We contribute property to the authorized capital. Capital contribution

For several years now, the Civil Code has contained provisions that the minimum authorized capital of a company during its creation must be paid exclusively in cash (paragraph 1, article 66.2 of the Civil Code of the Russian Federation). different kind"non-monetary contributions" can only supplement it, but only when the minimum part has already been formed. For example, if according to the documents the amount of the “charter” is 30,000 rubles,
then 10,000 of them must be paid exclusively in cash, and the remaining 20,000 rubles can be paid in any other property (real estate, securities, things, property rights).

Any property and property rights must be assessed by an independent appraiser,
and their value must be supported by a valuation report. The founders need to sign the relevant act, and then unanimously approve this "cash equivalent"
on the general meeting. Please note: information on the amount of contributions to the authorized capital made by property must be reflected in the decision. When the registration of the campaign is completed, the owners who have made a “property” contribution must transfer it to the balance sheet of the newly minted company according to the act of acceptance and transfer.

Money is not property

From the foregoing, we can conclude that making a contribution to the common cause with property is not very convenient. And not even because the payment for the services of an independent appraiser may turn out to be much higher than the value of the things or other non-monetary assets being appraised by him. The problem is that the founders make mistakes when performing the procedure for depositing property, and some of these mistakes can cause a refusal to register a company. Even an illiterate wording of the charter or protocol can spoil the matter, despite the fact that the duties of the tax authorities do not include checking the content of the documents submitted for registration.

Behind recent months arbitrators have already considered several such disputes. In each of them, the applicant companies were sure that an unsuccessfully constructed phrase could not be the reason for refusal, since this contradicts paragraph 1 of Art. 23 of the Federal Law of August 8, 2001 No. 129-FZ (hereinafter - Law No. 129-FZ). However, in practice things turned out differently.

The citizen, as the sole founder, submitted documents to the inspection for registration of the company. At the same time, the decision stated that the authorized capital of the company was determined in the amount of 10,000 rubles with the "full" payment of the specified amount by property. But the inspection refused to register such a company. The registrars pointed out that the company's decision indicated that the ten thousandth "charter" would be formed "... by contributing property." The type of property was not specified. However, according to paragraph 2 of Article 66.2 of the Civil Code of the Russian Federation, the authorized capital of such (i.e., minimum) size can be contributed exclusively in cash. Accordingly, the decision contains illegal wording. And if so, then it is considered unsubmitted. The unsuccessful applicant tried to appeal the decision of the tax authorities to a higher authority. And after receiving another refusal, the entrepreneur turned to arbitration.

In the courtroom, he tried to explain that there was nothing illegal in the wording that confused the tax authorities. Phrase about formation authorized capital"...by contributing property"
does not exclude the introduction of money into the authorized capital of the company, because, according to Article 128 of the Civil Code of the Russian Federation, money refers to property. In addition, the plaintiff reminded the arbitrators that the registrars are generally not authorized to check the content of the submitted documents for their compliance with federal laws or other regulations contained
they contain information, with the exception of the application (by virtue of Part 4.1 of Article 9 of Law No. 129-FZ). And, plus, he added that at the time of the registration body's decision, the authorized capital
was not formed, so it is premature to speak of a violation of the order of its formation. In addition, the size of the “charter” is entered into the Unified State Register of Legal Entities solely on the basis of constituent documents, the procedure for forming the authorized capital in the register
is not reflected. And the information contained in the decision to create a company is not included there either.

But the judges of all three instances supported the denial of registration. The arbitrators confirmed that it is indeed unclear from the decision what specific property is to be contributed to the authorized capital. In addition, there was no information on how its value was estimated. According to the judges, it is unacceptable to indicate that, upon the fact of state registration of a legal entity, an impersonal property belonging to the founder on the right of ownership for the formation of the authorized capital must be contributed.

As for the argument that money is special case property, so the “controversial” wording of the decision is quite acceptable, the judges fully agreed with the tax authorities. The fact is that the provisions of the Civil Code of the Russian Federation and the Law on LLC, indeed, clearly distinguish between monetary and non-monetary contributions to the authorized capital. Therefore, from a literal reading of the specified paragraph of the founder’s decision, it follows that the “charter” is going to form a non-monetary contribution in the amount of 10,000 rubles, which directly contradicts the law.

The judges also explained the plaintiff's claim regarding the unlawfulness of the inspectorate's verification of the wording in the documents. According to the arbitrators, if the authorized capital is contributed illegally, it will be considered that it has not been contributed at all. And then it turns out that the State Register contains false information that the capital has been formed (because data on it is submitted before the start of the deposit procedure). From this, according to the judges, we can conclude that, taking care of the veracity of the information in the Unified State Register of Legal Entities and checking that the documents contain the information provided for by law, the tax authorities had the right to recognize the decision
on the creation of a society improper and, accordingly, not provided. Therefore, the refusal to register should be considered lawful (the court decision of November 9, 2015, the decisions of the Seventeenth Arbitration Court of Appeal of February 1, 2016 and the Arbitration Court of the Ural District of June 9, 2016 No. F09-5891 / 16 in case No. A71-9310 / 2015).

From the old law

Another company got into a similar situation - the tax authorities rejected its charter. And although in this case the violation itself, in my opinion, looks rather controversial, the trend, as they say, is “obvious”.

So, the registrars did not like that the charter contains the wording: “... approval of the monetary value of securities, other things or property rights or other rights having a monetary value, contributed by the founders of the company to pay for shares in authorized capital companies are adopted by the founders of the company unanimously. As in the previous dispute, the applicant considered the refusal unlawful and applied to arbitration.

But the judges and this time supported the point of view of the employees of the state registry. Servants of Themis pointed out that the phrase, which is in the charter and alerted the tax authorities, was taken from Article 15 of the Federal Law of February 8, 1998 No. 14-FZ (hereinafter - Law No. 14-FZ). And at the moment when this wording was included in the law, it meant that the monetary value of non-property rights is carried out by the participants. At present, this directly contradicts paragraph 2 of Article 66.2 of the Civil Code, which states that only an independent appraiser can evaluate a non-monetary contribution, and the founders can only approve it.

The applicant’s argument that the clause of the charter does not duplicate any provisions of the law, but only clearly expresses the idea that the assessment is only approved by the founders, as required by clause 2 of Article 66.2 of the Civil Code of the Russian Federation, the arbitrators rejected, pointing out that the charter was not drawn up according to the law and therefore is considered unsubmitted. The auditors confirmed the legality of the refusal to register (the decision of the Arbitration Court of the Republic of Tatarstan of January 14, 2016, the decisions of the Eleventh Arbitration Court of Appeal of April 6, 2016 and the Arbitration Court of the Volga District of July 26, 2016 No. F06-10770 / 2016 in case No. A65 -23937/2015).

Data verification – possible

Information on the size and procedure for the formation of the authorized capital of the enterprise being created is among the information necessary for state registration, and their compliance with the law is mandatory (clause a, article 12 of Law No. 129-FZ). Accordingly, these conclusions of the arbitrators and tax authorities are quite reasonable.

But the refusal to register due to the fact that the wording in the charter coincided with the "old" law, to put it mildly, is not disputable. Nevertheless, in the dispute described, the appellate arbitrators of the Republic of Tatarstan emphasized that despite the fact that Law No. 129-FZ does not contain provisions that would empower the tax authorities to verify the compliance of constituent documents, such an audit did not affect the legality of the court’s conclusions.

Security and investment functions are not the main ones for the authorized capital, in modern conditions The management company is more of a corporate control tool. Operations with it can lead to a change in the structure of corporate ownership.

Authorized capital as an instrument

The authorized capital of a company is the minimum amount of property that guarantees the interests of creditors (paragraph 2, paragraph 1, article 90, paragraph 2, paragraph 1, article 99 of the Civil Code of the Russian Federation). The source of its formation is the funds of the participants: for an LLC, this is the value of the shares acquired by the participants, and for a JSC, the nominal value of the shares acquired by the shareholders. Having endowed the management company with security features, the Civil Code of the Russian Federation also establishes a requirement for its minimum amount (for LLC, ALC and CJSC - 10,000 rubles, for OJSC - 100,000 rubles), which allows participants (shareholders) to limit their liability to the value of the acquired shares (shares ).

The requirement for the minimum amount of the authorized capital is determined by the legislator at a relatively low level, which cannot sufficiently guarantee the interests of creditors. No one, however, prevents the company from increasing its charter capital, thereby demonstrating the degree of its solvency for creditors.

To ensure the interests of creditors, the legislator has provided for one more requirement in relation to the UK: the amount of net assets following the results of the second and each subsequent financial year cannot be less than the amount of the declared authorized capital. If this indicator turns out to be less than the UK in these cases, the company is obliged to reduce the amount of the latter to the value of net assets. If after that the authorized capital is less than the minimum amount, the company is subject to liquidation.

The use of such a method of financing as the contribution of property to the authorized capital bears a number of inconveniences. The main one is that the contributed property becomes the property of the company and the founder loses all rights to it. From this property, the claims of the company's creditors are satisfied, and the founder can only count on receiving the liquidation value, which is formed after the repayment of creditors' claims in the event of termination of the business company.

Payment of shares and shares in the UK

Let's consider the procedure for paying shares in the authorized capital of an LLC and paying for shares in a JSC when creating a company and the legal consequences of such operations.

It should be noted that with the entry into force of the Federal Law of December 30, 2008 No. 312-FZ, which underwent a radical revision legal regulation LLC, the procedure for making a contribution to the charter capital of an LLC has been replaced by the payment of shares in the LLC's management company, which leads to legal regulation business companies various forms to a more uniform look.

Each founder of an LLC must pay in full his share within the period determined by the agreement (decision) on the establishment of the company and cannot exceed one year from the date of state registration of the company at a price not lower than its nominal value. A similar rule is provided for the payment of shares by Article 34 of the JSC Law: the founders are obliged to pay for the shares within a year after the establishment of the JSC, unless a shorter period is established by the agreement on the creation of the company. At the time of state registration of an LLC, its authorized capital must be paid at least half. At least 50% of the shares of a joint-stock company distributed during its establishment must be paid for within three months from the date of state registration of the company. A share owned by the founder of the company does not provide voting rights until the moment of its full payment, unless otherwise provided by the charter of the joint-stock company. A similar provision is now present in the LLC Law: the share of the founder of the company, unless otherwise provided by the charter of the company, provides the right to vote only within the paid part of his share.

If in fixed time the share or shares are not paid in full, the unpaid part of the share and the ownership of the shares, the placement price of which corresponds to the unpaid amount (the value of the property not transferred as payment for the shares), are transferred to the company.

The legislation provides for the possibility of selling shares and shares above their nominal value. As a result, the so-called share premium on shares, or the difference between the cost of paying for a share in the authorized capital of an LLC and the nominal value of such a share, is formed. The specified difference and share premium do not increase the authorized capital of companies and are not taken into account as income when determining the income tax base. This method of financing has an advantage over the usual contribution to the authorized capital, as it makes it possible to maintain a low size of the authorized capital, which entails a reduction in the risks that are possible if the amount of the authorized capital at the end of the second and each subsequent financial year exceeds the amount of the company's net assets.

Payment for shares and shares can be made in money, securities, other things, property or other rights that have a monetary value (clause 1, article 15 of the Law on LLC, clause 2 of article 34 of the Law on JSC). In case of making Money they are credited to a savings account, which is created specifically for these purposes. Other property is subject to monetary valuation, on the basis of which the amount of the participant's contribution is determined. It should be noted that in accordance with the letter of the Federal Service for Financial Markets dated March 22, 2007 No. 07-OV-03/5724, payment by non-residents of shares of Russian joint-stock companies, including when they are placed, can be made in foreign currency. For residents, such payment is not allowed.

Monetary valuation of property contributed as payment for shares in non-monetary form is made on the basis of a decision of the general meeting of participants, which must be adopted unanimously. For joint-stock companies, monetary valuation is made by agreement between the founders. When paying for shares with non-monetary funds, an independent appraiser must be involved to determine the market value of such property, unless otherwise provided by federal law. The value of the monetary valuation of property made by the founders of the company and its board of directors (supervisory board) cannot be higher than the valuation of an independent appraiser. For an LLC, the involvement of an appraiser is mandatory only if the nominal value of the participant's share in the charter capital, paid in non-monetary funds, exceeds 20,000 rubles.

Real estate - in payment for shares of JSC and shares of LLC

The special procedure provided for by the legislation for the transfer of real estate gives rise to a number of issues, including those related to the moment when the right of ownership to real estate of the created legal entity arises.

Recall that Art. 213 of the Civil Code of the Russian Federation states that commercial and non-profit organizations, except for state and municipal enterprises, as well as institutions, are the owners of property transferred to them as contributions (contributions) by their founders (participants, members), as well as acquired by them on other grounds. Guided by this provision, the Plenum of the Supreme Arbitration Court of the Russian Federation in its resolution of February 25, 1998 No. 8 indicated that from the moment the property is entered into the authorized (reserve) capital and state registration of legal entities, their founders (participants) lose their ownership of it, which passes to the company .

However, in cases where the alienation of property is subject to state registration, the acquirer's ownership right arises from the moment of such registration, unless otherwise provided by law (Article 223 of the Civil Code of the Russian Federation). Considering that state registration is the only evidence of the existence of a registered right (clause 1, article 2 of the Federal Law of July 21, 1997 No. 122-FZ), a fair question arises: from what moment the ownership of real estate is considered transferred to the company? There is no legal solution to this legislative conflict. And the presence of the rule that by the time the LLC is established, 50% of its authorized capital must be paid (clause 2, article 16 of the Law on LLC), makes it legally impossible to pay for the specified share of the Criminal Code with real estate.

A problematic situation also arises in the process of paying for shares in the authorized capital of an LLC with property, the transfer of rights to which is also subject to registration (see Example 1).

Example 1

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The right to a registered paperless security passes to the acquirer: if the rights to securities for a person carrying out depository activities - from the moment of making a credit entry on the acquirer's depo account; in the case of accounting for rights to securities in the registry system - from the date of making a credit entry on the personal account of the acquirer (Article 29 of Federal Law No. 39-FZ of April 22, 1996).

In addition, paragraph 2 of Art. 1232 of the Civil Code of the Russian Federation establishes the requirement for state registration of the alienation of exclusive rights to the results of intellectual activity or to a means of individualization, the pledge of this right and the granting of the right to use such a result or such means under an agreement, as well as the transfer of the exclusive right to such a result or such means without an agreement, and paragraph 6 of Art. 1232 of the Civil Code of the Russian Federation establishes that non-compliance with this requirement entails the invalidity of the relevant agreement. In case of non-compliance with the requirement for state registration of the transfer of an exclusive right without an agreement, such a transfer is considered to have failed.

In accordance with the letter of the Federal Tax Service dated 13.12.2005 No. ШТ-6-07/1045, the documents confirming the payment of the MC with non-cash funds are copies of the document confirming the shareholder’s (participant’s) ownership of the property, with the application of a report on the assessment of objects and an act of acceptance - transfer of property.

Restrictions on non-monetary deposits

As a non-monetary contribution to the authorized capital, it is impossible to make property that cannot be owned by legal entities. Here we should mention the property withdrawn from circulation and limited in circulation, as well as that which can only be owned by public legal entities (for example, objects of the exclusive property of the Russian Federation).

There are also restrictions on the amount of non-monetary contributions to the management company, established for subjects of certain types of activities. For example, Instruction No. 109-I of the Central Bank of the Russian Federation dated January 14, 2004 states that no more than 20% of the charter capital of a credit institution being established can be paid for in non-cash funds. This provision also applies to cases of payment for shares and shares at a price higher than their nominal value - property in non-monetary form, the value of which does not exceed 20% of the placement price of shares (the price of payment for shares), can be sent for their payment. Instruction No. 109-I also establishes a list of types of non-monetary property that may be contributed to the charter capital of a credit institution.

Restrictions on the types of non-monetary property that can be contributed to the charter capital of a JSC may also be provided for by the charter of a JSC (Clause 2, Article 34 of the JSC Law).

Property, results of intellectual activity and other objects intellectual property, contributed to the authorized capital, are depreciated, and due to depreciation deductions, the income tax base is reduced (Article 256 of the Tax Code of the Russian Federation).

Taxpayers have previously resorted to abuse: fully depreciated property was taxed at its market value, on the basis of which depreciation charges were charged without the actual costs of depreciation, which had already been fully completed. However, introduced federal law dated 06/06/2005 No. 58-FZ, para. 3 sub. 2 p. 1 art. 277 of the Tax Code of the Russian Federation established that property (property rights) received in the form of a contribution to the authorized capital, for the purpose of profit taxation, is accepted at the residual value. And it is determined according to the data tax accounting transferring party on the date of transfer of ownership of the said property (property rights), taking into account additional costs the transferring party associated with such a contribution, if they are defined as a contribution to the authorized capital. If the receiving party cannot document the value of the contributed property (property rights) or any part thereof, then it is recognized as equal to zero in the appropriate proportion.

Legal consequences of adding property to the Criminal Code

The inclusion of property in the Criminal Code entails the termination of the founder's ownership of it and the emergence of a corresponding right for the company. The founders, losing property rights to the contributed property, thereby acquire the rights of obligations in relation to the company. And certain types these rights are proprietary. Thus, the participants have the right to participate in the distribution of the company's profits and to the property remaining after the liquidation (after the repayment of creditors' claims) - the liquidation value. The shareholder can sell his shares received as a result of the contribution of property to the authorized capital of the JSC, and the participant of the LLC, upon withdrawal from the membership, must be paid the actual value of his share. Thus, the contribution of property to the authorized capital of a company cannot be qualified as a gratuitous transfer of funds.

In addition to the property nature, the legal relationship that has arisen is characterized by organizational interaction between the participants and society. Shareholders and participants participate in the management of the company's affairs. All major decisions in the company are made by the general meeting of participants or shareholders. Such issues include changes in the structure of the authorized capital, the formation executive bodies, row assignment officials, approval of large transactions and other issues.

Incomes in the form of property, property or non-property rights having a monetary value, which are received in the form of contributions (contributions) to the authorized (share) capital (fund) of an organization (including income in the form of an excess of the placement price of shares (stakes) over their nominal value (initial size)), are not taken into account when determining the base for income tax (subclause 3, clause 1, article 251 of the Tax Code of the Russian Federation).

Also, the transfer of property, if it is of an investment nature (including making a contribution to the company's Criminal Code), is not recognized as a sale and, accordingly, is not subject to VAT (subclause 4, clause 3, article 39 of the Tax Code of the Russian Federation). However, it is necessary to take into account paragraph 3 of Art. 170 of the Tax Code of the Russian Federation: tax amounts accepted for deduction by the taxpayer on goods (works, services), including fixed assets and intangible assets, property rights, are subject to recovery in the event of the transfer of property, intangible assets and property rights as a contribution to the authorized (stock) capital of societies and partnerships or share contributions to share funds of cooperatives. The above norm is relevant only if the taxpayer deducted the indicated amounts of VAT (for example, he could use the simplified tax system and not pay VAT at all). In accordance with paragraph 11 of Art. 171 of the Tax Code of the Russian Federation, the receiving party can then deduct the amounts of tax that were restored by the participant or shareholder in accordance with paragraph 3 of Art. 170 of the Tax Code of the Russian Federation.

VAT evasion schemes

Taxpayers often use equity contributions as a way to avoid paying VAT. The contribution of funds to the Criminal Code is not targeted and serves as a source of formation of the property base of the receiving party. The transferring party receives in exchange for shares in the receiving party and sells them, thereby receiving equivalent compensation for the property contributed to the authorized capital and without paying VAT.

Litigation practice

This scheme has been considered arbitration court, the conclusions of which are contained in the resolution of the FAS SKO dated November 20, 2006 No. F08-5894 / 2006-2447A in case No. A63-4910 / 2006-C4. The court concluded that the transfer of funds to the authorized capital was not of an investment nature and therefore cannot be exempted from VAT.

A common scheme is aimed at obtaining a VAT refund from the budget by a person who did not actually pay for the goods. In this case, funds are transferred from the parent organization to the subsidiary, and the latter almost immediately pays for the goods purchased from the parent company with these funds. The scheme can use another intermediate link through which funds are transferred. At the same time, the party paying for the goods is not directly related to the organization - the supplier of the goods. As a result, the goods are transferred to the party that did not pay any payment for them and received the right to deduct VAT, and the initial funds paid are returned to the parent organization. Often, the actual goods do not even leave the warehouse of the parent company.

Litigation practice

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In this regard, noteworthy is the resolution of April 5, 2006 No. F08-1281 / 2006-548A in case No. A53-22210 / 2005-C6-44, in which the FAS SKO came to the conclusion that the operation to increase the Criminal Code in cash and followed by the next day, payment at the expense of these funds for the work performed in favor of the financing company of the MC is the payment of invoices from one organization with invoices from the same organization. For this reason, in this situation, there is no statutory condition for VAT refunds - payment at the expense of the company's own funds.

Increase in the company's charter capital

The authorized capital of an LLC can be increased at the expense of the company's property or the contributions of current or potential participants, for a JSC there are two ways - an increase in the nominal value of shares and the placement of additional shares. Moreover, the increase in the nominal value of shares is possible only at the expense of the property of the company. Thus, relevant ways increase in the authorized capital for the purposes of financing the company are:

• for LLC - at the expense of contributions of current and potential participants;
• for JSC - by placing additional shares among current and potential shareholders (placement of additional shares at the expense of the company's property does not lead to a change in the ratio of shareholding of various participants - clause 5 of article 28 of the JSC Law).

The greatest number of questions in law enforcement practice arises just in the latter cases. Problems arise in situations where an increase in the authorized capital leads to a change in the shareholder structure. For these reasons, a quorum prescribed by law is required to make a decision to increase the Criminal Code.

For a JSC, the following procedure for increasing the authorized capital is provided - a decision must be made by the general meeting of shareholders on the basis of a proposal from the board of directors, unless otherwise provided by the charter of the company, or by the board of directors, if this authority is granted to it by the charter of the company. The decision to increase the management company of an LLC at the expense of the participants’ funds is made at the general meeting of participants by a majority of at least 2/3 of total number participants. At the same time, each participant has the right to make an additional contribution, not exceeding a part of the total cost of additional contributions, proportional to the size of his share in the authorized capital of the company.

Not later than one month from the date of the expiration of the period for making additional contributions, the general meeting of participants must decide on the approval of the results of this procedure and on the introduction of appropriate amendments to the charter of the company. At the same time, the nominal value of the share of each participant who made an additional contribution increases in accordance with the ratio determined by the decision to increase the authorized capital.

Loss of corporate control

An increase in the authorized capital at the expense of participants or shareholders leads to a change in the shareholder structure in cases where any of the shareholders (participants) does not pay for the shares offered to him or does not contribute funds to the authorized capital of the LLC in proportion to his share. The need for a decision to increase the authorized capital of only 2/3 of the votes at the general meeting of participants of the LLC and half of the votes of shareholders at the general meeting of shareholders (with the condition of a mandatory proposal by the board of directors) makes it possible for the majority shareholders to expand corporate control and dilute the shares of minority shareholders by increasing the authorized capital .

Example 2

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An example of a corporate conflict in CJSC FC Lokomotiv can be cited as an illustration. The shareholding structure of the club is as follows: 70% of the shares are owned by Russian Railways, 15% of the shares are owned by Valery Filatov ( former president) and Yuri Semin (former, now current, head coach). CJSC FC Lokomotiv decided to increase the authorized capital by placing additional shares in the amount of 3 billion rubles. Given that the club's authorized capital is 50,000 rubles, and minority shareholders will not contribute funds to pay for shares, their shares will be diluted to negligible values. The difficult situation in the club due to the unsatisfactory results of the team prompted the management of ZAO FC Lokomotiv to turn to Yuri Semin with a request to lead the team. For this reason, the dispute that arose during the first court session on May 25, 2009 was decided to be terminated by the conclusion of a settlement agreement that would suit both parties. If the dispute had continued, then Semin would hardly have been able to recognize the increase in the Criminal Code as illegal, and his share of the shareholding could have been significantly reduced.

The only way to protect the rights of participants in an LLC is to fix it at the level of the charter in accordance with paragraph 8 of Art. 37 of the Law on LLC requirements for the need for a larger (than 2/3) number of votes to make a decision to change the charter and increase the Criminal Code. In JSCs, the situation is more complicated: shareholders' rights are guaranteed by the rule that additional shares can be placed only within the limits of the number of declared shares approved by the company's charter. Decisions to change the charter can only be made by ¾ of the total number of votes at the general meeting of shareholders (clause 4, article 49 of the JSC Law). Thus, only a package of 25% plus 1 share can block changes to the charter.

Contribution to property

The charter of an LLC may provide for the obligation of participants to make contributions to the property of the company on the basis of a decision of the general meeting of participants, failure to comply with which gives the company the right to require the participant to pay the appropriate amount of money (Article 27 of the LLC Law). Another side of the corporate characteristic of a contribution to the company's property is its civil law qualification. From the point of view of corporate law, a contribution to the company's property is not a gratuitous transfer of funds, as it increases the actual value of the share that each participant has the right to demand when leaving the LLC.

Litigation practice

This conclusion is confirmed by the materials of judicial practice: the decision of the FAS MO dated January 23, 2006 in case No. KA-A40 / 13961-05-P; FAS ZSO dated May 4, 2006 in case No. F04-5209 / 2005 (22104-A27-3); FAS MO dated March 9, 2007 in case No. KA-A40 / 875-07.

From a tax point of view, a contribution to the company's property is considered a gratuitous transfer of funds. Recall that property (works, services) or property rights are considered received free of charge if their receipt is not associated with the recipient's obligation to transfer property (property rights) to the transferor (perform work for him, provide services to him) (part 2 of article 248 Tax Code of the Russian Federation). In this case, the company does not have such an obligation, therefore, the property received in accordance with Art. 27 of the LLC Law, should be accounted for as non-operating income (clause 8, article 250 of the Tax Code of the Russian Federation). An exception to this rule is 11 p. 1 art. 251 of the Tax Code of the Russian Federation (see the section "Free transfer").

Litigation practice

The tax qualification of a contribution to the company's property is also confirmed by the materials of judicial practice: the decision of the Federal Antimonopoly Service of the Moscow Region dated December 2, 2004 in case No. KA-A40 / 11127-04; of the Ninth Arbitration Court of Appeal of December 25, 2006, January 9, 2007 in case No. 09AP-15910/2006-AK.

Negative civil law consequences (qualification of the transaction as a donation between commercial organizations) does not occur in this case. It is also necessary to take into account the existence of the obligation of the participant to make a contribution and the corresponding right of claim from the company.

The transfer of property to a joint-stock company by its shareholder is not a gratuitous transfer of funds for the purposes of civil law qualification for the same reasons that are given above in relation to an LLC: the contribution leads to an increase in the assets of the company, as well as an increase in the value of shares, liquidation value and the amount of dividends paid . The tax qualification of such contributions will be the same as in the case of an LLC, that is, they will be treated as a gratuitous transfer of funds.

An essential feature of the legal regime of contributions to the property of a joint-stock company, which distinguishes them from contributions to the property of an LLC, is the absence of an obligation for shareholders to make these contributions, that is, a joint-stock company is not entitled by its charter to establish such an obligation for shareholders. The question of the possibility of resolving this situation by a shareholder agreement remains open, but in this case, such an obligation will apply only to persons who are parties to such an agreement, and not to all shareholders (clause 4, article 32.1 of the JSC Law).

Free transfer

In accordance with paragraph 8 of Art. 250 of the Tax Code of the Russian Federation, income in the form of gratuitously received property (works, services) or property rights is qualified as non-operating income and taken into account when calculating the income tax base. According to sub. 11 p. 1 art. 251 of the Tax Code of the Russian Federation, the exception is income in the form of property received by a Russian organization free of charge:

• from an organization whose contribution (share) exceeds 50% of the authorized (share) capital (fund) of the receiving party;
• from an organization whose authorized (share) capital (fund) consists of more than 50% of the contribution (share) of the receiving organization;
• from individual whose contribution (share) exceeds 50% of the authorized (share) capital (fund) of the receiving party.

Applied to the topic under consideration we are talking on tax-free transfer of funds within the holding: from the parent organization to a subsidiary and from an individual who is a majority participant or shareholder to the company.

The main problems are related to the rule according to which property is not recognized as income for tax purposes only if, within one year from the date of receipt, it (with the exception of cash) is not transferred to third parties.

According to the Ministry of Finance, if the received property is transferred for rent, trust management, use, pledge, as well as on any other right that does not entail the transfer of ownership, the taxpayer cannot apply the benefit provided for in subpara. 11 p. 1 art. 251 of the Tax Code of the Russian Federation (letter No. 03-03-04/1/100 dated February 9, 2006).

Litigation practice

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Arbitrage practice confirms that non-payment of a share in the authorized capital of an LLC or shares and withdrawal of the transferor from the membership during the year do not affect the application tax break according to sub. 11 p. 1 art. 251 of the Tax Code of the Russian Federation (FAS MO dated 15.06.2006 No. KA-A41 / 5286-06 in case No. A41-K2-11674 / 05; FAS DO dated 12.30.2005 No. F03-A73 / 05-2 / 4367 ). The courts conclude: the withdrawal of an individual before the end of the year from the founders of the company does not change legal status the specified funds as received free of charge and not subject to accounting as income when determining the base for income tax.

The practice on the issue of the impact on the tax consequences of the norm of Art. 575 of the Civil Code of the Russian Federation on the prohibition of donations between commercial organizations.

Litigation practice

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There is a practice that focuses on the application of the tax benefit established by subpara. 11 p. 1 art. 251 of the Tax Code of the Russian Federation, regardless of the civil law qualification of the transfer: letter of the Ministry of Finance of Russia dated November 9, 2006 No. 03-03-04 / 1/736; Decree of the FAS SZO dated December 23, 2005 No. A56-4986 / 2005. In the resolution dated 05.12.2005, 18.11.2005 No. KA-A40 / 11321-05, the FAS MO indicated that in order to apply the norm, sub. 11 p. 1 art. 251 of the Tax Code of the Russian Federation, it is necessary to comply with the requirements of civil law.

In our opinion, the civil law qualification of a transaction as a donation between commercial organizations entails its nullity. As a result, the issue of applying the norms of the Tax Code of the Russian Federation in this case should not be raised, since this document does not regulate civil legal relations related to the invalidity of transactions.

Litigation practice

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Judicial practice knows cases when organizations used the provision of sub. 11 p. 1 art. 251 of the Tax Code of the Russian Federation in order to transfer funds within the holding between organizations that are not directly related to each other. Having received funds from the parent organization, the company immediately transferred them to its "daughter", which did not depend on the original organization in any way. When transferring these funds directly, it would be necessary to take into account income in the form of property received free of charge in accordance with paragraph 8 of Art. 250 of the Tax Code of the Russian Federation, and the taxpayer avoided this. Thus, the purpose of these transactions was not to finance a subsidiary, but to evade income tax. A similar scheme was used by OAO NK Yukos. How it ended is known to all. As an example, we can cite the decision of the FAS MO of December 11, 2006, December 18, 2006 No. KA-A40 / 12056-06 in case No. A40-31508 / 06-116-182.

An analysis of the above methods of financing the activities of business entities allows us to draw the following conclusions:

1. the contribution of property to the authorized capital when paying for shares or shares does not entail adverse tax consequences, but big size The MC may be disadvantageous for other reasons;
2. contributions to the property of LLCs and JSCs have tax consequences in the form of accounting for such property as income when determining the income tax base, except when they are received from a parent or subsidiary organization or an individual - a majority participant or shareholder;
3. gratuitous transfer of funds must be carried out in compliance with the norms of Art. 575 of the Civil Code of the Russian Federation on the prohibition of donations between commercial organizations and is appropriate if there are signs of subp. 11 p. 1 art. 251 of the Tax Code of the Russian Federation (transfer of funds from a parent or subsidiary organization or an individual - a majority participant or shareholder).

Thus, the most preferred methods of financing companies from those discussed in this article are the contribution of property as payment for shares or shares at a price higher than their nominal value (the difference between the price of payment for a share or share and the nominal value of the latter is not subject to income tax and does not lead to inflation UK) and the transfer of funds within the holding in accordance with sub. 11 p. 1 art. 251 of the Tax Code of the Russian Federation, subject to the norm of the Civil Code of the Russian Federation on the prohibition of donations between commercial organizations.

Property, along with cash, can be transferred for the purpose of contributing to. The main point is that the property must be equivalent to cash, that is, the specialist makes expert solution about the market value transferred property.

Is it possible to contribute to the UK with non-monetary funds

According to Civil Code RF, the authorized capital of economic entities can be formed both at the expense of any property. However, significant changes made in 2014 determined new rules for the formation of authorized capital. According to them, fixed by law for various legal entities, it should be formed only at the expense of funds. Capital that is contributed in excess of the established limit may be presented in the form of non-monetary property, which is valued in monetary terms.

The property transferred as a contribution can have a wide variety of uses. For example, it can be inventory items, which are subsequently used in the implementation production process. Also, securities can be accepted as a contribution, which, with proper management of the investment portfolio, can bring tangible income.

The procedure for contributing to the authorized capital of property

If the investor has decided to contribute his property as a contribution to the authorized capital, he must go through the procedure established by law. It consists in the implementation of the following operations, both on the part of an individual and on the part of an economic entity:

1. must determine which part of the authorized capital will be formed at the expense of the contributed property, and which part - at the expense of cash. Do not forget that the monetary part must be at least the minimum amount established by law. The rules for the formation of capital, including at the expense of property, should be reflected in the constituent documentation - and the constituent agreement;
2. an individual participant wishing to transfer property for a contribution to the authorized capital must organize an independent assessment of the transferred property. This is necessary in order to determine how many monetary units the transferred deposit corresponds to.

Monetary valuation must be carried out by an independent appraiser who forms his opinion in the form of a valuation report. The evaluation by an independent expert is a mandatory item, since he will not have any bias in the course of his work, and, therefore, will guarantee the reliability of the information provided.

The choice of an independent appraiser should be carried out carefully, and at the same time, the availability of relevant documents for the possibility of carrying out this activity should be checked, otherwise the results of this assessment will be invalid. Documents confirming the right to operate include documents on special education, a certificate of inclusion in the SRO, a liability insurance policy and an agreement for an independent assessment.

The valuation report must be submitted to the registration authorities, both during the initial registration of the authorized capital, and when registering its changes upwards. It is not required to submit an assessment report to the tax authorities;

1. the property, which is transferred by the owner in the form of a contribution to the authorized capital, must have appropriate documents on ownership. An individual is required to hand over the property documents as proof of ownership, and entity should check them for authenticity;
2. the property transferred as a contribution is drawn up by the appropriate act of acceptance and transfer, which reflects all the necessary information. It includes the full name of the individual and, a description of the transferred property, its characteristics and quantity, and most importantly, the cost according to an independent assessment;
3. after the act of acceptance and transfer of property is signed by both parties, the property is placed on the balance sheet of the organization in the relevant accounts, for example, to account for fixed assets or inventory items, finished products or financial investment.

How to divide the property contributed to the authorized capital? Watch in the video below:

Transfer free of charge

If the owner transfers his property in order to contribute to the authorized capital, this does not mean at all that it is handed over free of charge, that is, it is completely alienated. When the investor gives away property, in return he acquires property rights, according to which he is entitled to a certain part of the profit received.

If the investor expresses a desire to withdraw from the founders, the previously transferred property is returned to him. In a situation where such property cannot be reimbursed, it is possible and. This is where the previous independent evaluation property, expressing a monetary equivalent - it will need to be transferred to the participant upon withdrawal from the membership.

The authorized capital is a certain amount of money invested by the founders of the enterprise at the time of its creation. This is the minimum amount of property for conducting statutory activities. Minimum size capital is established by law. The authorized capital, among other things, characterizes the property of all the founders, who, in the event of withdrawal from the ownership, may demand the return of the contributed share in cash.

During economic activity the size of the authorized capital may well change - increase or decrease. All changes that occur are recorded in founding documents without fail.

On the shares of the authorized capital

If the number of founders of the organization is more than one, then the entire authorized capital is divided into shares, determined in the form of percentages or fractions. The actual value of the participants' shares is proportional to the shares of the net asset value. So, for example, if the participant's share is 20%, and the amount of assets is 100 thousand rubles, then the value of the participant's share is 20 thousand rubles.

The decision to increase the authorized capital may be made due to the insufficient number of working capital, licensing requirements or the entry of new members also contributing. But such an increase in the authorized capital is not allowed in all cases.

The increase is made through the following funds:

• organization property,
• by contributing "old" participants of additional funds,
• by depositing funds by new members.

In the case of an increase in capital due to the contributions of all participants in the organization, a decision on this is made at the general meeting. The total amount of the contribution is recorded in the minutes, as well as the ratio of the amounts due to the increase in the shares of participants.

If the contribution is accepted from a third party wishing to become a member of the company, then the application for joining the company is considered first, as well as for making a contribution with all the detailed related information. Then a positive decision is made in the same way at the general meeting.

The fact of an increase in the authorized capital of an organization is recorded by the corresponding government agency as a change in the founding documents. Joint-stock companies are also obliged in this case to issue an additional block of shares.

About depositing property

As a rule, the authorized capital of an established enterprise is supported by a savings bank account. But, as can be seen above, it can be made with any other property, which can be fixed assets, any securities, materials, goods, etc. To implement this method, you should draw up a package of documents, which will include:

• regulation on authorized capital,
• an act on the transfer of property to the balance of the enterprise,
• property valuation protocol.

On the procedure for making a contribution to the authorized capital

First of all, the property to be contributed to the authorized capital must be appraised. This procedure is carried out by the Board of Directors (in the case of a Joint Stock Company) together with an independent appraiser involved. Moreover, he does not have the right to establish a higher price than the announced one.

In case of establishment of the Company with limited liability(LLC) the value of the minimum allowable authorized capital is ten thousand rubles.

There is no need to pay the entire amount at the time of establishment. It is enough to deposit five thousand at once, and then, during the year, the remaining funds.

If the founder is in a single person, his sole decision is sufficient when drawing up a protocol on the value of the property. If the estimated cost is more than twenty thousand rubles, then, before contributing the authorized capital with property, the latter is already assessed with the invitation of a professional appraiser.

Samples of all required documents- typical, but can be adjusted to your own needs and in consultation with lawyers.

Legal requirements

The property is transferred to the balance of the established enterprise with the drawing up of an act of transfer. It is signed by each of the founders.

A prerequisite is the inclusion in the relevant sections of the Charter and the memorandum of association (if the number of founders is more than one) of the very possibility of contributing the authorized capital with property. As well as restrictions on the types of property.

The property contribution made to the authorized capital is not a gratuitous transfer by law. The contributing party (investor) receives the rights to receive a certain part of the profits earned by the Company, as well as a certain part of the property in the event of liquidation.