to calculate the next advance payment for 9 months, because 1.155 million is the balance from the 2nd quarter? Thank you

• Lawyer's response:

  My advice to you is to take an accountant, since you are on the simplified tax system, you must keep a book of income and expenses. Your organization is on the simplified tax system income minus expenses), but not all expenses can be included in the costs of the simplified tax system, but according to the Tax Code, 26.2, Art. 346.16 "Procedure for determining expenses" Also, the procedure for determining income under the simplified tax system, art. 346.15 NK And speaking in general, advance payments are considered as follows: for 1 sq. income for 1 sq. minus the cost per 1 sq. and multiply by 15%; for 2 sq. half-year income minus half-year expenses multiplied by 15%, this will be the amount of the advance payment for half a year to calculate how much to pay for 2 sq. m. it is necessary to minus the amount of the calculated advance payment for 1 sq. for 3 sq. income for 9 months minus expenses for 9 months multiplied by 15% this will be the amount of the advance for 9 months to calculate how much to pay for 3 square meters. it is necessary to minus the amount of the calculated advance for 1.2 square meters.

Natalya Mikhailova,

Senior Legal Counsel of Telecom-Service IT Group of Companies

In the life of organizations, especially those that have been created relatively recently, there are quite common cases when there is an urgent need for funds or other property to carry out financial and economic activities. Getting into debt is not always justified: interest rates on loans and credits are high, and potential lenders make serious demands on borrowers in terms of balance sheet assets and the availability of property that can ensure the repayment of the amount of debt.

However, members of the organization can also become "sponsors". Their assistance is not taken into account in income subject to income tax if the conditions provided for in paragraph 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation) are met.

In accordance with paragraph 11 of paragraph 1 of Art. 251 of the Tax Code of the Russian Federation, when determining the tax base, the taxpayer does not take into account income in the form of property received by a Russian organization free of charge:

from the organization, if the authorized (share) capital (fund) of the receiving party consists of more than 50 percent of the contribution (share) of the transferring party;

from the organization, if the authorized (share) capital (fund) of the transferring party consists of more than 50 percent 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 percent of the contribution (share) of this individual.

It is important to note that the received property is not recognized as income for tax purposes only if, within one year from the date of its receipt, the said property (except for cash) is not transferred to third parties.

In economic activity, there are various ways in which the "parent" company provides its subsidiaries with gratuitous assistance. For example:

Contribution to the property of a subsidiary without increasing the authorized capital (Article 27 of the Federal Law of February 8, 1998 No. 14-FZ "On Limited Liability Companies" (hereinafter - Law No. 14-FZ)). Applies if the legal form of the subsidiary is a limited liability company. Property, in accordance with Article 128 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), includes things, including money and securities, other property, including property rights; works and services; protected results of intellectual activity and equivalent means of individualization (intellectual property); intangible benefits.

Forgiveness of debt arising under an agreement (for example, under a loan or supply agreement) between a "parent" organization and a subsidiary. Consider atypical options for "sponsoring", as well as their tax consequences and reflection in accounting.

Your money will be ours

As already mentioned above, if the subsidiary is established in the form of a limited liability company, the "parent" company has the right to contribute to the property of the company in cash (without increasing the authorized capital) in the manner prescribed by Article 27 of Law No. 14-FZ. The possibility of making contributions in other ways is provided for in paragraph 3 of Article 27 of Law No. 14-FZ, which establishes that contributions to the company's property are made in money, unless otherwise provided by the company's charter or decision of the general meeting of the company's participants. In particular, the contribution may be made by financing a transaction for the acquisition of an asset (for example, a vehicle) in favor of a subsidiary with the consequences of subparagraph 11 of paragraph 1 of Art. 251 of the Tax Code of the Russian Federation. In this case, the relationship with the seller of the property can be formalized by a sale and purchase agreement with a plurality of persons on the side of the buyer (Articles 420, 154, 421 of the Civil Code of the Russian Federation).

The transaction accounting procedure for the parties to the transaction will be as follows (the VAT accounting procedure is not considered):

Tax accounting at the "parent" company. The costs of financing a transaction for the acquisition of property in favor of a subsidiary are not subject to accounting as expenses that reduce income tax, due to their non-compliance with the criteria of Article 252 of the Tax Code of the Russian Federation: there is no focus on generating income.

Accounting at the "parent" company. A contribution to the property of a subsidiary will not be reflected on account 58 “Financial investments” due to the non-compliance of this operation with the criteria for financial investments, namely: the one-time fulfillment of the following conditions (clause 2 of the Order of the Ministry of Finance of Russia dated December 10, 2002 No. 126n “On approval of the Regulations according to accounting "Accounting for financial investments" PBU 19/02"):

the presence of properly executed documents confirming that the organization has the right to financial investments and to receive funds or other assets arising from this right;

transition to the organization of financial risks associated with financial investments (the risk of price changes, the risk of the debtor's insolvency, liquidity risk, etc.);

the ability to bring economic benefits (income) to the organization in the future in the form of interest, dividends or an increase in their value.

Subsidiary tax records. The decision to make contributions to the property of the company by financing the transaction allows the subsidiary to apply subparagraph 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation and not to include the received inventory items in income taxable on profits, if the share of participation of the "parent" company in the subsidiary is 50 percent or more.

Accounting for a subsidiary. By virtue of clause 2 of the Order of the Ministry of Finance of Russia dated 06.05.1999 No. 32n “On Approval of the Regulations on Accounting “Income of the Organization” RAS 9/99” (hereinafter referred to as RAS 9/99), the organization’s income is recognized as an increase in economic benefits as a result of the receipt of assets ( cash) or repayment of obligations, leading to an increase in the capital of this organization, with the exception of contributions from participants (property owners).

According to the opinion of the Ministry of Finance of Russia, expressed in Letter No. 07-05-06/107 dated April 13, 2005, a contribution to the property of a limited liability company is subject to accounting in the debit of the property accounts and the credit of the additional capital account.

Since, for the purposes of accounting, the value of the property received by a subsidiary is not income, accordingly, there is no difference between tax and accounting accounting, in accordance with PBU 18/02.

To whom I owe - I forgive everyone

Civil law allows the subjects of relations to independently choose counterparties and does not prohibit transactions, including between a subsidiary and a “parent” company. However, from the point of view of tax legislation, such transactions are qualified as transactions between related parties, and therefore it is necessary to take into account the requirements for the price of goods (works, services) established by Article 40 of the Tax Code of the Russian Federation.

Suppose that a subsidiary company has acquired the property of interest to it from the "parent" organization under a sale and purchase agreement. In this case, the subsidiary has an obligation to pay for the property received under the contract (Article 454 of the Civil Code of the Russian Federation). The seller, being a creditor in the obligation to pay for the transferred property, by virtue of the norm of Article 307 of the Civil Code of the Russian Federation, has the right to forgive the debt that has arisen to the buyer - the debtor, provided that such a transaction does not violate the rights of third parties in relation to the property of the creditor (Article 415 of the Civil Code of the Russian Federation ).

Let us consider the possibility of applying paragraph 251 of the Tax Code of the Russian Federation when forgiving a debt by the “parent” organization of a subsidiary.

In this case, the application of paragraph 251 of the Tax Code of the Russian Federation by the receiving party is debatable due to the following legal conflict:

In accordance with paragraph 2 of Article 38 of the Tax Code of the Russian Federation, property for taxation purposes refers to the 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. In civil circulation, property is things, including money and securities, other property; works and services; protected results of intellectual activity and equivalent means of individualization (intellectual property); intangible benefits (Article 128 of the Civil Code of the Russian Federation).

The concept of property rights in civil law is not disclosed. In the article by N. Troitskaya and E. Prosvetova "Property rights", published in the magazine "Telecom-Parner" No. 3 (142) March 2009, in particular, it is indicated that the property right includes rights in rem (in terms of ownership and other rights in rem) and rights of obligations arising from contracts, as a result of causing harm and from other grounds provided for by law.

Since the fulfillment of the obligation to transfer the goods by the seller, by virtue of Articles 454, 485 of the Civil Code of the Russian Federation, and the terms of the contract is associated with the buyer's obligation to pay for these goods, the seller has a property right - the right to claim, and the very forgiveness of the debt for tax purposes - the transfer property law.

The Ministry of Finance of Russia, guided by the norms of Articles 38 and 251 of the Tax Code of the Russian Federation, explains that the exemption from taxation of income in the form of property received by a Russian organization free of charge, provided for in paragraph 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation, in the presence of the circumstances specified in this article does not apply to the gratuitous receipt of property rights, as well as works and (or) services (Letters of the Ministry of Finance of Russia dated February 13, 2009 No. 03-03-06 / 1/69, dated July 15, 2009 No. 03-03-06 / 1/470, dated March 17, 2008 No. 03-03-06 / 1/183, Letter of the Ministry of Taxes of Russia dated September 17, 2003 No. 02-5-11 / 210-AZh859).

However, there is also an opposite opinion on this issue, set out in the Determination of the Supreme Arbitration Court of the Russian Federation of July 24, 2009 No. VAC-8675/09. The court pointed out that the provision of paragraph 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation applies not only to the transfer of property, but also to property rights. At the same time, the funds in respect of which the debt forgiveness deal was applied were regarded by the court as received free of charge as a result of debt forgiveness from a company whose share in the authorized capital of the receiving party is more than 50 percent.

The transaction accounting procedure for the parties to the transaction will be as follows:

Tax accounting at the "parent" company. Accounts receivable written off on the basis of a debt forgiveness agreement are not taken into account as part of non-operating expenses when forming the tax base for income tax due to the non-compliance of this expense with the criteria of Article 252 of the Tax Code of the Russian Federation and paragraph 2 of paragraph 2 of Article 265 of the Tax Code of the Russian Federation (Letter from the Ministry of Finance Russia dated August 21, 2009 No. 03-03-06/1/541).

Accounting at the "parent" company. The costs of acquiring property sold by a subsidiary correspond to the concept of an expense for accounting purposes - a decrease in economic benefits as a result of the disposal of assets (cash, other property) or the incurrence of liabilities, leading to a decrease in the capital of this organization, with the exception of a decrease in contributions by decision of the participants ( property owners) (clause 2 of the Order of the Ministry of Finance of Russia dated 06.05.1999 No. 33n “On Approval of the Accounting Regulation “Expenses of Organizations” 10/99) - therefore, the transaction is reflected in accounting as follows:

Subsidiary tax records. A subsidiary company may, guided by subparagraph 11, paragraph 1, article 252 of the Tax Code of the Russian Federation and existing judicial practice, not include property received free of charge as a result of concluding a debt forgiveness agreement with the “parent” company in income taken into account when calculating the tax base for tax at a profit. If the subsidiary has no intention of arguing with the regulatory authorities over the accounting procedure for the property received, it is advisable to include the value of the property received free of charge in income taken into account when calculating income tax.

Accounting for a subsidiary. According to paragraph 2 of PBU 9/99, an organization's income is recognized as an increase in economic benefits as a result of the receipt of assets (cash, other property) or the repayment of obligations, leading to an increase in the capital of this organization, with the exception of contributions from participants (property owners). Accordingly, debt forgiveness by the creditor is other income.

The article considered the possibilities of providing gratuitous financial assistance by the "parent" company to a subsidiary not in cash, but in other ways: debt forgiveness and financing of the transaction in favor of the subsidiary; features of their execution in accordance with the requirements of civil law, the reflection of these operations in tax and accounting; risks associated with the use of the options outlined. It is important to note that the use of these methods in practice is rare. And if, when applying the first case - a contribution to the property of a subsidiary by financing a transaction to acquire property - the position of the regulatory authorities or the courts is unknown, then when applying the second method - debt forgiveness - the position of the regulatory authorities is negative (except for cases of debt forgiveness under the contract loan), and judicial practice in favor of taxpayers is rare.

• Chapter 14.7. TAX MONITORING. REGULATIONS OF INFORMATION INTERACTION
• Chapter 14.8. PROCEDURE FOR TAX MONITORING. MOTIVATED OPINION OF THE TAX AUTHORITY

Section VI. TAX VIOLATIONS AND LIABILITY FOR THEIR COMPLETION

• Chapter 15. GENERAL PROVISIONS ON LIABILITY FOR TAX OFFENSES
• Chapter 16. TYPES OF TAX VIOLATIONS AND RESPONSIBILITY FOR THEIR COMPLETION
• Chapter 17. COSTS ASSOCIATED WITH THE IMPLEMENTATION OF TAX CONTROL
• Chapter 18

Section VII. APPEALING ACTS OF TAX AUTHORITIES AND ACTION OR INACTION OF THEIR OFFICIALS

• Chapter 19
• Chapter 20. CONSIDERATION OF A COMPLAINT AND DECISION ON IT

SECTION VII.1. IMPLEMENTATION OF INTERNATIONAL TREATIES OF THE RUSSIAN FEDERATION ON TAXATION AND MUTUAL ADMINISTRATIVE ASSISTANCE IN TAX MATTERS (introduced by Federal Law of November 27, 2017 N 340-FZ)

• Chapter 20.1. AUTOMATIC EXCHANGE OF FINANCIAL INFORMATION
• Chapter 20.2. INTERNATIONAL AUTOMATIC EXCHANGE OF COUNTRY REPORTS IN ACCORDANCE WITH THE INTERNATIONAL AGREEMENTS OF THE RUSSIAN FEDERATION (introduced by Federal Law No. 340-FZ of November 27, 2017)
• Chapter 20.3. MUTUALLY AGREED PROCEDURE IN ACCORDANCE WITH THE INTERNATIONAL TAXATION TREATMENT OF THE RUSSIAN FEDERATION (introduced by Federal Law No. 325-FZ of September 29, 2019)

PART TWO

• Section VIII. FEDERAL TAXES
  • Chapter 21. VALUE ADDED TAX
  • Chapter 22. EXCISES
  • Chapter 23. TAX ON INCOME OF INDIVIDUALS
  • Chapter 24. UNIFIED SOCIAL TAX (ARTICLES 234 - 245) Repealed from January 1, 2010. - Federal Law of July 24, 2009 N 213-FZ.
  • Chapter 25. TAX ON INCOME OF ORGANIZATIONS
  • Chapter 25.1. FEES FOR THE USE OF ANIMAL WORLD OBJECTS AND FOR THE USE OF WATER BIOLOGICAL RESOURCES OBJECTS (introduced by Federal Law No. 148-FZ of November 11, 2003)
  • Chapter 25.2. WATER TAX (introduced by Federal Law No. 83-FZ of July 28, 2004)
  • Chapter 25.3. STATE DUTIES (introduced by Federal Law No. 127-FZ of November 2, 2004)
  • Chapter 25.4. TAX ON ADDITIONAL INCOME FROM THE PRODUCTION OF RAW HYDROCARBONS (introduced by Federal Law No. 199-FZ of July 19, 2018)
  • Chapter 26. TAX ON EXTRACTION OF MINERAL RESOURCES
• Section VIII.1. SPECIAL TAX REGIME (introduced by Federal Law No. 187-FZ of December 29, 2001)
  • Chapter 26.1. TAXATION SYSTEM FOR AGRICULTURAL PRODUCERS (SINGLE AGRICULTURAL TAX) (as amended by Federal Law No. 147-FZ of November 11, 2003)
  • Chapter 26.2. SIMPLIFIED TAXATION SYSTEM (introduced by Federal Law No. 104-FZ of July 24, 2002)
  • Chapter 26.3. TAXATION SYSTEM IN THE FORM OF A SINGLE TAX ON IMPUTED INCOME FOR CERTAIN TYPES OF ACTIVITIES (introduced by Federal Law No. 104-FZ of July 24, 2002)
  • Chapter 26.4. TAXATION SYSTEM FOR THE IMPLEMENTATION OF PRODUCT SHARED AGREEMENTS (introduced by Federal Law No. 65-FZ of June 6, 2003)
  • Chapter 26.5. PATENT TAXATION SYSTEM (introduced by Federal Law No. 94-FZ of June 25, 2012)
• Section IX. REGIONAL TAXES AND FEES (introduced by Federal Law No. 148-FZ of November 27, 2001)
  • Chapter 27. SALES TAX (ARTICLES 347 - 355) Repealed. - Federal Law of November 27, 2001 N 148-FZ.
  • Chapter 28. TRANSPORT TAX
  • Chapter 29. TAX ON GAMBLING BUSINESS
  • Chapter 30. TAX ON PROPERTY OF ORGANIZATIONS
• Section X. LOCAL TAXES AND FEES (as amended by Federal Law No. 382-FZ of 29 November 2014)
  • Chapter 31. LAND TAX
  • Chapter 32. TAX ON PROPERTY OF INDIVIDUALS
  • Chapter 33
• Section XI. INSURANCE PREMIUM IN THE RUSSIAN FEDERATION (introduced by Federal Law No. 243-FZ of July 3, 2016)
  • Chapter 34. INSURANCE PREMIUM

Article 251 of the Tax Code of the Russian Federation. Income not taken into account when determining the tax base

20) funds in the form of contributions received by a non-profit organization, the founder of which is the Russian Federation represented by the Government of the Russian Federation, the main objectives of which are to support domestic cinematography, increase its competitiveness, provide conditions for creating high-quality films that meet national interests, and popularize national films in the Russian Federation, within the limits of the amounts provided by the specified non-profit organization on the terms of equity participation for the production of national films or in reimbursement of expenses for these purposes, the source of which is budgetary appropriations.

3. In case of reorganization of organizations, when determining the tax base, the value of property, property and non-property rights having a monetary value, and (or) obligations received (transferred) in the order of succession during the reorganization of legal persons who were acquired (created) by the reorganized organizations before the date of completion of the reorganization.

Can an organization, when paying income tax, having sold property received free of charge, take into account the costs of its acquisition?

The income of the organization can be obtained from the sale - this is the profit associated with the production and sale of goods. But there are non-operating incomes, which, in particular, include property received free of charge. Such income is also taxed, with the exception of the cases listed in Art. 251 of the Tax Code of the Russian Federation. According to the norm of this article, such income as property received free of charge is exempted from inclusion in the tax base. Income tax on such income is not paid under the special condition that it was transferred to the firm solely for the purpose of increasing the net assets of the organization. For example, by inclusion in the authorized capital or by forming additional capital. It turns out that the opportunity not to take into account property received free of charge as income when paying income tax depends on the purpose for which such property was received. Accordingly, the real opportunity to take into account the costs associated with the acquisition of such property when selling it also depends on this. So, property received free of charge can:

• be taxed as income;
• or not included in the tax base if it increases the firm's assets.

In the first case, the value of such property upon payment of tax is calculated on the basis of the market value. Income tax is paid on the basis of the value at the market price, but not lower than the residual value (price information is confirmed by an independent assessment). And then, according to Article 268 of the Tax Code of the Russian Federation, when selling such property, the company has the right to reduce its income by the amount of its acquisition, on the basis of which income tax was calculated and paid. In the second case, when property was received free of charge to increase assets, the norm of Article 268 of the Tax Code of the Russian Federation does not apply. Indeed, according to Article 251 of the Tax Code of the Russian Federation, in this case, the organization does not receive income, and, therefore, no income tax is paid. When selling such property, the company cannot take into account the costs of acquiring it in taxation, since no costs were actually incurred. In such a situation, the costs will be zero. It turns out that the ability to take into account the value of property received free of charge as an expense, paying income tax upon its sale, directly depends on the purpose for which the property was transferred. It is possible to reduce the income tax if only such property was accepted on the balance sheet of the organization as non-operating income, and the tax on such income was paid.

Can parents' fees for childcare in kindergartens be considered free of charge and not taken into account as income when paying income tax or tax on the simplified tax system?

If a preschool institution applies the simplified tax system, it does not pay income tax. Income tax is transferred to the budget of organizations using the general tax system. However, the payment of taxes in case of “downgrading” is similar to the deduction of income tax - both there and there the amount of income is reduced by the amount of expenses, and the tax is already paid from the remaining amount. The main difference lies in the size of the interest rate - the conditions for the simplified tax system are more preferential. What funds can be ignored when determining the tax base? According to paragraph 2 of Article 251 of the Tax Code of the Russian Federation, such non-recorded income may include receipts of funds from firms or individuals. persons aimed at the content of non-commercial. organizations and conduct their activities in accordance with the charter. Such funds are referred to as “earmarked income”. One of the conditions for classifying cash or property receipts as targeted is their transfer free of charge. According to Article 248, property can be considered transferred free of charge only if its receipt does not entail any obligations for the recipient organization, including the provision of services. Turning to the Federal Law No. 273 on education, we find out that child care in kindergartens and preschool institutions is understood as a set of measures to organize their nutrition, leisure and consumer services. In fact, kindergartens and other institutions that provide care and supervision for children on a paid basis provide a service to the parents of these children. It turns out that the parental payment for the garden cannot be recognized as free of charge, since in return the preschool educational institution provides a childcare service. Within the meaning of paragraph 2 of Article 251 of the Tax Code of the Russian Federation, such a payment will not be targeted income. And, therefore, should be taxed as income. It is worth noting that by paying the STS or income tax, the kindergarten has the right to reduce the taxable amount for the expenses incurred. Such expenses include the cost of food for children, wages of educators, other employees and others. If the cost of childcare is equal to the income from the parental payment for this care, then the tax base may be zero.