Debt forgiveness in order to increase net assets. Increasing the net assets of a joint-stock company - new opportunities or old problems? What about bills

Forgiveness of debt by the founder is not subject to income tax and only if it goes to increase net assets?

Under what conditions the forgiveness of the debt by the founder is not subject to income tax, the article will explain.

Question: Financial assistance to increase net assets in income is not taken into account. This rule also applies to those situations when, at the request of the participants, founders or shareholders, the company's debt to them is reduced or terminated. For example, if a company has not fulfilled its obligations to a participant under a loan agreement or payment for goods, it can forgive the debt and use it to increase net assets. Thus, he terminates the obligations of the company under the agreement (letters of the Ministry of Finance of Russia dated July 16, 2015 No. 03-03-06 / 2 / 40933 and the Federal Tax Service of Russia dated July 20, 2011 No. ED-4-3 / 11698). When determining income on a simplified tax system, the same receipts are not taken into account as when calculating income tax. This means that financial assistance received from a dependent founder or someone who owns more than 50 percent in the authorized capital of the recipient is also not taken into account when calculating the single tax. As, however, and assistance to increase net assets. "How to issue and take into account assistance from the founder (participant, shareholder): loans, loans, donations, deposits." Or from a founder owning more than 50% - anyway? what are the entries in each case? Dt76 Kt 91 - just forgiveness and Dt 76 Kt 83- net assets?

Answer: 1. Yes, only if it goes to increase net assets, as in subparagraph 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation we are talking on the transfer of property, and with the forgiveness of a debt, there is no transfer of property.

Formally, of course, net assets increase even without any decisions and protocols, but the controlling departments require them to be registered.

2. Debt forgiveness posting Debit 76 Credit 91.

Many are mistaken that if we are talking about an increase in net assets, then account 83 should be applied. There is no such rule in the legislation.

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

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

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

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

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

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

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

12.77451 (6,9,24)

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

According to the Ministry of Finance of Russia, the amount of the forgiven loan should not be taken into account in income. However, the claims of tax inspectors are not excluded.

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

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

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

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

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

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

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

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

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

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

If the share contributed by the founder is 50 percent or less, include the amount of the written-off debt on the loan as income. Do the same if the property transferred to the organization as a result of debt forgiveness was transferred to third parties during the year. This follows from paragraph 1 articles 346.15 and paragraph 8 article 250 of the Tax Code of the Russian Federation. Recognize income at the date the debt forgiveness agreement is signed ( paragraph 1 of Art. 346.15, Tax Code of the Russian Federation).

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

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

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

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

If the share of the founder is more than 50 percent, the issue of including the amount of written-off debt in income ambiguous. Insofar as controversial situation based on the provisions subparagraph 11 paragraph 1 of Article 251 of the Tax Code of the Russian Federation, the conclusions contained in it can be guided not only by payers of income tax, but also by organizations that apply simplified taxation ( sub. 1 p. 1.1 art. 346.15 of the Tax Code of the Russian Federation).

Answered by Alexander Sorokin,

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

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

Many people think that debt forgiveness is a very difficult and unprofitable operation. However, this is misleading. Debt forgiveness is not only convenient when you need to redistribute money within the holding, but in the article we will tell you how to forgive debt: the two most simple ones. With which companies belonging to the same group use in practice.

Method number 1. Companies draw up a loan agreement first, and then debt forgiveness

What is the benefit: You can redistribute money between companies, while the debtor will not have income if the debt is forgiven by the founder with a 50 percent share.

Loan agreements are often used to distribute money between companies in the same group. It is advantageous to use this method when the lender owns more than 50 percent of the debtor's authorized capital.

But it is risky to issue interest-free loans to subsidiaries. In his opinion, when issuing an interest-free loan, he should reflect income in the form of interest that he could receive when issuing an interest-bearing loan (letters dated October 5, 2012 No. 03-01-18 / 7-137 and dated February 24, 2012 No. 03- 01-18/1-15).

Therefore, it is safer to indicate the rate in the loan agreement. In addition, it is beneficial for the subsidiary: the interest on loans is reduced.

Subsequently, the parent company forgives the debt. To do this, it is enough to sign the appropriate agreement (see the sample below).

Subsidiary company. If the participant's share in the authorized capital of the company is more than 50 percent, then the amount of the forgiven loan does not need to be included in taxable income. In this case, the money will be considered property received free of charge.

That is, you can apply the rules of subparagraph 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation. The Ministry of Finance of Russia also agrees with this approach (letter No. 03-03-06/1/40367 dated September 30, 2013).

At the same time, it is important that the condition on the size of the share of the founder is also fulfilled at the time of the loan (letter of the Ministry of Finance of Russia dated January 31, 2011 No. 03-03-06 / 1/45).

Please note: the tax authorities insist that the amount of interest on debt forgiveness must be included in the non-operating income of the borrower (clause 18, article 250 of the Tax Code of the Russian Federation). After all, the company received from the founder exactly the amount that corresponds to the body of the loan. And the organization did not receive interest as such from the founder, but accrued and included in expenses. That is, there was no free transfer of property. This means that the exemption cannot be applied.

Moreover, arguing with inspectors is risky - judges of the Supreme Arbitration Court of the Russian Federation may be on their side (determination of March 21, 2014 No. VAS-2494/14). But even if you reflect the accrued interest in income, the company does not lose anything. After all, she previously included these amounts in expenses.

Founder. The forgiven loan amount cannot be included in tax expenses. According to the Ministry of Finance of Russia, such costs are economically unjustified. That is, they do not meet the requirements of paragraph 1 of Article 252 of the Tax Code of the Russian Federation (letter dated April 4, 2012 No. 03-03-06 / 2/34). By the way, it will not be possible to take into account in the composition of non-operating expenses and the amount of interest on the loan written off in connection with the termination of the obligation (letter of the Ministry of Finance of Russia dated December 31, 2008 No. 03-03-06 / 1/728).

Ways to forgive debt can be such as the following.

Method number 2. The company increases its "daughter"

What is the benefit: The company may not pay income tax if the founder with a share in the authorized capital of 50 percent or less has forgiven the debt.

The method is beneficial in two cases. First, when the share of the founder in the subsidiary is less than 50 percent. And secondly, when the company owes such a founder payment for goods, works or services.

The Ministry of Finance of Russia has long believed that the amount of forgiven debt for payment of purchased goods (works, services) is included in non-operating income (letter of the Ministry of Finance of Russia dated February 7, 2011 No. 03-03-06 / 1/76). The inspectors on the ground say so. The organization includes the cost of goods (works, services) in expenses without paying them. If, in addition, the written-off amount of debt is not taken into account in income, the company will reduce income tax by the same amount.

In this case, it is safer to direct the amount of debt to increase net assets. For example, by forming additional capital or other funds (subclause 3.4, clause 1, article 251 of the Tax Code of the Russian Federation). That is, together with the agreement on debt forgiveness, you need the minutes of the meeting of the founders. The document must indicate that the property or rights to it are transferred to the organization specifically to increase net assets (see sample below).

Subsidiary company. When offsetting debt against an increase in net assets, the subsidiary will not pay income tax. Moreover, the size of the share of the founder in the authorized capital of the company does not matter.

Another plus is that it is not necessary to fulfill the condition of preserving property for a year from the date of its receipt (letters of the Ministry of Finance of Russia dated April 20, 2011 No. 03-03-06 / 1/257, dated April 18, 2011 No. 03-03-06 /1/243, dated November 22, 2012 No. ED-4-3/19653).

The amount of the outstanding loan can also be used to increase net assets, thereby terminating the company's obligations under the agreement (letter of the Federal Tax Service of Russia dated July 20, 2011 No. ED-4-3 / 11698).

The forgiven interest on the loan, which the company has taken into account in expenses, can also be used to increase net assets. However, in this case, the tax authorities will most likely require that the amount of interest be included in taxable income on the basis of paragraph 18 of Article 250 of the Tax Code of the Russian Federation. After all, in fact, these funds are not transferred to the subsidiary. In particular, such conclusions were made in the letter of the Federal Tax Service of Russia dated May 2, 2012 No. ED-3-3 / [email protected]

Founder. For a creditor, the amount of a forgiven debt should not be taken into account in tax expenses (clause 1, article 252, clause 16, article 270 of the Tax Code of the Russian Federation). Such clarifications were given more than once by the Ministry of Finance of Russia (letters dated April 4, 2012 No. 03-03-06 / 2/34, dated March 18, 2011 No. 03-03-06 / 1/147).

How to reflect in the accounting of the borrowing organization (LLC) the fact of forgiveness by the former participant - individual(lender) of debt under an interest-free loan agreement in order to increase the net assets of the company?

The participant provided LLC with an interest-free loan in the amount of 200,000 rubles. Borrowed funds were received on the current account and used to pay current expenses. Subsequently, a notice of debt forgiveness was received from the lender in order to increase the net assets of the LLC. At the time the LLC receives the notification, the lender is no longer a member of the LLC. The organization uses the accrual method for income tax purposes.

Civil law relations

An interest-free loan is provided to an organization on the basis of a loan agreement concluded in writing, with a direct indication in the agreement of the condition that the loan is interest-free. The loan agreement is considered concluded from the moment of transfer by the lender Money to the account of the borrowing organization (clause 1, article 807, clauses 1, 3, article 809 of the Civil Code of the Russian Federation).

An obligation under a contract may also be terminated by debt forgiveness. Debt forgiveness is the release by the creditor of the debtor from his obligations, if this does not violate the rights of other persons in relation to the property of the creditor (clause 1, article 407, clause 1, article 415 of the Civil Code of the Russian Federation).

The obligation is considered terminated from the moment the debtor receives the creditor's notification of debt forgiveness, if the debtor does not send objections to the creditor against debt forgiveness within a reasonable time (clause 2, article 415 of the Civil Code of the Russian Federation).

It should be noted that the forgiveness by the lender of the debt to repay the loan, executed by the appropriate notification of the debtor, cannot be considered as a donation, since (unlike a donation) it is an expression of the will of one person (the lender), that is, a unilateral transaction (paragraph 2 of article 154 , Article 155 of the Civil Code of the Russian Federation, Determination of the Supreme Arbitration Court of the Russian Federation of February 8, 2010 N VAC-384/10 in case N A65-5037 / 2009-SG-3). Forgiveness of a debt can be recognized as a donation only if the court establishes the intention of the creditor to release the debtor from the obligation to pay the debt as a gift (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of July 15, 2010 N 2833/10 in case N A82-7247 / 2008-99, paragraph 3 information letter Presidium of the Supreme Arbitration Court of the Russian Federation of December 21, 2005 N 104 "Review of the practice of application by arbitration courts of the rules Civil Code RF on some grounds for termination of obligations"). For more information on debt forgiveness, see the Deal Guide.

In the situation under consideration, the lender forgives the debt under the loan agreement with the condition that the amount of the forgiven debt is used to increase the net assets of the LLC.

Accounting

The receipt by an organization of borrowed funds under a loan agreement does not lead to an increase in the capital of the organization, that is, it is not recognized as income in relation to clause 2 of the Regulation on accounting"Income of the organization" PBU 9/99, approved by Order of the Ministry of Finance of Russia dated 06.05.1999 N 32n.

The amount of the loan received is reflected as accounts payable (clause 2 of the Accounting Regulation "Accounting for expenses on loans and credits" (PBU 15/2008), approved by Order of the Ministry of Finance of Russia dated 06.10.2008 N 107n).

When a debt is forgiven under a loan agreement, the amount of the terminated obligation increases the capital of the LLC and is recognized as other income at the time the notice of debt forgiveness is received. This follows from paragraphs 2, 7, 10.6, 16 PBU 9/99.

Accounting entries for the transactions in question are reflected in the accounting accounts in the manner established by the Instructions for the Application of the Chart of Accounts for Accounting for the Financial and Economic Activities of Organizations, approved by Order of the Ministry of Finance of Russia dated October 31, 2000 N 94n, and are given in the posting table.

Corporate income tax

For the purposes of taxation of profits, funds received under a loan agreement are not included in the organization's income (clause 10 clause 1 article 251 of the Tax Code of the Russian Federation).

In general, according to official clarifications, the amounts of forgiven debts on loans are considered as funds received and left free of charge at the disposal of the borrower, which are recognized as non-operating income on the basis of paragraph 2 of Art. 248, paragraph 8, part 2, art. 250 of the Tax Code of the Russian Federation. This point of view is confirmed, in particular, by the Letters of the Ministry of Finance of Russia of October 11, 2011 N 03-03-06/1/652, of January 31, 2011 N 03-03-06/1/45.

According to paragraphs. 3.4 p. 1 art. 251 of the Tax Code of the Russian Federation, the amount of increase in net assets is not recognized as income economic society with the simultaneous termination of the obligations of this company to the participants, if such an increase in net assets was the result of the will of the participant of the company. Explanations on the application of this norm in terms of the principal amount of the debt (loan amount) are given in the Letters of the Ministry of Finance of Russia dated 06/25/2014 N 03-03-06 / 1/30267, the Federal Tax Service of Russia dated 05/02/2012 N ED-3-3 / [email protected]

Since in this case, at the time of the conclusion of the debt forgiveness agreement, the lender is no longer a member of the LLC, we believe that the norm of paragraphs. 3.4 p. 1 art. 251 of the Tax Code of the Russian Federation cannot be applied when forgiving a debt on a loan. A similar point of view on the application of the norm of paragraphs. 3.4 p. 1 art. 251 of the Tax Code of the Russian Federation when a debt is forgiven by a person who is no longer a member of the company applying the USN, is expressed in the Letter of the Ministry of Finance of Russia dated.

Thus, the amount of the forgiven loan in this case is subject to inclusion in non-operating income.

	Credit	Amount, rub.	primary document
On the date of the loan
Received a loan from a participant			Loan agreement, Bank statement on current account
As of the date of receipt of the notice of debt forgiveness
The amount of forgiven debt under the loan agreement is recognized as other income			Lender notice of debt forgiveness

L.V. Guzheleva

Consulting and Analytical Center for Accounting and Taxation

The founder of the company has the right to issue a loan to it, and subsequently forgive him. How is this legal procedure carried out? How is it reflected in accounting and tax accounting?

How does the founder forgive the debt of his company?

Forgiveness of debt by the founder under a loan agreement with a business company belonging to him is carried out in accordance with the provisions of Article 415 of the Civil Code of Russia. The norms contained in this article allow the founder of the company to forgive her debt to him, if after that the rights of other persons are not violated. For example, those that are, in turn, the creditors of the founder. Given that the possible collection of debt can be carried out at the expense of his assets (one of which is a loan to the company, which he is going to forgive).

Legally, debt forgiveness in the legal relations under consideration can be formalized in several ways:

By concluding a donation agreement (the parties will, therefore, be the founder of the company and the company itself). The subject of the contract will be the amount that until that moment was transferred to the economic entity in the prescribed manner. The considered option of formalizing the forgiveness of the company's debt to the founder is possible only if the founder is an individual. If he has the status of a legal entity, then a donation agreement with another legal entity - a borrowing company, cannot be concluded by law.
Through the conclusion of an additional agreement (with the participation of the same parties). The subject of this agreement is the lender's waiver of the right to demand (which is established by the original contract) funds from the borrower. From the point of view of the law, this legal relationship does not cancel the debt, but allows the company not to pay it without any legal consequences.
Through the conclusion of an agreement, according to which, in fact, debt forgiveness is carried out. Its subject in this case may be the release of the company from the obligations that are established by the loan agreement in force at the time of signing the new agreement. At the same time, the text of the agreement may contain a reference to the provisions of Article 415 of the Civil Code of the Russian Federation. After signing this agreement, legal relations between the founder of the company and the company itself, the subject of which is the debt of one party to the other, are terminated.

It will be useful to study the specifics of tax and accounting for the amount of forgiven debt by a company - an economic entity that is obliged to pay taxes and implement accounting policies.

tax accounting

The way in which the tax accounting of the debt that the founder of the company has forgiven it is carried out depends on what share in the ownership of the business entity belongs to the creditor. The following options are available here:

The creditor owns no more than 50% of authorized capital firms. In this case, the written-off debt in terms of tax accounting is included in the company's revenue. In fact, the debt acquires the status of property received by the company free of charge. Thus, it is assumed that the amount of debt will be included in the taxable base of the organization.
The creditor owns more than 50% of the authorized capital of the company. In this case, the amount corresponding to the forgiven loan cannot be classified as the company's income (including in the form of property received by the business entity free of charge). This means that there is no tax on the amount owed. This norm is established by Article 251 of the Tax Code of the Russian Federation. The largest departments, such as the Ministry of Finance of Russia and the Federal Tax Service, in their explanations confirm the legitimacy of its application in legal relations related to debt forgiveness by the founder.

Important nuance: regardless of the size of the share of the founder in the authorized capital of the organization, interest under the loan agreement to the company (if any) is included in the taxable base of the business entity in any case, if the debt is forgiven.

Accounting

The accountant of a company whose founder has forgiven a debt must, in order to reflect debt forgiveness in accounting, make the following entries in the registers:

CREDIT 91 (sub-account "Other income");
DEBIT 66 (if the loan is short-term) or DEBIT 67 (if the loan is long-term).

Above, we considered a situation in which the amount of debt forgiven by the founder does not apply to income that is subject to taxation. Namely, if the creditor owns more than 50% of the authorized capital of the company.

If the taxable income of the organization does not arise, then the above entry is supplemented with one more:

DEBIT 68 (sub-account "Tax calculations");
CREDIT 99.

This correspondence forms a new asset of the firm - represented by unpaid tax on the amount that the creditor has forgiven his firm. In this case, the amount reflected in the first posting will correspond to the amount of debt. The one that appears in the second entry will correspond, in turn, to the amount of tax that is nominally charged on the loan. Under the general taxation system, this amount will correspond to 20% of the debt.

If the founder owns less than 50% of the authorized capital of the company, then the amount of debt is reflected only in the first entry. At the same time, it does not generate legal consequences for an economic entity in the form of obligations to calculate or pay taxes.

If we consider the accounting entries from the very beginning of the legal relationship that arose upon the conclusion of a loan agreement between the founder and his company, then they can be represented as the following sequence.

1. As soon as the contract is concluded, and the loan amount is credited to the company's accounts, then its accountant applies the posting:

DEBIT 51;
CREDIT 66.

The posting amount corresponds to the loan amount. In this case, the following can be used as primary documents:

actually, the loan agreement;
bank statement confirming the crediting of borrowed funds to the company's account.

2. After the conclusion of the contract on writing off the debt in the accounting registers, the entries discussed above are recorded.

In this case, the following can be used as primary documents:

an agreement the subject of which is debt forgiveness;
reference-calculation generated by the accounting department.

Q&A Summary

How to legally issue debt relief by the founder?

The best option is to conclude an agreement with reference to Article 415 of the Civil Code of the Russian Federation, according to which the company is released from obligations, which are established by a previously concluded loan agreement.

Does a firm's forgiven debt increase its tax base?

If the creditor owns no more than 50% of the authorized capital of the organization - increases. If more than 50% - does not increase. At the same time, interest, if provided for by the loan agreement, in any case increases the taxable base.

How is the forgiven debt of the company reflected in accounting?

If the owner owns more than 50% of the authorized capital, when debt is forgiven, entries reflecting the fact of formation tax asset. If the creditor owns a smaller share, then only that entry is applied, which reflects the fact of the formation of other income of the company from the point of view of accounting (these incomes in practice will not be taxed).

Issue dated March 18, 2016

Account correspondence schemes

A selection based on the materials of the information bank "Correspondence of accounts" of the ConsultantPlus system

Situation:

How to reflect in the accounting of a borrowing organization (LLC) the fact that a former participant - an individual (lender) forgives a debt under an interest-free loan agreement in order to increase the company's net assets?

Account correspondence:

Civil law relations

An interest-free loan is provided to an organization on the basis of a loan agreement concluded in writing, with a direct indication in the agreement of the condition that the loan is interest-free. The loan agreement is considered concluded from the moment the lender transfers funds to the account of the borrowing organization (clause 1 of article 807, clauses 1, 3 of article 809 of the Civil Code of the Russian Federation).

Note that the forgiveness by the lender of the debt to repay the loan, executed by the appropriate notification of the debtor, cannot be considered as a donation, since (unlike a donation) it is an expression of the will of one person (the lender), that is, a unilateral transaction (paragraph 2 of article 154 , Article 155 of the Civil Code of the Russian Federation, Determination of the Supreme Arbitration Court of the Russian Federation dated February 8, 2010 N VAC-384/10 in case N A65-5037/2009-SG-3). Forgiveness of a debt can be recognized as a donation only if the court establishes the intention of the creditor to release the debtor from the obligation to pay the debt as a gift (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of July 15, 2010 N 2833/10 in case N A82-7247 / 2008-99, paragraph 3 Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of December 21, 2005 N 104 "Review of the practice of application by arbitration courts of the norms of the Civil Code of the Russian Federation on certain grounds for termination of obligations"). For more information on debt forgiveness, see the Deal Guide.

In the situation under consideration, the lender forgives the debt under the loan agreement with the condition that the amount of the forgiven debt is used to increase the net assets of the LLC.

Accounting

The receipt by an organization of borrowed funds under a loan agreement does not lead to an increase in the capital of the organization, that is, it is not recognized as income in relation to clause 2 of the Accounting Regulation "Income of the organization" PBU 9/99, approved by Order of the Ministry of Finance of Russia dated 06.05.1999 N 32n.

Corporate income tax

According to paragraphs. 3.4 p. 1 art. 251 of the Tax Code of the Russian Federation, the amounts of an increase in the net assets of a business entity with the simultaneous termination of the obligation of this company to the participants are not recognized as income, if such an increase in net assets was the result of the will of the participant in the company. Explanations on the application of this norm in terms of the principal amount of the debt (loan amount) are given in the Letters of the Ministry of Finance of Russia dated 06/25/2014 N 03-03-06 / 1/30267, the Federal Tax Service of Russia dated 05/02/2012 N ED-3-3 / [email protected]

Since in this case, at the time of the conclusion of the debt forgiveness agreement, the lender is no longer a member of the LLC, we believe that the norm of paragraphs. 3.4 p. 1 art. 251 of the Tax Code of the Russian Federation cannot be applied when forgiving a debt on a loan. A similar point of view on the application of the norm of paragraphs. 3.4 p. 1 art. 251 of the Tax Code of the Russian Federation when a debt is forgiven by a person who is no longer a member of the company using the simplified tax system, is expressed in the Letter of the Ministry of Finance of Russia dated February 24, 2015 N 03-11-06 / 2/9035.

Thus, the amount of the forgiven loan in this case is subject to inclusion in non-operating income.

L.V. Guzheleva
Consulting and analytical accounting center and taxation