Agreement on gratuitous use (loan) by a legal entity of the property of its founder (participant, shareholder)

Alexander MATITASHVILI Leading consultant of the audit department

In the practice of economic entities, there are cases of receiving contributions (in the form of property, work, services) from their founders free of charge, that is, without the obligation to pay for them.

How can such assistance be correctly reflected in accounting? How does the founder’s share in the authorized capital of the receiving party affect the taxation of the received contribution? What is the procedure for accounting for emerging differences in profit in the accounting and tax accounting of the organization that is the recipient of the deposit in accordance with the requirements of the Accounting Regulations “Accounting for Income Tax Calculations” (PBU 18/02) that came into force on January 1, 2003?

You will find answers to these and other questions in this article.

If donation is prohibited, then why is it used?

Donation

A gift agreement between commercial companies exceeding 3,000 rubles is prohibited (Clause 4, Article 575 of the Civil Code of the Russian Federation). This requirement is logical. According to Art. 50 of the Civil Code of the Russian Federation, the purpose of conducting the activities of a commercial company is to make a profit. Does this mean that the court will recognize such a transaction as void? Yes. At the very least, we do not recommend drawing up an agreement with this name.

Let's consider several important conditions:

1. The restriction described above does not apply to the case when the donor is a commercial company and the recipient is a non-profit organization or individual (see the appendix to the article for a sample agreement).
2. If we are talking about charity, then a donation agreement is used.
3. If the value of the gift is more than 3,000 rubles and one of the parties is a legal entity, a written form is required (clause 2 of Article 574 of the Civil Code of the Russian Federation).

Broadcast

Is an agreement for the gratuitous transfer of property different from a gift agreement? From the point of view of some lawyers, yes. If the organization is the founder of another legal entity, then it is vitally interested in the commercial success of the “daughter”. In the absence of explicit compensation in the form of money or counter services, implicit compensation follows from the very content of corporate relationships.

From this perspective, Art. 251 of the Tax Code of the Russian Federation, an agreement on the gratuitous transfer of property from the founder to a legal entity does not contradict civil law.

Contribution of the founder to the property of the company

The founder can transfer funds to the company as a contribution to the company’s property (not to be confused with contributing property in the form of a contribution to the authorized capital!). With this type of assistance, neither the value of the founder’s share nor the authorized capital of the company changes. There is also no need to make changes to the company’s constituent documents, which makes this method of “founding” assistance attractive.

As for taxation, if the receipt of money is formalized through a contribution to property, then the organization does not generate taxable income. Moreover, regardless of the founder’s share of participation in the authorized capital of the company. And all because property received as a contribution to the property of the company is classified as income not taken into account when taxing profits (clause 3.7, clause 1, article 251 of the Tax Code of the Russian Federation). The main thing is that the company has documents confirming the fact that it received money from the founder as a contribution to the property. For example, a decision of the founder, which states that the assets were transferred specifically for the purpose of contributing to the property.

Transfer rules

When transferring assets, it is important to comply with all legal requirements and guidelines. We recommend following the instructions on how to transfer property from one organization to another free of charge. If there is any inaccuracy, the contract is considered void, which is fraught with danger for both parties: the donor and the donee.

If the gratuitous transfer of assets is carried out in the form of a gift, enter into a gift agreement (clause 1 of Article 572 of the Civil Code of the Russian Federation). The parties have the right to conclude it both orally and in writing. Conclude a document in writing in the following cases (clauses 2, 3 of Article 574 of the Civil Code of the Russian Federation):

• the value of the gift exceeds 3,000 rubles;
• the contract contains a promise of donation in the future;
• donate real estate.

Document the transfer (including donation) of a fixed asset with an act of acceptance and transfer of non-financial asset objects.

IMPORTANT!

The conclusion of a gift agreement between unrelated legal entities is legal only if one of the parties is a non-profit organization. That is, an agreement is drawn up between an institution and another legal entity. Moreover, the institution can act both as a donor and as a recipient.

There are no restrictions for cases of receiving a gift from ordinary citizens. The gratuitous transfer of property from an individual to a legal entity is not prohibited by civil law. Please note that if an individual gives a gift worth more than 3,000 rubles, then written documentation of the gift is required.

Free loan agreement

Gratuitousness in terms of credit legal relations between legal entities can be understood as:

1. Provision by one legal entity to another of a loan without interest (or subject to subsequent forgiveness of interest).

2. Providing a loan by one legal entity to another with its subsequent complete write-off.

It is important that both types of legal relations do not include agreements that can be qualified as gift agreements during a tax audit. In this sense, the Federal Tax Service will have the least number of questions regarding the loan agreement, which was initially concluded without interest.

But there will be noticeably more questions if the interest or the debt as a whole is forgiven by the lender (through the conclusion of a separate agreement). If the parties cannot prove that the donation did not take place, then such an agreement may be declared invalid (clause 3 of information letter No. 104).

You can argue for the lack of intention to reward the counterparty when writing off a debt by reflecting in the loan (interest) forgiveness agreement the desire to forgive the debt based on considerations of benefit. It may consist in maintaining a trusting relationship with the counterparty and the opportunity to continue cooperation with him subsequently.

These are the main types of gratuitous agreements between legal entities. Despite their differences, it would be legitimate to identify a number of generalized features that characterize all the types of agreements considered.

Accounting and tax accounting

Free assistance from the founder. Postings

Accounting depends on what is being transferred, whether there are associated expenses, and what tax regime the company has. When a gratuitous transfer of property occurs between legal entities, transactions from the parent organization are collected in debit 91 of the “Other income and expenses” account.

The receiving institution credits 82, 83, or 91 accounts. Experts have different points of view on the use of these accounts. In practice, 83 or 91 counts are more often used.

Free assistance from the founder - the postings for the subsidiary company will be as follows:

The founder has the opposite information on how to transfer materials to another organization free of charge:

Income tax

In tax accounting, the parent company has neither income nor expense. Hence, companies applying PBU 18/02 have a permanent tax difference. It is drawn up in an accounting certificate and reflected by posting Dt 99 subaccount “Permanent tax liability” Kt 68 subaccount “Calculations for income tax”.

Accrued VAT is not included in expenses (Clause 16, Article 270 of the Tax Code of the Russian Federation).

For the organization receiving the property, if the founding company has a share of more than 50%, income tax does not arise (clause 11, clause 1, article 251 of the Tax Code of the Russian Federation). When applying PBU 18/02, a permanent tax asset arises.

VAT

In general, the gratuitous transfer of property rights is recognized as a sale (clause 1 of Article 39 of the Tax Code of the Russian Federation, subclause 1 of clause 1 of Article 146 of the Tax Code of the Russian Federation, for exceptions see clause 2 of Article 146 and Article 149 of the Tax Code of the Russian Federation). The company must calculate and pay VAT, issue an invoice and include it in the sales book.

VAT is not charged if:

• funds are transferred (clause 1, clause 3, article 39 of the Tax Code of the Russian Federation);
• The host organization is non-profit.

There are other cases (Article 146 of the Tax Code of the Russian Federation).

simplified tax system

The parent organization does not generate income (Articles 346.15, 249, 250 of the Tax Code of the Russian Federation). If the company takes into account expenses, then, according to Art. 346.16 of the Tax Code of the Russian Federation, the residual value of property and related expenses are not taken into account.

If a company uses the simplified tax system to give up property before the normative deadline (paragraph 14, paragraph 3, article 346.16), then expenses must be restored. The gratuitous transfer of property under the simplified tax system requires the restoration of expenses only in relation to fixed assets. According to paragraph 3 of Art. 346.16 of the Tax Code of the Russian Federation, when transferring a fixed asset before the expiration of three years from the date of recognition of the costs of its acquisition (before the expiration of 10 years, if the useful life of the fixed asset exceeds 15 years), the donor must recalculate the tax base for the entire period of use of the specified fixed asset.

To recalculate the tax base, expenses for the acquisition of fixed assets should be excluded from expenses. It is allowed to take into account the amounts of depreciation accrued in relation to this fixed asset in accordance with the provisions of Chapter. 25 Tax Code of the Russian Federation. This position is given in letters of the Ministry of Finance of Russia dated 04/11/2016 No. 03-03-06/3/20413, dated 04/14/2014 No. 03-11-06/2/16837.

The receiving party will not have any income if the parent company owns more than 50% of the authorized capital (Article 346.15 of the Tax Code of the Russian Federation, paragraph 11, paragraph 1, Article 251 of the Tax Code of the Russian Federation). Otherwise, other income will arise.

Founder's help

The legislator does not interfere with the founder, giving him the right to help the company. One type of monetary assistance is a loan, i.e. temporary financial assistance transferred on a repayable basis. Or you can finance a company or contribute property free of charge, thereby replenishing the company’s capital. In any case, the transactions performed must be reflected in the accounting records. Only after this the funds received can be spent on the needs of the company or for its intended purpose, if there are special instructions from the founder.

What are the general characteristics of a gratuitous contract?

We can talk about such signs as:

1. Absence (in some cases) in the contract of provisions providing for strict liability of the parties for failure to fulfill their obligations.

Actually, such provisions may not be included in the contract if the parties do not consider them significant (clause 1 of Article 432 of the Civil Code of the Russian Federation).

Or, on the contrary, it must be included if the provisions of the contract need to show that the party performing the duties free of charge does so in order to obtain benefits. And if the other party violates its obligations, the first will apply strict sanctions against it - as a tool to compensate for the costs incurred. Such costs may be expressed, for example, in transportation costs for the transportation of gratuitously transferred property, which the other party suddenly refused to accept.

2. Superficial regulation of securing obligations (use of collateral, prepayment, financial guarantees).

But in some cases such regulation cannot be avoided, for example, if a gratuitous loan agreement is drawn up.

It is noteworthy that a gratuitous civil law contract can be drawn up outside the jurisdiction of the Civil Code of the Russian Federation. Let's study this nuance in more detail.

Use the property free of charge

It happens that property is not given as a gift, but given to use. For example, a friendly company lets your company use its equipment for a while.

Commercial organizations can do this without restrictions on the amount. But you still shouldn’t abuse it. For example, using the property for free for decades. This is how they cover up donations, which are prohibited between commercial organizations.

What documents should I submit?

Such use is formalized under a gratuitous use agreement, or as it is also called a “loan agreement.”

An example of a contract for the free use of a thing

Document the fact of receipt and return of property with an acceptance certificate or develop your own form. The main thing is that all the required details from 402-FZ are there.

How to take into account in the simplified tax system

Free use of property is also your income, only in kind. Therefore, the simplified tax system must take into account the market value of renting similar property. An appraiser or survey of prices in your area can help with this. If you do the calculations yourself, document this in a free form.

Free rent from the founder is also taken into account in the income of the simplified tax system. Even if his share in the company is more than 50%. The exception for founders applies only to the donation of property, not to temporary use.

Income in the simplified tax system can be taken into account:

• The amount for the entire period on the day the property was received. Usually the date is indicated in the acceptance certificate. It is important that the contract be concluded for a certain period.
• In installments monthly or at the end of each reporting period. The term of the contract in such cases, on the contrary, is unknown.

The costs of obtaining, maintaining and using property can be taken into account in the costs of the simplified tax system if the agreement stipulates that they are assigned specifically to the borrower. Well, make sure that they are included in the list of expenses. 346.16 Tax Code of the Russian Federation. For example, the cost of car repairs.

Contractual agreement for the gratuitous transfer of property into municipal ownership

The transfer of any property to municipal ownership can be made not only from state property, but also by an individual or legal entity. There is no need for the consent of the municipal authority when carrying out such a transaction.
The procedure is carried out in accordance with the provisions of the current Russian legislation. When transferring real estate or other property for the use of a specific municipal organization free of charge, you must use the appropriate contract form. This document must contain all the same mandatory information as the standard agreement.

Contractual agreement for the transfer of property for indefinite free use

This agreement is regulated by the Russian Civil Code, Article No. 689. This document states that the party to the transaction who received property assets as a gift has the right to use them indefinitely. It is possible to draw up an agreement not only in the proposed form, but also in any form. In this case, the main condition is the signatures of the participants, as well as, if they wish, notarization.

The Civil Code (Article No. 699) provides for situations in which parties to a transaction may refuse a contractual agreement. The party that has expressed a desire to terminate the transaction is obliged to inform about this intention in advance (at least a month in advance).

Important! When drafting any contract, especially one involving real estate, federal law requires a formal process. That is, any agreements must be drawn up in writing and certified by a notary in order for the document to have legal force. This is a guarantee of protecting the interests of both parties to the agreement.