Debt forgiveness by the founder is not subject to income tax and tax only if it goes towards an increase net assets?

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

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

Answer: 1. Yes, only if it goes to increase net assets, as in subparagraph 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation we're talking about about the transfer of property, but when the debt is forgiven, there is no transfer of property.

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

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

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

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

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

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

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

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

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

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

12.77451 (6,9,24)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Alexander Sorokin answers,

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

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

Issue dated March 18, 2016

Account correspondence schemes

Selection based on materials from the information bank "Correspondence of Accounts" of the ConsultantPlus system

Situation:

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

The participant provided the LLC with an interest-free loan in the amount of RUB 200,000. Borrowed funds credited to the bank account and sent for payment 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 notice, the lender is no longer a member of the LLC. The organization uses the accrual method for profit tax purposes.

Account correspondence:

Civil relations

The provision of an interest-free loan to an organization is made 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).

An obligation under a contract may be terminated, including by forgiveness of the debt. 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 creditor’s property (clause 1 of Article 407, clause 1 of 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 the creditor objections to debt forgiveness within a reasonable time (clause 2 of Article 415 of the Civil Code of the Russian Federation).

Let us note that forgiveness by the lender of the debt to repay the loan, formalized by the corresponding 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 (clause 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 02/08/2010 No. VAS-384/10 in case No. A65-5037/2009-SG-3). Forgiveness of a debt can be recognized as a gift only if the court establishes the creditor’s intention 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 dated 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 dated December 21, 2005 N 104 “Review of the practice of applying arbitration courts norms of the Civil Code of the Russian Federation on some grounds for termination of obligations"). For more information on debt forgiveness, see the Transaction 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 organization’s capital, that is, it is not recognized as income in relation to clause 2 of the Accounting Regulations “Income of the Organization” PBU 9/99, approved by Order of the Ministry of Finance of Russia dated May 6, 1999 N 32n.

The amount of the loan received is reflected as accounts payable (clause 2 of the Accounting Regulations “Accounting for expenses on loans and credits” (PBU 15/2008), approved by Order of the Ministry of Finance of Russia dated October 6, 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 of receipt of notification of debt forgiveness. This follows from clauses 2, 7, 10.6, 16 PBU 9/99.

Accounting entries for the transactions in question are reflected in the accounts accounting in the manner established by the Instructions for the application of the Chart of Accounts for accounting of financial and economic activities of organizations, approved by Order of the Ministry of Finance of Russia dated October 31, 2000 N 94n, and are shown in the table of transactions.

Corporate income tax

For profit tax purposes, 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 explanations, the amounts of forgiven loan debts are considered as funds received and free of charge remaining at the disposal of the borrower, which are recognized as non-operating income on the basis of clause 2 of Art. 248, paragraph 8, part 2, art. 250 Tax Code of the Russian Federation. This point of view is confirmed, in particular, by Letters of the Ministry of Finance of Russia dated October 11, 2011 N 03-03-06/1/652, dated January 31, 2011 N 03-03-06/1/45.

According to paragraphs. 3.4 clause 1 art. 251 of the Tax Code of the Russian Federation are not recognized as income in the amount of an increase in the net assets of a business company with the simultaneous termination of the obligation of this company to the participants, if such an increase in net assets was a consequence of the will of the company participant. Explanations on the application of this norm in terms of the principal amount of the debt (loan amount) are given in Letters of the Ministry of Finance of Russia dated June 25, 2014 N 03-03-06/1/30267, Federal Tax Service of Russia dated May 2, 2012 N ED-3-3/1581@.

Since in this case, at the time of concluding the debt forgiveness agreement, the lender is no longer a participant in the LLC, we believe that the norm in paragraphs. 3.4 clause 1 art. 251 of the Tax Code of the Russian Federation cannot be applied when forgiving a loan debt. A similar point of view on the application of the norm of paragraphs. 3.4 clause 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 simplified tax system, it was expressed in 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

This means that the subsidiary needs help. The options here are simple:

• <если> you want to calmly figure it out, what caused the losses, and only then formulate a strategy to help your “daughter”, then this is your full right. You can spend in the spring (no later than April 30) annual meeting, approve the reporting of the subsidiary and decide on the contribution of funds to cover the loss V clause 1 art. 91, subp. 3 p. 3 art. 91 Civil Code of the Russian Federation; subp. 6 paragraph 2 art. 33, art. 34 Federal Law dated 02/08/98 No. 14-FZ. But then its annual statements will still show negative net assets;
• <если>Are you aware of the situation in the “daughter”, you consider its losses objective and are ready to compensate them, then it’s better not to delay with help. We need to hurry up and formalize everything before the end of the year, so that the indicators in the balance sheet and the report on changes in the subsidiary’s capital for the year already take into account the assistance provided to it.

It is this last situation that we will consider.

Choosing a way to provide assistance

If you have not repaid your debt to your subsidiary for contributions to its authorized capital, then this is where you should start. Such a creditor is not included in the accounted assets of the subsidiary T clause 3 of the Procedure for assessing the value of net assets... approved. By Order of the Ministry of Finance of Russia No. 10n, FCSM of the Russian Federation No. 03-6/pz dated January 29, 2003; Letter of the Ministry of Finance of Russia dated December 7, 2009 No. 03-03-06/1/791. This means that if you pay off your debts on contributions, the net assets of the subsidiary will increase by a similar amount.

Regardless of the tax regime of your company and its subsidiary (general or simplified), cash contributions to its authorized capital:

• will not be taxed by your company. At the same time, you will be able to take these contributions into account as an expense (or a value that reduces income) during the further sale of shares in the capital of the subsidiary, withdrawal from its capital or its liquidation. And subp. 4 paragraphs 1 art. 251, sub. 2.1 clause 1 art. 268 Tax Code of the Russian Federation. If your company applies the simplified procedure, then you can take into account the costs of contributions to the capital of a subsidiary only if you were initially the founder of the subsidiary and did not buy a stake in it from third parties. ts subp. 1 clause 1.1 art. 346.15, subd. 4 paragraphs 1 art. 251 Tax Code of the Russian Federation; Letter of the Ministry of Finance of Russia dated December 6, 2005 No. 03-11-04/2/145;
• will not be subject to taxes for the “daughter” » clause 1 art. 277, sub. 3 p. 1 art. 251.

If there are no debts on contributions, then perhaps, on the contrary, the subsidiary itself owes something to your company? If you forgive her debt, her loss will be reduced and her net assets will increase. Moreover, when the debt is forgiven, neither the subsidiary nor your company will have to pay taxes (we will explain why further )subp. 3.4 clause 1 art. 251 Tax Code of the Russian Federation. The only negative is that the net assets of your parent company will decrease by the amount of the forgiven debt.

Well, if there were no such debts, then you will have to provide help in a different way. But first, you need to choose the “content” of such assistance - what exactly you can quickly and safely transfer to your “daughter”.

Let us immediately note that regardless of what you transfer (money, other property, property rights), these amounts will not be taken into account in the daughter’s taxable income tax (tax under the simplified tax system). T subp. 3.4 clause 1 art. 251, sub. 1 clause 1.1 art. 346.15 Tax Code of the Russian Federation. This benefit was introduced this year. at clause 2 art. 4 of the Federal Law of December 28, 2010 No. 409-FZ- just for cases when participants provide assistance to the “daughter” in order to increase their net assets. In this case, your share of participation in the capital of the subsidiary does not play any role - that is, it may be less than 50% of the authorized capital.

The main thing is to write in the decision authorizing such assistance that the funds/property/rights are transferred specifically "in order to increase the company's net assets so and so..." And the entire operation can be carried out very quickly - unlike, for example, additional contributions to the authorized capital, such assistance does not require the consent of other owners. In addition, there is no need independent assessment transferred assets.

We transfer assets to our daughter

What do you have in your account?

Regardless of what exactly you transfer to your “daughter” (money, property, rights):

There is also a serious nuance regarding VAT if you transfer non-monetary assets to your subsidiary:

• <если> your company is not a VAT payer(for example, applies a simplification), then, of course, you will not have any problems with this tax;
• <если> your company is a VAT payer, then you have two options for the development of events.

OPTION 1. You charge VAT on the book value of the donated property (if its sale, of course, is subject to VAT )subp. 1 clause 1 art. 146 Tax Code of the Russian Federation. The “daughter” will not be able to deduct this VAT, since you do not present it to her for payment e clause 2 art. 171, paragraph 1, art. 172 Tax Code of the Russian Federation; Letter of the Ministry of Finance of Russia dated April 25, 2011 No. 03-07-14/39.

OPTION 2. During an audit, you are ready to prove to the tax authorities (and, most likely, to sue) that, as in the case of contributions to property, such a transfer of property is of an investment nature and is not a sale (after all, the net assets of the subsidiary will increase, and therefore actual value your share )subp. 4 p. 3 art. 39 Tax Code of the Russian Federation. But then the tax authorities will force you to restore the input VAT on the transferred property (if you accepted it for deduction )subp. 1, 2 p. 3 art. 170 Tax Code of the Russian Federation. Thus, it may turn out that you do not gain anything from this dispute, and it will be easier to calculate and pay the tax.

Thus, the transfer of money is the easiest to organize and take into account, but other options for assistance need to be carefully calculated.

What does the “daughter” account for?

The subsidiary’s accounting and tax accounting also has significant nuances:

• in accounting, the subsidiary takes into account received assets (inventory, fixed assets, intangible assets, financial investments) according to market value and takes their value into account as other income V clause 23 of the Accounting Regulations... approved. By Order of the Ministry of Finance of Russia dated July 29, 1998 No. 34n; clause 10.3 PBU 9/99 “Income of the organization”, approved. By Order of the Ministry of Finance of Russia dated 05/06/99 No. 32n; clause 9 PBU 5/01 “Accounting for inventories”, approved. By Order of the Ministry of Finance of Russia dated 06/09/2001 No. 44n; clause 10 PBU 6/01 “Accounting for fixed assets”, approved. By Order of the Ministry of Finance of Russia dated March 30, 2001 No. 26n; clause 13 PBU 14/2007 “Accounting for intangible assets”, approved. By Order of the Ministry of Finance of Russia dated December 27, 2007 No. 153n; clause 13 PBU 19/02 “Accounting for financial investments”, approved. By Order of the Ministry of Finance of Russia dated December 10, 2002 No. 126n. Receipt of property is reflected in the debit of the relevant asset accounts and the credit of account 91 “Other income and expenses” » Instructions for using the Chart of Accounts.

As an option, the value of the assets of the subsidiary can be taken into account as amounts that increase additional capital (that is, attributed to account 83 “Additional capital” and not taken into account as part of income). After all, such assistance has a similar nature to contributions to the property of a subsidiary, and the Ministry of Finance requires such contributions to be taken into account precisely as part of additional capital A clause 2 PBU 9/99; Letter of the Ministry of Finance of Russia dated January 29, 2008 No. 07-05-06/18. But with any accounting option, the subsidiary’s net assets will increase after the property is capitalized;

• In tax accounting, the value of received assets is not taken into account in the subsidiary’s income. Let us remind you once again that this exemption applies to any type of property and property rights. V subp. 3.4 clause 1 art. 251 Tax Code of the Russian Federation. At the same time, the subsidiary will not be able to take into account the cost of the received property in future expenses, because it did not incur actual expenses for its acquisition A clause 1 art. 252 Tax Code of the Russian Federation; Letter of the Ministry of Finance of Russia dated 02/07/2011 No. 03-03-06/1/80. The exception is that your company transferred fixed assets to her free of charge. Such fixed assets "subsidiary" has the right to value in tax accounting at market value and depreciated b clause 1 art. 257 Tax Code of the Russian Federation. If the subsidiary uses a simplified system, then it will not have expenses for purchasing the OS (no payment )clause 2 art. 346.17 Tax Code of the Russian Federation.

We take away the creditor from the “daughter”

Let’s say you are ready to help your “daughter,” but right now your company does not have money or suitable property to transfer. In this case, there is a wonderful way to increase the net assets of your subsidiary in one day without immediate costs on your part. You need your “daughter” to share the creditor with you. More precisely:

As a result of this transfer of debt, the subsidiary’s accounts payable will be reduced. This means that her net assets will increase by the same amount. In accounting, the amount of forgiven debt is included in its other income s pp. 7, 10.6, 16 PBU 9/99, and in the tax (regardless of the tax regime of the “subsidiary”) is not taken into account at all - after all, the debt is forgiven in order to increase the company’s net assets And subp. 3.4 clause 1 art. 251 Tax Code of the Russian Federation.

The problem may await a “daughter”, as they say, on the other hand - “consumable”. If it applies the “income-expenditure” simplification and transfers the debt to pay for, say, goods, to the parent company, then the tax authorities may ultimately consider such goods unpaid And clause 1 art. 346.17 Tax Code of the Russian Federation- after all, the “daughter” will never pay anyone any money. Simplificationists have already encountered such claims (see more in,). So if a “daughter” uses a simplified procedure, then it is better to accept a “non-expendable” debt from it, for example, for a loan or credit.

For your company, the tax and accounting consequences will be the same as when transferring “real” money to a “daughter” - other expenses in accounting and its absence in tax accounting.

Example. Accounting for the transfer of debt from a subsidiary to the parent company

/ condition / As of the end of December 2011, the Daughter company’s accounts included accounts payable to the supplier in the amount of RUB 2,360,000. for goods supplied with a payment deadline of February 15, 2012. The main participant of the Daughter company, the Mama company, agreed to assume this debt before the closing of the reporting period, forgiving the Daughter company for any arising obligations in connection with the transfer of the debt.

On December 30, an agreement was concluded on the transfer of debt, to which the supplier gave his written consent. On the same day, the Mama company decided to write off the debt incurred by the Daughter company in order to increase its net assets.

/ solution / The following entries will be made in the accounting records of the Daughter company.

The following entries will be made in the accounting records of the Mama company.

In conclusion, we note once again that with this form of assistance to the “daughter”, your parent company will not be able to take into account tax expenses the value of the property or property rights transferred to it V clause 16 art. 270 Tax Code of the Russian Federation. And with the further sale of a share in the authorized capital of a subsidiary, exit from it or its liquidation, expenses can only take into account the costs of acquiring the share, in particular initial and additional contributions to the authorized capital l subp. 2.1 clause 1 art. 268, sub. 4 paragraphs 1 art. 251 Tax Code of the Russian Federation; Clause 2 Letter of the Ministry of Finance of Russia dated 09/06/2010 No. 03-04-06/2-204, but not such gratuitous assistance.

Keep in mind that if you decide to contribute to your daughter’s property, the procedure will be much more complicated - you will need to formalize a decision general meeting or even register amendments to its charter (if it does not provide for such contributions).

It will not be possible to quickly increase the net assets of a subsidiary with additional contributions to its authorized capital. Firstly, this is an even longer procedure that requires registration of amendments to the company’s charter in the Unified State Register of Legal Entities. And secondly, after making contributions, the subsidiary’s shortfall in net assets may continue. After all, if you increase the net assets of a subsidiary with contributions and its authorized capital increases by the same (and not less) amount, then its increased net assets will again be lower than the also increased authorized capital.

The legislation of the Russian Federation does not establish what documents can be used to formalize debt forgiveness. This may be an agreement (agreement) or a notice of debt forgiveness drawn up by the creditor and sent to the debtor. This follows from Articles 407, 415 of the Civil Code of the Russian Federation and paragraph 1 of Article 9 of the Law of December 6, 2011 No. 402-FZ.

Accounting

In accounting, reflect the amount of debt forgiven to the organization as part of other income on the loan in account 91 “Other income and expenses” (clause 7 of PBU 9/99). Make the wiring:

Debit 60 (66, 67, 75, 76...) Credit 91-1
- reflects the amount of debt forgiveness.

This follows from the Instructions for the chart of accounts (accounts 91, 60, 66, 67, 76).

Income in the form of a forgiven debt should be reflected as other income in the reporting period in which the notification (agreement, contract) about debt forgiveness was signed (received) (clause 16 of PBU 9/99).

Instead of debt forgiveness, you can pay additional contributions to the company . That is, to offset monetary claims against the company (clause 4 of article 19 of the Law of February 8, 1998 No. 14-FZ).

An example of how debt forgiveness under a supply agreement is reflected in the debtor’s accounting

On January 20, Alpha LLC shipped goods worth 118,000 rubles to Trading Company Hermes LLC. (including VAT - 18,000 rubles). The term for payment for goods according to the supply agreement is 21 calendar days from the date of shipment.

Since bankruptcy proceedings were initiated against Hermes, Alpha forgave the debt to the buyer. On February 19, Hermes received a notice of debt forgiveness in the amount of 118,000 rubles.

Debit 41 Credit 60
- 118,000 rub. - purchased goods are capitalized;

Debit 19 Credit 60
- 18,000 rub. - reflected input VAT on purchased goods.

Debit 60 Credit 91-1
- 118,000 rub. - reflects the amount of debt forgiveness.

An example of how debt forgiveness under a loan agreement with an organization is reflected in the debtor’s accounting

On February 28, Alpha LLC provided a loan to Trading Company Hermes LLC in the amount of 500,000 rubles. for the period from March 1 to March 31 (inclusive). The amount of interest payable to the lender for the use of borrowed funds is 4,000 rubles.

On the date of loan repayment (March 31), a debt forgiveness agreement was signed, according to which Alpha releases Hermes from the obligation to repay the loan amount received and pay interest on the use of borrowed funds.

To reflect transactions under the loan agreement, the Hermes accountant opened subaccounts for account 66 “Settlements for short-term loans and borrowings”:
- “Calculations on the principal debt”;
- “Calculations based on interest.”

The Hermes accountant recorded transactions related to debt forgiveness as follows.

Debit 51 Credit 66 subaccount “Principal payments”
- 500,000 rub. - the loan amount is credited to the current account.

Debit 91-2 Credit 66 subaccount “Interest payments”
- 4000 rub. - interest accrued on the loan received;

Debit 66 subaccount “Principal payments” Credit 91-1
- 500,000 rub. - the debt on the principal amount of the debt is written off;

Debit 66 subaccount “Interest payments” Credit 91-1
- 4000 rub. - the debt to pay interest on the loan is written off.

BASIC: income tax

The amount of the forgiven debt (under the agreement for the purchase of goods, works, services, property rights - including VAT) should be included in non-operating income (clauses 8 and 18 of Article 250 of the Tax Code of the Russian Federation).

Recognize non-operating income on the date of signing (receipt) of the notice (agreement, contract) about debt forgiveness (subclause 3, clause 4, article 271, clause 2, article 273 of the Tax Code of the Russian Federation). This procedure applies regardless of what agreement the debt is written off in this way (an agreement for the purchase of goods, work, services, property rights or a loan) and what method the organization uses when calculating income tax.

Moreover, if the debt is written off under an agreement for the purchase of goods (including for subsequent sale), work, services, property rights and the organization applies the cash method at the time of signing (receiving) a notice (agreement, contract) about debt forgiveness, the purchased goods (work, services, property rights) will be considered paid. This is explained by the fact that by clause 3 of Article 273 of the Tax Code of the Russian Federation, payment is understood as another method of terminating an obligation (in this case, debt forgiveness) (clause 1 of Article 407, Article 415 of the Civil Code of the Russian Federation).

If the debt is forgiven under an interest-bearing loan agreement, then the accrued interest on it is also taken into account in income (clause 18 of Article 250 of the Tax Code of the Russian Federation). At the same time, even those forgiven interests that the organization for some reason did not previously take into account in expenses are reflected in income (letter of the Ministry of Finance of Russia dated March 31, 2011 No. 03-03-06/1/191).

When using the accrual method at the time of signing (receiving) a notice (agreement, contract) about debt forgiveness, write off interest that is subject to accrual in the current reporting period, but not taken into account at the time of debt forgiveness, as a reduction in taxable profit (subclause 2, clause 1, article 265, Clause 8 of Article 272 of the Tax Code of the Russian Federation).

Include interest in calculations tax base(clause 1 of article 269, subclause 2 of clause 1 of article 265 of the Tax Code of the Russian Federation).

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

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

The tax base for income tax is not increased only by the value of property received free of charge from the founder, whose share in the authorized capital of the organization exceeds 50 percent (subclause 11, clause 1, article 251 of the Tax Code of the Russian Federation). As a result of debt forgiveness, the transfer of property does not occur (clause 2 of Article 38 of the 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 of Article 250 of the Tax Code of the Russian Federation. The Tax Code of the Russian Federation does not provide for any exceptions to the procedure for its taxation.

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

However, in letter dated March 6, 2009 No. 3-2-06/32, the Federal Tax Service of Russia expressed a different point of view. As a result of debt forgiveness, the organization saves cash, which can be equated to receiving money, that is, property (clause 3 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 22, 2005 No. 98). Property received free of charge from a founder whose share of participation in the organization exceeds 50 percent is not recognized as income (subclause 11, clause 1, article 251 of the Tax Code of the Russian Federation). Therefore, this transaction should not be subject to income tax.

In addition, in this letter, the Federal Tax Service of Russia indicated that on the issue of accounting for the amount of debt forgiven by the founder upon repayment of the loan amount, the Ministry of Finance of Russia adheres to a similar position. Since the termination of obligations in cases of debt forgiveness under loan agreements is similar in nature to the termination of obligations by forgiveness of debt for goods supplied (work performed, services rendered, property rights received), subparagraph 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation should also be applied to these transactions.

In this situation, the organization must independently decide which of these positions to follow. However, due to the release of later clarifications from regulatory agencies, disputes with inspectors may arise. At the same time, in arbitration practice there are examples court decisions adopted in favor of organizations (see, for example, the determination of the Supreme Arbitration Court of the Russian Federation dated July 24, 2009 No. VAS-8675/09, resolution of the Federal Antimonopoly Service of the North Caucasus District dated May 21, 2009 No. A63-9238/2008-S4-37, Central District dated November 15, 2007 No. A54-125/2007-C13, Northwestern District dated April 4, 2003 No. A56-39007/02).

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

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

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

The Russian Ministry of Finance indicates that the amount of a loan received, forgiven by the founder, whose share in the authorized capital of the organization exceeds 50 percent, does not need to be included in income (see, for example, letters dated September 30, 2013 No. 03-03-06/1/40367 , dated October 21, 2010 No. 03-03-06/1/656, dated October 14, 2010 No. 03-03-06/1/646). This is explained like this.

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

The Russian Ministry of Finance is convinced that the condition on the size of the contribution (share) in the authorized capital must be met at the time of concluding the loan agreement (letter of the Russian Ministry of Finance 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 fall under the provisions of subparagraph 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation, therefore it does not increase the tax base of the organization.

The tax department also agrees with the stated point of view (see, for example, letters 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 regulatory agencies on a similar issue of accounting for the amount of debt forgiven by the founder under an agreement for the purchase of goods (work, services, property rights), it is possible that failure to reflect income when the debt is forgiven under a loan agreement may cause claims from inspectors. The fact is that, if you follow the norms of civil law, debt forgiveness is a way to terminate the obligation under the original compensation agreement (Articles 407 and 415 of the Civil Code of the Russian Federation). Therefore, the amount of forgiven debt, including under a loan agreement, cannot be considered property received free of charge (Article 572 of the Civil 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 of Article 250 of the Tax Code of the Russian Federation. There are no exceptions regarding the non-reflection of income received from the founder in relation to this paragraph. Therefore, when forgiveness of debt under a loan agreement (as under any other agreement), it is necessary to generate income.

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

Advice: There is a way not to take into account the amount of debt forgiven by the founder under the loan agreement.

Along with the agreement on debt forgiveness, it is necessary to draw up the minutes of the general meeting of the company's participants (shareholders), according to which property, property or non-property rights are transferred to the organization to increase net assets (subclause 3.4, clause 1, article 251 of the Tax Code of the Russian Federation). In this case, the size of the founder’s share in the authorized capital of the organization does not matter. The opportunity to take advantage of such a benefit appeared on January 1, 2011 and applies to obligations arising from January 1, 2007 (clauses 1 and 2 of Article 4 of the Law of December 28, 2010 No. 409-FZ).

For more information, see .

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

The amount of interest when debt is forgiven must be taken into account as part of non-operating income (Clause 18, Article 250 of the Tax Code of the Russian Federation).

It is explained this way. At its core, interest is a fee that the borrower must pay for the use of borrowed funds in accordance with the loan agreement (Article 809 of the Civil Code of the Russian Federation). Therefore, when a debt is forgiven, the organization’s accounts payable are written off (Article 415 of the Civil Code of the Russian Federation). The legislation does not provide for any exceptions to the taxation procedure.

This position is reflected in letters of the Ministry of Finance of Russia dated September 30, 2013 No. 03-03-06/1/40367, dated October 14, 2010 No. 03-03-06/1/646, dated April 17, 2009 No. 03- 03-06/1/259.

The tax department confirms the stated point of view (see, for example, letters of the Federal Tax Service of Russia dated May 22, 2009 No. 3-2-13/76, Federal Tax Service of Russia for Moscow dated December 29, 2008 No. 19-12/121854).

However, in letter dated March 6, 2009 No. 3 -2-06/32, the Federal Tax Service of Russia expressed a different point of view.

As a result of debt forgiveness, the organization saves money, which can be equated to receiving money, that is, property (clause 3 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 22, 2005 No. 98). Property received free of charge from a founder whose share of participation in the organization exceeds 50 percent is not recognized as income (subclause 11, clause 1, article 251 of the Tax Code of the Russian Federation). Therefore, this transaction should not be subject to income tax.

In addition, in this letter, the Federal Tax Service of Russia indicated that on the issue of accounting for the amount of debt forgiven by the founder upon repayment of the loan amount, the Ministry of Finance of Russia adheres to a similar position. Since forgiveness of the principal debt under loan agreements is similar in nature to the termination of interest obligations on loans, subparagraph 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation should also be applied to these transactions.

An example of how the amount of interest on a loan provided by the founder is reflected in accounting and taxation. The loan debt is written off by debt forgiveness. The organization applies a general taxation system

One of the founders of Alpha LLC is LLC Manufacturing company"Master"". The Master's share in the authorized capital of the organization is 51 percent.

On January 17, “Master” provided “Alfa” with a loan in the amount of 200,000 rubles. at 15 percent per annum for a period of two months (not a leap year). According to the terms of the agreement, interest is paid no later than the 20th day of the following month. The organization did not receive any other loans.

On February 16, the management of Master decided to forgive the debt on the loan provided. When reflecting the debt forgiveness operation, the accountant was guided by the position of the Russian Ministry of Finance.

The following entries were made in accounting.

Debit 51 Credit 66
- 200,000 rub. - received a loan from the founder of the organization.

Debit 91-2 Credit 66
- 1151 rub. (RUB 200,000 × 15%: 365 days × 14 days) - interest accrued for January.

Alpha pays income tax monthly and uses the accrual method. When calculating income tax for January, the accountant took into account interest on the loan in the amount of 1,151 rubles as part of non-operating expenses.

Debit 91-2 Credit 66
- 1315 rub. (RUB 200,000 × 15%: 365 days × 16 days) - interest accrued for February;

Debit 66 Credit 91-1
- 200,000 rub. - the amount of forgiven debt on the loan received is included in the organization’s other income;

Debit 66 Credit 91-1
- 2466 rub. (RUB 1,151 + RUB 1,315) - interest on the forgiven debt is included in other income.

When calculating income tax in February, the accountant took into account interest on forgiven debt as income - 2,466 rubles. (1151 rub. + 1315 rub.).

As part of non-operating expenses, the accountant took into account interest on the loan in the amount of 1,315 rubles.

Advice: There is a way not to take into account the amount of debt forgiven by the founder in the form of interest under the loan agreement.

Along with the agreement on debt forgiveness, it is necessary to draw up the minutes of the general meeting of the company's participants (shareholders), according to which property, property or non-property rights are transferred to the organization to increase net assets (subclause 3.4, clause 1, article 251 of the Tax Code of the Russian Federation). In this case, the size of the founder’s share in the authorized capital of the organization does not matter. The opportunity to take advantage of such a benefit appeared on January 1, 2011 and applies to obligations arising from January 1, 2007 (clauses 1 and 2 of Article 4 of the Law of December 28, 2010 No. 409-FZ).

For more information, seeHow to formalize and record receipt of financial assistance from the founder (participant, shareholder) .

Situation: Is it necessary to restore VAT on the amount of forgiven debt under an agreement for the purchase of goods (works, services, property rights)? Goods (works, services, property rights) purchased for use in transactions subject to VAT.

No no need.

Forgiveness of the debt by the seller (performer) leads to a reduction in the buyer's (customer's) obligations to pay for the goods supplied to him (work, services, property rights (Articles 407, 415 of the Civil Code of the Russian Federation). However, the price of the contract and the amount of previously submitted VAT upon forgiveness of the debt remain unchanged. The buyer has the right to deduct the amount of VAT presented by the seller (executor) simultaneously with the receipt of goods (work, services, property rights) (clause 2 of Article 171, clause 1 of Article 172 of the Tax Code of the Russian Federation). ) the right to deduct input VAT does not depend. Therefore, if the goods supplied (work, services, property rights) were accepted for accounting, and the amount of VAT was allocated in a correctly executed invoice, then the application of a tax deduction by the buyer (customer) is considered justified.

The list of conditions under which the buyer (customer) must restore VAT accepted for deduction is given in paragraph 3 of Article 170 of the Tax Code of the Russian Federation. Debt forgiveness, that is, the refusal of the seller (performer) to receive payment for goods supplied (work, services, property rights), is not indicated in this list. Therefore, there are no grounds for reinstating input VAT in the situation under consideration.

The ruling of the Constitutional Court of the Russian Federation dated November 4, 2004 No. 324-O, according to which, when a debt is forgiven, the buyer (customer) must restore input VAT, has now lost its relevance. The basis for this conclusion was the fact that when the debt is forgiven, the buyer (customer) does not bear the actual costs of paying VAT. Since 2006, payment of VAT to the seller (performer) has been excluded from the list of conditions required for the application of a tax deduction (clause 21, article 1, clause 1, article 5 of the Law of July 22, 2005 No. 119-FZ). Therefore, in relation to transactions carried out in later periods, the explanations of the Constitutional Court of the Russian Federation do not apply.

simplified tax system

The amount of the forgiven debt both under the agreement for the purchase of goods (works, services, property rights) and under the loan agreement should be included in non-operating income (clauses 8 and 18 of Article 250, clause 1 of Article 346.15 of the Tax Code of the Russian Federation). Do this on the date of signing (receipt) of the notification (agreement, contract) about debt forgiveness, regardless of the applied taxable object (clause 1 of Article 346.17 of the Tax Code of the Russian Federation).

On whether the debtor can take into account in income when calculating the single tax the amount of debt forgiven by the founder, who has a contribution to the authorized capital of the debtor of more than 50 percent, (Subclause 1, Clause 1.1, Article 346.15 of the Tax Code of the Russian Federation).

If an organization calculates a single tax on the difference between income and expenses, the cost of purchased goods (work, services) is written off only after payment. Such payment is also considered to be the termination of obligations at the moment when a notice (agreement, contract) about debt forgiveness is signed (Clause 1, Article 407, Article 415 of the Civil Code of the Russian Federation). Therefore, if an organization has forgiven a debt for fixed assets, intangible assets or goods purchased for resale, such assets are considered paid and written off to general procedure(Subclauses 2 and 4 of Clause 2 of Article 346.17 of the Tax Code of the Russian Federation). Similarly, the cost of work and services that are not of a production nature is written off (clause 2 of Article 346.17 of the Tax Code of the Russian Federation).

In order to write off as material expenses the cost of raw materials, components, work, production services and everything that is named in Article 254 of the Tax Code of the Russian Federation, the payment requirement must be fulfilled in specific ways. It is necessary to transfer money from the current account, deposit it in the cash register, or pay off the debt in another way (subclause 1, clause 2, article 346.17 of the Tax Code of the Russian Federation). When a debt is forgiven, there is no repayment of the debt, so material expenses cannot be written off. A similar point of view is expressed in the letter of the Ministry of Finance of Russia dated April 15, 2011 No. 03-11-06/2/57.

If organizations forgive a debt under an interest-bearing loan agreement, the interest cannot be written off as expenses.

When the object of taxation is income, the organization does not take into account any expenses (clause 1 of Article 346.18 of the Tax Code of the Russian Federation).

If an organization pays a single tax on the difference between income and expenses, interest is considered paid at the time the debt is repaid. And when a notice (agreement, contract) about debt forgiveness is signed, this condition is not met. This procedure follows from subparagraph 9 of paragraph 1 of Article 346.16 and subparagraph 1 of paragraph 2 of Article 346.17 of the Tax Code of the Russian Federation.

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

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

If the share contributed by the founder is 50 percent or less, take the amount of the written off loan debt into account as income. Do the same if the property transferred to the organization as a result of debt forgiveness was transferred to third parties during the year. This follows from paragraph 1 of Article 346.15 and paragraph 8 of Article 250 of the Tax Code of the Russian Federation. Recognize income on the date of signing the agreement on debt forgiveness (clause 1 of Article 346.15, clause 2 of Article 273 of the Tax Code of the Russian Federation).

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

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

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

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

For accounting for interest on debt forgiven by the founder, see How to take into account interest on a loan (credit) received for taxation .

An example of settlements with the founder of an organization for a loan provided. The founder's share in the authorized capital of the organization is more than 50 percent. The organization applies simplification

One of the founders of Alpha LLC is A.V. Lviv. The share contributed by Lvov to the authorized capital of the organization is 51 percent.

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

When calculating the single tax, the Alpha accountant was guided by the position of the Russian Ministry of Finance. Therefore, he did not include the amount of the forgiven debt as income.

UTII

The object of UTII taxation is imputed income (clause 1 of Article 346.29 of the Tax Code of the Russian Federation). Therefore, the amount of forgiven debt will not affect the tax base for UTII.

Payment of a single tax provides for exemption, in particular, from the obligation to pay income tax (clause 4 of Article 346.26 of the Tax Code of the Russian Federation). If the debtor carries out only one type entrepreneurial activity, liable to taxation of UTII, the amount of the forgiven debt is considered received under this tax regime. Consequently, such income is exempt from income tax (clause 4 of Article 346.26 of the Tax Code of the Russian Federation). A similar conclusion was made in letters of the Ministry of Finance of Russia dated September 22, 2006 No. 03-11-04/3/419, dated July 7, 2006 No. 03-11-04/3/338. They express an opinion regarding the accounting of other non-operating income of the organization on UTII (for example, the amount of overdue accounts payable).

OSNO and UTII

If the debtor applies the general taxation system and pays UTII, he is obliged to maintain separate accounting of income, expenses and business transactions (clause 7 of article 346.26 of the Tax Code of the Russian Federation). When calculating income tax, include in non-operating income only the amount of forgiven debt that arose as part of the activity on common system taxation.

If the debt is forgiven for goods (works, services, property rights), which were used in both types of activities, then when writing it off, include the entire amount of non-operating income in the calculation of the tax base for income tax. This was stated in the letter of the Ministry of Finance of Russia dated March 15, 2005 No. 03-03-01-04/1/116. This position is based on the fact that the current tax legislation does not contain a mechanism for distributing non-operating income between different types activities.

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

Method No. 1. Companies first draw up a loan agreement, and then forgive the debt

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

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

But issuing interest-free loans to subsidiaries is risky. 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, this is beneficial for the subsidiary: interest on loans is reduced. Of course, one must take into account the restrictions set forth in paragraph 1 of Article 269 of the Tax Code of the Russian Federation.

Subsequently, the parent company forgives the debt. To do this, it is enough to sign the appropriate agreement (see 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 Russian Ministry of Finance also agrees with this approach (letter dated September 30, 2013 No. 03-03-06/1/40367).

At the same time, it is important that the condition on the size of the founder’s share is met 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: tax authorities insist that the amount of interest when debt is forgiven must be included in the borrower’s non-operating income (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. But the organization did not receive interest as such from the founder, but accrued it and included it in expenses. That is, there was no gratuitous transfer of property. This means that the benefit cannot be applied.

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

Founder. The amount of the forgiven loan cannot be included in tax expenses. According to the Russian Ministry of Finance, 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 as part of non-operating expenses 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).

Methods of debt forgiveness may be as follows.

Method No. 2. The company increases its subsidiaries

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

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

The Russian Ministry of Finance has long believed that the amount of forgiven debt to pay for purchased goods (work, services) is included in non-operating income (letter of the Russian Ministry of Finance dated February 7, 2011 No. 03-03-06/1/76). Local inspectors reason like this. The organization includes the cost of goods (work, services) as expenses without paying for 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 use 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, along 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 debt is offset against an increase in net assets, the subsidiary will not pay income tax. Moreover, the size of the founder’s share in the company’s authorized capital does not matter.

Another plus is that it is not necessary to fulfill the condition of preserving the property for a year from the date of its receipt (letters from 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 unrepaid 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 took into account as expenses, can also be used to increase net assets. However, in this case, 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-3-3/1581@.

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

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