Determination of the actual value of property. How to calculate the share when a participant leaves an LLC? Change in the nominal value of the share of a participant - an individual

Often, when carrying out insurance actions, you have to come across such a term as valid. Having an idea of ​​the features of such a concept, there is a high chance of not getting confused and getting insurance correctly.

Actual value of property, general concept

Actual cost property - for insurance

The actual, actual value of the property, in other words, is used for insurance purposes. This concept is of particular importance in situations where it is necessary to make a determination regarding the insured amount in a property insurance agreement.

As for the amount of the insured amount, it cannot be higher than the insured value. When it comes to money, you will have to forget about such a concept as actual value, because it loses its meaning. This is due to the fact that there is no objective assessment of the cost of a person’s health or life.

Often, the balance sheet (inventory) value is used to establish the insurable value. This is typical, first of all, for enterprises in which fixed assets are insured in accordance with their full book value (in this case, depreciation is also taken into account). It follows that in the event of complete loss of the designated property objects, the insured value will coincide with the total amount of insurance compensation.

Features characteristic of the actual value of property objects

Actual price may vary

The actual value of property is characterized by changes, both downward and upward. In cases where this amount is designated as underestimated to the insurance amount, the further development of the situation is determined by the nuances of Art. 951 Civil Code.

Exceptions are possible, which include those moments when the amount of the insured value in the contract is fixed. The actual value of the property should be determined in accordance with its location at the time when it was made.

Insurance at a cost, called replacement cost, which at the time of the occurrence of an insured situation may significantly exceed that indicated in the concluded agreement, is not allowed.

If the actual value of the property tends to increase, and the amount of the insured amount does not change upward, and there will be no payment of additional insurance premiums, you can refer to paragraph 4.5 of paragraph 4 of the Civil Code.
Since the establishment of the value of property objects is carried out at their locations on the day on which it is concluded, the address must be clearly indicated in this agreement.

For property, the amount of insurance usually cannot be higher than the actual value of the property. However, most types of property insurance assess damage less than its actual value in cases where the property is not destroyed, but only significantly damaged as a result of an event related to the insurance. The name of such damage is partial.

The value fixed in the contractual agreement is the actual value of the property. If the amount of insurance specified in the contract is higher than the insured value, then the document is considered invalid to the extent that it exceeds the actual cost.

If we're talking about about an underestimated amount of insured value, then the issue with the amount of insurance compensation is resolved by reducing the insured amount to the insured value in proportion.

Actual cost, determination methods

Actual value and market value are different concepts

The concept of “true value” is far from identical to the term “market value”. Therefore, in order to determine the actual value, it makes no sense to use methods designed to establish the market price.

Various methods are used to determine the insurable value. In each country they differ, depending on what kind of legislation operates and what the object of insurance is. If the insured amount and the insured value are equal, the property is considered fully insured.

If the amount is less, then the share of responsibility falls on the policyholder's own risk. Among the main methods for determining the actual sum insured are:

1. The insurable value of the property as the purchase price.
   
2. The insurable value as its book value.
   
3. Insurable value as the average market value.
   
4. Insurance value as replacement value.
   

However, none of these methods is ideal and many of them cannot be used in their pure form to establish the actual value.

Methods for establishing the actual value of property

A professional will help you evaluate the property

To resolve the issue of determining the actual value of property, you can resort to the following actions:

• Apply information from reference books or reports from independent appraisers. In other words, it is necessary to determine the valuation in financial terms of the direct subject of insurance. As for property, the insurable value for it will be determined directly, by the actual price established at the time of concluding the insurance agreement.
  
• In cases of real estate insurance, in order to determine the amount of the insured value of the insurance object (whether it is a house), it is allowed to accept an amount equal to market value the premises under investigation, but only if it is similar to the insured one. In other words, in order to determine the value of the insurable value of an apartment, it is necessary to calculate the market price of apartments located in the same area, having a similar area with the same number of rooms, and located on the same floor.
  

Thus, to calculate the actual value of the property, we use various ways economic assessment. It is important to remember that this value is crucial when establishing the insurance amount.

Expert lawyer's opinion:

For a general understanding of the situation with property valuation for insurance purposes, the article is quite useful. You gain some knowledge on this issue. However, this knowledge alone is not enough to make the right decision.

It consists of whether or not to agree with the amount of insurance compensation if your property is destroyed or requires serious repairs. There can be only one criterion. This money is enough to restore the property to its original condition. Enough, then everything is fine. If not, look for why this happened. Who screwed up, you or the appraiser? Find the cause, eliminate the consequences. After that, make a decision.

To this process should be added the costs of the insurance itself, or, more simply, the amount of the insurance premium. Here you will get the full calculation. It is up to you to draw a conclusion about the appropriateness of such an assessment. Make the right decisions based on our recommendations.

About property valuation - in the thematic video:

According to Art. 14 of the Law, the authorized capital (authorized capital) of the company is compiled from the nominal value of the shares its participants.

The size of the share of a company participant in the authorized capital (authorized capital) of the company is determined as a percentage or as a fraction. Participant's share size society must comply the ratio of the nominal value of its share and the authorized capital(authorized capital) society.

Example 1.100% of the authorized capital is 10 million soums. The nominal value of one participant is 3 million soums, and the nominal value of the second is 7 million. Accordingly, the percentage ratio of the nominal value of the share and the authorized capital is 30% and 70% of the authorized capital, respectively.

That is, the constituent documents of the company contain exactly the nominal value of the share of the participant (founder), which he is preparing to contribute or has already contributed to the authorized fund. In other words, the size of the share declared in the charter (and in the constituent agreement) is called nominal.

However, the legislation contains another concept - the actual value of the share. This seems to be due to the fact that in the course of its activities the company develops financially (makes a profit, acquires goods and materials, including long-term assets) or, on the contrary, suffers losses and goes bankrupt. Those. the nominal value of the share may not actually correspond to the real value financial situation society. The actual value of the share may be higher or lower than the nominal value (declared in the charter and constituent agreement).

According to part four of Art. 14 of the Company Participant Law corresponds to part of the cost net assets society, proportional to the size of its share.

Example 2. A company has an authorized capital in the amount of 10 million soums, and net assets in the amount of 100 million. The size of the share of one participant is 30% of the authorized capital, the nominal value of its share is 3 million, and the actual value of the share is 30 million. The size of the share of the second participant is 70% of the authorized capital, its nominal value is 7 million, and the actual value of the share is 70 million soums.

In case of unprofitable financial activities company, the actual value of the share will be lower than its nominal value.

We remind you that that if at the end of the second and each subsequent financial year the value of the company’s net assets turns out to be less than its authorized capital (authorized capital), the company is obliged to announce its reduction to an amount not exceeding the value of its net assets and register such a decrease in the prescribed manner (part fifth article 19 of the Law).

If at the end of the second and each subsequent financial year the value of the company’s net assets is less than the minimum size of the authorized capital (authorized capital) established by this Law on the date of state registration of the company, it is subject to liquidation (part six of Article 19 of the Law).

Determination of the nominal and actual value of a share

Face value It’s easy to determine the shares - just read the corresponding clause of the charter (with all the amendments to it).

Define actual value shares without a company balance sheet is impossible. By general rule 2 , actual value of the share participant of the company in the authorized capital of the company determined based on data financial statements company for the last reporting period, preceding the occurrence of a particular event 3. Those. for most companies that pay the Unified Tax Policy - based on the latest annual tax reporting.

To determine the actual value of a share, it is necessary to know the total amount of the company's net assets - the book value of the company's property, not encumbered with obligations (cleared of obligations).

Net assets are determined based on the balance sheet data (last, submitted to the tax office) according to the following formula: all assets of the company minus all liabilities of the company = net assets of the company.

From this total amount net assets is calculated part of the value of the company's net assets, in proportion to the size of the participant's share. This amount is the actual value of the share.

Example 3. The total value of the company's net assets is 100 million soums. The share of a company participant, according to the charter, is determined in the amount of 30% of the authorized capital. Accordingly, the portion of net assets proportional to this share is 30 million. This is the actual value of the share.

Thus, to determine the actual value of a share, there is a clear algorithm:

1. determine the last reporting period of the company;

2. calculate the total amount of net assets based on the latest balance sheet of the company;

3. We calculate a portion of the total amount of net assets in proportion to the participant’s share (according to the charter).

In what cases is it used? nominal and actual value of the share

nominal cost share is applied in the case of determining the total size of the authorized capital and the value of the shares of each participant in the constituent documents of the company. It is declared when the company is created and is sometimes changed at the request of the participants or due to necessity.

The nominal value of the share is also applied when the participant sells his share.

Actual cost shares apply in the following cases specified in the Law:

When a company is obliged to acquire, at the request of a company participant, a share belonging to him 4. In this case, the company is obliged to pay the company participant the actual value of this share (part of the share), which is determined on the basis of the financial statements for the last reporting period, preceding the day of the participant's application with such a requirement, or with the consent of the participant, to give him in kind property of the same value (Part two of Article 22 of the Law);

When the share of a company participant passes to the company if:

When establishing the company, the participant did not make his contribution to the authorized capital in full on time;

The participant did not provide on time monetary compensation in return for early termination of the right to use the property contributed by him to the authorized capital. In this case, the company is obliged to pay the participant the actual value of part of his share, in proportion to the part of the contribution made by him (the period during which the property was in the use of the company), or, with the consent of the participant, give him in kind property of the same value. The actual value of part of the share is determined on the basis of financial statements for the last reporting period preceding the day of expiration of the deposit or providing compensation (Part three of Article 22 of the Law).

When the share of a participant expelled or withdrawn from the company passes to the company. In this case, the company is obliged to pay such participant the actual value of his share, which is determined according to the financial statements for the last reporting period preceding the date of exclusion and withdrawal, or with the consent of this participant, give him in kind property of the same value (Part five of Article 22 of the Law);

If, in accordance with the charter of the company, the transfer or redistribution of a share is possible only with the consent of the remaining participants, then the share passes to the company:

if the company participants refuse consent to the transfer or distribution of shares in cases of inheritance or succession of legal entities,

when, in the event of liquidation of a legal entity - a participant in the company, the share belonging to it, remaining after completion of settlements with its creditors, is distributed among the participants of the liquidated legal entity. In this case, the company is obliged to pay the heirs of a deceased participant, the legal successors of a reorganized legal entity - a participant of the company or participants of a liquidated legal entity - a participant of the company, the actual value of the share, determined on the basis of financial statements for the last reporting period preceding the date of death, reorganization or liquidation, respectively, or with their consent, give them in kind property of the same value (Part six of Article 22 of the Law);

In the event of foreclosure on the share (part of the share) of participant 5 for his debts, the company has the right to pay creditors the actual value of the share (part of the share) of the participant (Part two of Article 24 of the Law).

The actual value of the participant's share is also applied when it is sold.

When completing a share purchase and sale transaction, both the nominal and actual value of the share are applied. More about this in the next publication.

Zumrad NIYAZMETOVA, lawyer.

When creating a limited liability company, participants usually plan long-term and long-term activities. But reality is more complicated than any plans, and often the founders of a company, for one reason or another, have to “leave the game” and leave their brainchild. How to “say goodbye” competently, what rights and obligations arise in this case, the peculiarities of taxation of such transactions - we will discuss these and other aspects in the article.

The legal status of the company, the rights and obligations of its participants are determined by two main documents. These are the Civil Code of the Russian Federation and Federal Law No. 14-FZ dated 02/08/1998 “On Limited Liability Companies” (hereinafter referred to as Law No. 14-FZ).

Article 87 of the Civil Code of the Russian Federation recognizes an LLC as a company established by one or several persons, the authorized capital of which is divided into shares of certain constituent documents sizes. The participants of the company are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the limits of the value of the contributions made by them.

The Civil Code of the Russian Federation recognizes the right of a company participant to sell or otherwise assign his share in the authorized capital of the company or part thereof to one or more participants of this company.

Alienation by a company participant of his share (part thereof) to third parties is permitted, unless otherwise provided by the company's charter (clause 2 of article 93 of the Civil Code of the Russian Federation).

This right is also stipulated by Article 21 of Law No. 14-FZ, which additionally indicates that the consent of the company or other participants of the company to carry out such a transaction is not required, unless otherwise provided by the company's charter.

EXAMPLE 1. “RESTRICTION” ON ALIENATION OF SHARES

Extract from the Charter of a limited liability company.

A member of the company has the right to leave the Company at any time, regardless of the consent of its other Participants or the Company.

A Company Member who intends to sell his share (part of a share) to a third party is obliged to notify the other Company Members and the Company itself about this in writing, indicating the price and other conditions of its sale.

It should be noted that company participants enjoy the pre-emptive right to purchase a share (part of a share) of a company participant at the offer price to a third party or at a price different from the offer price to a third party and predetermined by the company charter in proportion to the size of their shares, unless the company charter or agreement of the company participants a different procedure for exercising this right is provided.

Thus, we have established that the buyers of the share can be members of the company and third parties. These can be both individuals and legal entities.

However, there may be another acquirer - the society itself. This is stated in Article 23 of Law No. 14-FZ, which determined the list of cases in which companies can acquire a share of participants (part of the share) in their authorized capital.

The acquisition of a share by a company in other cases is prohibited by law.

Valuation of the participant's share

As a rule, the participants in the transaction, after lengthy assessments, analyzes, and estimates, more or less clearly understand the value of the proposed share. Sometimes the market value of the assets listed on the company's balance sheet, and therefore the share itself, differs greatly from accounting estimates. At the same time, often legally established methods for calculating value can be very helpful in determining the real price of the transaction. And in a number of situations, the organization is simply obliged to calculate the value of the share in a certain order.

Thus, paragraph 2 of Article 94 of the Civil Code of the Russian Federation indicates that the participant must be paid the actual value of his share in the authorized capital or, with his consent, property of the same value must be issued in kind in the manner, manner and within the time limits provided for by the law on companies with limited liability and the company's charter.

And in paragraph 2 of Article 23 of Law No. 14-FZ it is determined that if a company is obliged to buy out a participant’s share, then within three months from the date the corresponding obligation arises, unless a different period is provided for by the charter, it is obliged to pay the participant the actual value of his share in the authorized capital . It is determined on the basis of the company’s financial statements for the last reporting period preceding the day the company participant submitted the corresponding request, or with the consent of the company participant to give him in kind property of the same value.

The actual value of a participant's share in the authorized capital is calculated using the formula.

Formula for calculating the actual value of a share

The procedure for determining the value of net assets was approved by Order of the Ministry of Finance of Russia dated August 28, 2014 No. 84n “On approval of the Procedure for determining the value of net assets.”

In a simplified form, the net assets of an enterprise are assets cleared of all liabilities, that is, the amount of current and non-current assets remaining at the disposal of the company after the repayment of all its creditor obligations.

But it is no secret that the book value of property can differ greatly from its real market value. For example, a building purchased at the beginning of this century, and listed on the balance sheet for several million rubles, may actually cost tens of millions of rubles. So what should we do then? It turns out that a citizen who wants to leave the society, due to the requirements of Law No. 14-FZ, must transfer his share for next to nothing?

No, that's not true. In accordance with the explanations contained in paragraph 16 of the joint resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 9, 1999 No. 90/14 “On some issues of application Federal Law“On Limited Liability Companies”, if a company participant does not agree with the amount of the actual value of his share in the authorized capital of the company, determined by the company, the court checks the validity of his arguments, as well as the company’s objections based on the evidence presented by the parties, provided for by procedural legislation , including the conclusions of the examination carried out in the case.

The obligation to take into account the market value of real estate when calculating the actual value of the share of a withdrawing participant in the company is indicated in the resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 06/07/2005 No. 15787/04, dated 09/06/2005 No. 5261/05, dated 05/26/2009 No. 836/09 and dated April 17, 2012 No. 16191/11.

Analysis of a specific situation

Individuals Ivanov, Petrov and the legal entity Granat LLC in March 2018 entered into memorandum of association on the creation of Aristocrat LLC. The authorized capital of the company being created was agreed upon in the amount of 1,000,000 rubles.

The size of the founders' shares in the authorized capital of the enterprise was agreed upon as follows (see table).

The size of the founders’ shares in the management company of the LLC

In the organization's accounting after state registration enterprises in March 2018 the following entries were made:

DEBIT 75/Ivanov   CREDIT 80 subaccount “Announced authorized capital”/Ivanov
- 250,000 rub. – the formation of the authorized capital of the LLC is reflected in the amount of Ivanov’s share declared in the constituent documents;

DEBIT 75/Petrov   CREDIT 80 subaccount “Announced authorized capital”/Petrov
- 240,000 rub. – the formation of the authorized capital of the LLC is reflected in the amount of Petrov’s share declared in the constituent documents;

DEBIT 75/Granat LLC CREDIT 80 subaccount “Announced authorized capital”/Granat LLC
- 510,000 rub. – the formation of the authorized capital of the LLC is reflected in the amount of the share of Granat LLC declared in the constituent documents;

After payment of the authorized capital, all participants made the following entries:

DEBIT 80 sub-account “Announced authorized capital”/Ivanov   CREDIT 80 sub-account “Paid-up authorized capital”/Ivanov
- 250,000 rub. – the paid authorized capital is reflected after the actual receipt of funds and other property on account of the contribution to the authorized capital;

DEBIT 80 sub-account “Announced authorized capital”/Petrov   CREDIT 80 sub-account “Paid-up authorized capital”/Petrov
- 240,000 rub. – the paid authorized capital is reflected after the actual receipt of funds and other property on account of the contribution to the authorized capital;

DEBIT 80 subaccount “Announced authorized capital”/Granat LLC   CREDIT 80 subaccount “Paid-up authorized capital”/Granat LLC
- 510,000 rub. – the paid authorized capital is reflected after the actual receipt of funds and other property on account of the contribution to the authorized capital.

Let’s assume that based on the results of work in March 2018, the following balance sheet was drawn up (see table).

Balance

Thus, the actual value of the participants’ share as of March 31, 2018 will be (see table).

Actual value of shares of LLC participants

Reflection of transactions involving the assignment of a participant’s share in accounting

Information about the state and movement of the organization’s authorized capital is reflected in account 80 “Authorized capital”.

Analytical accounting for account 80 is organized in such a way as to ensure the formation of information on the founders of the organization and the stages of capital formation.

The subsequent assignment of a share to another member of the company or third parties is reflected only in the analytical accounting of the company. To summarize information about the availability and movement of own shares purchased by the company from participants for their subsequent resale or cancellation, account 81 “Own shares (shares)” is used.

EXAMPLE 2. ACCOUNTING FOR THE ASSIGNMENT OF A SHARE BY A NEW OWNER

Let us turn to the input data from the situation described above and assume that in April 2018 Ivanov ceded his share (25%) to Petrov, and the share of Granat LLC transferred to the company.

In analytical accounting, the company’s accountant will indicate:

DEBIT 80 sub-account “Paid-up authorized capital”/Ivanov   CREDIT 80 sub-account “Paid-up authorized capital”/Petrov
- 250,000 rub. – the assignment of a share by a participant is reflected in the analytical accounting of the company;

DEBIT 81   CREDIT 75/Granat LLC
- RUB 733,442.22 – reflects the actual value of the share of the exiting participant - Granat LLC;

DEBIT 75/Granat LLC   CREDIT 51
- RUB 733,442.22 – the actual value of the share of the withdrawing participant – Granat LLC – was paid.

And we must take into account that if an individual sells or cedes a share, then, of course, the sellers will not make any entries. They are not required to maintain any accounting records. Another thing is a legal entity. When selling or assigning a share, certain transactions must also be reflected in their accounting.

Let us recall that an enterprise acquiring a share in the authorized capital will reflect this acquisition on account 58 " Financial investments" Consequently, upon disposal of such an asset, there will be a need to close account 58 “Financial investments”.

EXAMPLE 3. ACCOUNTING FOR THE ASSIGNMENT OF A SHARE TO AN EX-OWNER

We will reflect the assignment of shares in the accounting of Granat LLC.

The accountant made the following entries:

DEBIT 76   CREDIT 91
- RUB 733,442.22 – the transaction for the sale of shares is reflected.

DEBIT 91   CREDIT 62
- 510,000 rub. – the original cost of securities is written off.

DEBIT 51   CREDIT 76
- RUB 733,442.22 – funds from the new owner were transferred to the bank account of Granat LLC.

DEBIT 91   CREDIT 99
- RUB 223,442.22 – (733,442.22 – 510,000) – profit from the transaction is reflected.

Taxation upon exit from an LLC

The peculiarities of taxation of such transactions determine who is the owner of the shares - an individual or a legal entity; the applied taxation system; whether the sale is being made to a new owner or the shares are being assigned to the company.

When determining tax base Personal income tax takes into account all the taxpayer’s income received by him both in cash and in kind, or the right to dispose of which he has acquired, as well as income in the form of material benefits (Article 210 of the Tax Code of the Russian Federation).

These incomes individual will be taxed at a rate of 13%. In accordance with paragraphs 1 and 2 of Article 226 of the Tax Code of the Russian Federation, Russian organizations from which or as a result of relations with which the taxpayer received income are required to calculate, withhold from the taxpayer and pay this amount of tax to the budget. These organizations are tax agents (letters of the Ministry of Finance of Russia dated 09/03/2015 No. 03-04-06/50673, dated 07/15/2015 No. 03-04-06/40675, dated 03/13/2015 No. 03-04-05/13597).

Based on subparagraph 2 of paragraph 2 of Article 220 of the Tax Code of the Russian Federation, when assigning a share (part thereof) in the authorized capital of an organization, the taxpayer has the right to reduce the amount of taxable income by the amount of expenses actually incurred by him and documented expenses associated with the receipt of this income.

Expenses directly related to the transaction of purchase and sale of a share in the authorized capital of an organization include, in particular, the costs of acquiring the specified share, subject to documentary confirmation of the costs of contributing funds to pay for the acquired share.

note

Buyers of shares can be members of the company and third parties. These can be both individuals and legal entities. However, there may be another acquirer - the society itself. This is stated in Article 23 of Law No. 14-FZ.

But these amounts do not need to be assessed with any contributions to funds (pension, medical, social insurance). After all, payments to a participant when he leaves the company are neither remuneration nor remuneration for work performed or services under a civil contract (Article 420 of the Tax Code of the Russian Federation, Article 20.1 of the Federal Law of July 24, 1998 No. 125-FZ).

However, in relation to the transactions under consideration, the object of personal income tax taxation will not always arise. Income received from the sale (redemption) of participation interests in the authorized capital Russian organizations, provided that on the date of sale (redemption) of such participation shares they continuously belonged to the taxpayer by right of ownership or other property right for more than five years, are not subject to taxation (clause 17.2 of article 217 of the Tax Code of the Russian Federation, part 7 of article 5 of the Federal Law dated December 28, 2010 No. 395-FZ). A similar opinion was expressed in the letter of the Ministry of Finance of Russia dated December 22, 2017 No. 03-04-05/86203.

So, we have considered the assignment of shares to the company. When selling shares, the situation is somewhat different. In this case, the company will no longer be a tax agent, does not withhold personal income tax and does not submit 2-NDFL, 6-NDFL data on this individual’s income. All this is done by the individual independently (clause 2 of article 226, subclause 2 of clause 1, clause 2 of article 228 of the Tax Code of the Russian Federation, letter of the Ministry of Finance of Russia dated August 21, 2014 No. 03-04-06/41908).

EXAMPLE 4. SALE OF AN INDIVIDUAL’S SHARE TO AN INDIVIDUAL

In the example discussed earlier, Ivanov sold his share (25%) to Petrov. He could sell the asset at a certain market value. Let us assume that the sale was also carried out at the calculated actual value of the share for RUB 359,530.50. This value will be fixed in the purchase and sale agreement, and this indicator will be the basis for calculating personal income tax.

Ivanov reduced his income in accordance with the law by the amount of expenses for acquiring the specified share (RUB 250,000). Accordingly, the amount of taxable income was 109,530.50 rubles. (359,530.50 – 250,000).

In this case, Ivanov needs to independently calculate and pay 14,239 rubles to the budget. (RUB 109,530.50 × 13%).

Sale, assignment of shares legal entity will have its own characteristics, since taxation in this case will depend on what taxation system the selling company uses.

When applying the simplified tax system, an object of taxation will also arise in the form of the sale value of shares. Those who have the right to reduce income by the amount of expenses incurred will be able to take into account the purchase price of sold securities on the basis of subparagraph 23 of paragraph 1 of Article 346.16 of the Tax Code of the Russian Federation (see letters of the Ministry of Finance of Russia dated May 15, 2006 No. 03-11-04/2/105 , dated 04/29/2005 No. 03-03-02-04/1-107, dated 01/24/2011 No. 03-11-06/2/08, dated 10/06/2009 No. 03-11-06/2/201, dated 11/11 .2013 No. 03-11-06/2/47957).

But simplifiers who use the object of taxation “income” will pay 6% of the entire amount of income.

EXAMPLE 5. ASSIGNMENT OF A SHARE UNDER USN

Let's assume Granat LLC applies the simplified tax system. The company's share was transferred for 733,442.22 rubles. with an initial investment of 510,000 rubles.

In this case, the single tax will be:

If the object of taxation is income, tax at a rate of 6% will be 44,007 rubles. (RUB 733,442.22 × 6%).

If the object of taxation is income reduced by the amount of expenses, tax at a rate of 15% will be 33,516 rubles. ((RUB 733,442.22 – RUB 510,000) × 15%).

But the selling organization may also be common system taxation. Is the transaction required to be subject to VAT? Sales of securities (shares) on the territory of the Russian Federation are not subject to VAT (exempt from taxation) (subclause 12, clause 2, article 149 of the Tax Code of the Russian Federation). Invoices are not drawn up for such sales (subclause 1, clause 3, article 169 of the Tax Code of the Russian Federation).

And you will have to pay income tax. Subparagraph 4 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation states that when determining the tax base, income in the form of property is not taken into account. property rights, which are received within the limits of the contribution (contribution) by a participant of a business company upon exit (disposal) from the business company. That is, income is not taxed if its amount is less than or equal to the contribution of the retiring participant. If they are larger, then a tax arises on the difference.

The specifics of determining expenses when selling shares are described in subclause 2.1 of clause 1 of the Tax Code of the Russian Federation. Income from the sale of property rights (shares, shares) is reduced by the purchase price of these property rights (shares, shares) and by the amount of expenses associated with their acquisition and sale.

That is, translated into simpler language, the resulting difference is subject to taxation.

EXAMPLE 6. INCOME TAX WHEN SALE OF A SHARE

The profit from the transaction for the assignment of shares from Granat LLC amounted to RUB 223,442.22. Consequently, the income tax will be equal to 44,688 rubles. (RUB 223,442.22 × 20%).

Dmitry Kislov, Ph.D., expert

IN judicial practice There have been two different approaches to determining the value of the share of a participant in a limited liability company. These approaches are especially clearly visible when applying paragraph 2 of Art. 26 of the Federal Law “On Limited Liability Companies”, according to which, when a participant leaves the company, it is obliged to pay the participant the actual value of his share, determined on the basis of the company’s financial statements for the year during which the application to leave the company was submitted.

A number of decisions of district arbitration courts indicate that the amount of funds due to a participant leaving the company should be determined exclusively from the data accounting(rulings of the Federal Arbitration Court of the East Siberian District in case No. А74-1594/03-К1-Ф02-584/04-С2, Federal Arbitration Court of the West Siberian District in case No. Ф04/14-2239/А27-2003, Federal Arbitration Court of the North-Western District in case No. A26-5712/02-13, Federal Arbitration Court of the Ural District in cases No. F09-1115/04-GK and F09-40/04-GK, Federal Arbitration Court of the Central District in case No. A54- 2921/02-С9-С8-С17). This approach can be called the “accounting” method of determining the value of a share.

A different approach is set out in the decisions of the Federal Arbitration Court of the West Siberian District in case No. F04-7802/2004 (6012-A03-13) and the Federal Arbitration Court of the North Caucasus District in cases No. A32-10056/2003-17/207 and A53-15243 /02-С4-11). When adopting these judicial acts, the courts proceeded from the need to verify the reliability of the company’s accounting data, comply with the requirement for mandatory revaluation of fixed assets, and take into account market prices for property (for ease of presentation, we will call this approach “market”).

In accordance with paragraph 16 of the resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court Russian Federation dated December 9, 1999 N 90/14 “On some issues of application of the Federal Law “On Limited Liability Companies”, if a participant does not agree with the amount of the actual value of his share determined by the company, the court checks the validity of his arguments, as well as the company’s objections to based on the evidence presented by the parties, provided for by civil procedural and arbitration procedural legislation, including the conclusion of the examination carried out in the case. Thus, in this matter, the highest judicial authorities also proceed from the “market approach”.

We believe that this approach is consistent with the law, although, at first glance, it does not correspond to the letter of the law (Article 26 of the said Law).

By virtue of Art. 94 of the Civil Code of the Russian Federation, when a participant leaves a limited liability company, the participant must be paid the value of the part of the property corresponding to his share in the authorized capital of the company, in the manner, manner and within the time limits provided for by the law on limited liability companies and the constituent documents of the company.

Consequently, when determining the amount of funds to be paid to a retiring participant, the value of the company’s property is first determined (naturally, the company’s debts must be excluded from the total value of the property), and then the part of the value due to the participant. The value of property is understood as its real - market value, since the Code does not provide for the use of another type of value in these relations, and in all cases where the use of other types of value is intended (book value, residual, nominal, etc.), the legislation specifically stipulates This.

Thus, both the value of the retiring participant’s share and the value of the company’s property are determined in prices of one category - in market prices.

By the way, Art. 26 of the Federal Law "On Limited Liability Companies", while indicating the use of actual value, does not exclude the use of the "market approach". In general, if not for the wording of this article, it is unlikely that anyone would try to prove that the market value is not the actual value of the property, and the actual value is the market value. These concepts are identical, and such a concept exists not only in economics, but also in law.

Commenting on Art. 1105 of the Civil Code of the Russian Federation, which also talks about actual value, A.L. Makovsky (one of the developers of the code) points out that “the value of the property to be returned, determined “at the time of acquisition,” must be “valid”” (clause 1 of Article 1105). This obviously means the value of the relevant property for which, at the time of its receipt by the unjustly enriched acquirer, it could have been purchased in open market trade." *(1) .

According to Art. 7 of the Federal Law "On Valuation Activities" (the title of the article is "Assumption about establishing the market value of the valuation object") if in the regulatory legal act, containing a requirement for a mandatory assessment of any valuation object, or the agreement on the valuation of the object does not define a specific type of value of the valuation object, the market value of this object is subject to determination. This rule is also subject to application in the case of the use in a normative legal act of terms not provided for by this Federal Law or valuation standards that define the type of value of the valuation object, including the terms “true value”, “reasonable value”, “equivalent value”, “real value” "and others. Thus, this law proceeds from the fact that the concepts of “actual” and “market” value coincide; the organization is obliged to determine the market value at the end of the year.

Of course, this law regulates only relations in the field of valuation activities. However, it is difficult to find arguments in favor of the fact that when conducting an assessment, the actual price should correspond to the market price, but in other cases it should not. Without a doubt, there are no obvious obstacles to applying when interpreting Art. 26 of the Federal Law “On Limited Liability Companies” concludes that the concepts of “real” and “market” value coincide by analogy (Article 6 of the Civil Code of the Russian Federation).

It should also be noted that, according to Art. 94 of the Civil Code of the Russian Federation, the law on limited liability companies determines only the procedure, method and timing of payment of the cost of the share, but not its size. And the norms of civil legislation contained in other laws must comply with this Code (clause 2 of article 3 of the Civil Code of the Russian Federation). Thus, if we assume that the law on companies establishes a different amount of payments than the Civil Code of the Russian Federation, i.e. the code is subject to application, that is, these sizes must be determined based on market prices, and not according to balance sheet data.

In our opinion, there are no contradictions between the code and the law; at least, they are not significant. This becomes obvious if you pay attention to the procedure for establishing the actual value.

By virtue of Art. 1 of the Federal Law “On Accounting”, all organizations must ensure the formation of complete and reliable information about their property status. Article 12 of the said Law establishes that in order to ensure the reliability of accounting data and financial statements, organizations are required to conduct an inventory of property and liabilities, during which their presence, condition and valuation are checked and documented. Carrying out an inventory is mandatory, in particular, before preparing annual financial statements.

Obviously, only that which reflects the value of the property at which the property can be sold, i.e. the market value, can be recognized as reliable information about the property status.

This is also expressed in by-laws. Thus, in paragraph 41 of the order of the Ministry of Finance of the Russian Federation dated October 13, 2003 N 91n “On approval Guidelines on accounting of fixed assets" states: "Revaluation of fixed assets is carried out in order to determine the real value of fixed assets by bringing the original cost of fixed assets in accordance with their market prices and reproduction conditions on the date of revaluation."

Thus, when preparing annual financial statements, which are used to determine the actual value of property, the company must draw up a balance sheet based on inventory, and this, in turn, must be based on market prices.

It is also worth paying attention to how the issue of determining the amount of payment to a participant is resolved in organizations of other forms. By law, the same rules as in relation to a limited liability company are established in relation to other forms of organizations, in particular general partnership(Article 78 of the Code), production cooperative (Article 111 of the Code, Article 18 of the Federal Law “On Agricultural Cooperation”).

Special rules apply in joint stock companies. The legislation does not provide for the possibility of exiting joint stock company, however, it contains an institution similar to the payment of a share to a company participant - the repurchase of shares at the request of shareholders (Article 75 of the Federal Law "On Joint-Stock Companies").

Shareholder legislation clearly indicates the need to apply a “market approach”. So, in paragraph 3 of Art. 75 of the said Law states: “The repurchase of shares by the company is carried out at a price determined by the board of directors (supervisory board) of the company, but not lower than the market value, which must be determined by an independent appraiser without taking into account its change as a result of the actions of the company that gave rise to the right to demand valuation and repurchase shares." According to Art. 77 of the Law, in cases where the repurchase price of a company’s issue-grade securities is determined by a decision of the board of directors (supervisory board) of the company, it must be determined based on their market value.

It should be noted that deviation from the “market approach” contradicts the principles of equality of participants and the requirements of fairness and integrity (Articles 1 and 6 of the Civil Code of the Russian Federation). When calculating the value of a share based on the book value of the company’s property, which differs significantly from its market value, the withdrawing participants find themselves in an unequal position with the remaining participants, whose share in the event of liquidation of the company will be proportional to the value of the company’s property received from the sale of property at market prices, regardless of accounting data.

Determining the value of the share to be paid to the retiring participant without taking into account the market value of the property creates the basis for abuses and violations of the interests of not only the retiring participants of the company, but also the company itself, since if the value of the property is inflated, the company will be forced to pay the retiring participant more than it is due. Thus, if the value determined on the balance sheet is twice as high as the market value, the retiring participant owning a 50% share in the authorized capital must be paid the market value of all the company’s property. In this case, the company will be forced to sell all its property in order to pay off the participant who owns only 50% of the share in the authorized capital, and the remaining participants will be left with nothing.

Judicial practice shows that the use of the “accounting” method often upsets the balance of interests of participants leaving the society and the society (participants remaining in it). This may be justified by the need to stimulate entrepreneurship. This justification is not entirely correct. Imagine yourself as someone thinking about where to invest your money. Would you decide to transfer your money to an organization, knowing that when you leave it, you may get back much less than the organization earns from your funds? In addition, you will have to wait for a refund for at least six months, or even a full year and a half (if you submit an application for withdrawal on January 1, 2006, payment of your share due may take until June 31, 2007). Also remember that from January 1, 2007 to June 31, 2007, you will not receive any payment for the money you are owed. You should also keep in mind that you should not count on the integrity of your debtor. It is likely that by the date the actual value of the property is determined, the size of net assets will, thanks to the efforts of the head of the company and other interested parties, be as close as possible to zero. In addition, from the moment you submit the application, you will lose the rights of a participant in the company, and therefore the possibility of even minimal control over the activities of the company. It seems that the answer to our question is obvious; if you are not an altruist, a limited liability company in your eyes has scanty investment attractiveness. Sorry, there is one exception. If you are the leader of a society, the attractiveness of the latter increases sharply.

It also seems absurd to “break” legal relations in the period between filing an application for withdrawal and determining the amount of funds to be paid to the withdrawing participant. The rights of a company participant are terminated from the moment of application, but it is premature to talk about the emergence of a monetary obligation to pay the cost of the share, since the amount of payments has not been determined. No less absurd is the fact that determining the size of the monetary obligation depends on the debtor (he can influence the size of the debt both through “incorrect” accounting and by withdrawing property from the ownership of the company). Is it possible to imagine that the buyer determines the cost of the purchased item? WITH with great difficulty. But in the relationship between the retiring participant and society, for some reason this is considered normal.

As we see, even the use of a “market approach” does not guarantee respect for the rights and interests of the retiring participant. " High tech“minimizing net assets allows you to leave a participant who has left the company with nothing.” It seems necessary to make changes to the legislation that would reduce the “risk” of a participant leaving the company. These changes may concern either the introduction of certain control over the activities of the company on the part of those leaving the company participants, or maintaining the rights of the participant until the full payment of the value of the share, or determining the value of the participant’s share as of the date of drawing up the last (before filing an application for withdrawal) balance sheet.

In our opinion, termination of the rights of a participant should entail the emergence of a monetary obligation, and during the period of use in cash the company must pay interest corresponding to the bank interest rate.

In the interests of society, installment payments may be established and certain restrictions on the amount of payments may be established. Thus, it can be provided that the company allocates funds in the amount of net profit for settlements with retired participants, but is obliged to fully pay the cost of the share within a certain period.

Yu.V. Shirvis, Chairman of the Judicial Staff of the Federal Arbitration Court of the North Caucasus District

─────────────────────────────────────────────────────────────────────────

The company is obliged to pay the participant who submitted an application to leave the company the actual value of his share in the authorized capital within three months from the date the corresponding obligation arises (unless a different period or procedure for such payment is provided for by the company’s charter).

With the consent of this participant, the company has the right to give him in kind property of the same value, in case of incomplete payment by him of the share in the authorized capital of the company - the actual value of the paid part of the share (Clause 6.1, Article 23 of the Federal Law of 02/08/1998 No. 14-FZ “On Limited Liability Companies”, hereinafter referred to as Law No. 14-FZ).

Starting from January 1, 2016, a participant’s application to leave the company requires notarization (Article 3 of the Federal Law of March 30, 2015 No. 67-FZ).

Methodology for calculating the actual value of a share

The size of the share of a company participant in the authorized capital of the company is determined as a percentage or as a fraction. The actual value of a participant’s share corresponds to part of the value of the company’s net assets, proportional to the size of his share (Clause 2 of Article 14 of Law No. 14-FZ).

The actual value of a share (part of a share) in the authorized capital is paid out of the difference between the value of the company's net assets and the size of its authorized capital. If such a difference is not enough, the company is obliged to reduce its own by the missing amount. The company also does not have the right to pay the actual value of the share if at the time of payment (or issuance of the share in kind of property) the company meets the criteria of bankruptcy (clause 8 of Article 23 of Law No. 14-FZ).

If the company's net assets are negative, the actual value of the share is not paid to the participant.

Calculation of the actual value of a share can be represented by the general formula:

The actual value of the share = the size of net assets x the size of the participant’s share in the authorized capital.

In the event that the actual value of the share is greater than the amount of net assets reduced by minimum size of the authorized capital, then the participant is paid part of the actual value of the share (clause 8 of Article 23 of Law No. 14-FZ).

The procedure for calculating the value of net assets is determined by Order of the Ministry of Finance of the Russian Federation dated August 28, 2014 No. 84n. Net assets are the difference between the assets and liabilities of the balance sheet.

The most pressing issue, causing numerous legal disputes, is the valuation of property on the company’s balance sheet.

As noted by senior judges, the actual value of a share in the authorized capital of a company upon the withdrawal of its participant is determined taking into account the market value of real estate reflected on the balance sheet of the company at the time of withdrawal (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 06/07/2005 No. 15787/04, dated 09/06 .2005 No. 5261/05, dated 09.29.2009 No. 6560/09).

Important!

According to the legal position of the Presidium of the Supreme Arbitration Court of the Russian Federation, set out in Resolution No. 16191/11 dated April 17, 2012, the actual value of a share in the authorized capital of a company upon the exit of its participant

determined taking into account the market value of real estate on the company’s balance sheet. Arbitration courts are also guided by this position (Resolution of the Central District Arbitration Court dated June 29, 2016 No. A14-11017/2014, decision of the Moscow Arbitration Court dated August 11, 2016 No. A40-8084/2012).

When calculating the actual value of the share, it should be taken into account that the VAT received from the buyer for the upcoming sale of assets does not affect the price of the net assets. And refundable VAT (i.e. 19 account) is taken into account when calculating net assets (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 10, 2013 No. 3744/13).

Determining the reporting period for calculating the share

As a general rule, the actual value of the share is determined on the basis of the accounting data for the last year preceding the date of presentation of the claim to foreclose on the share of the participant for his debts.

The actual value of the share is determined on the basis of the financial statements compiled as of the last reporting date (clause 29 of the Regulations on accounting and reporting, approved by order of the Ministry of Finance of the Russian Federation dated July 29, 1998 No. 34n).

However, there is no consensus among the courts as to what is meant by “last reporting date”. Thus, in the Resolutions of the Administrative Court of the North Caucasus District dated December 3, 2015 No. A53-17251/2013, the Moscow District dated August 13, 2015 No. A40-127386/11-137-451, the Seventh Arbitration Court of Appeal dated November 13, 2015 No. 07AP-9339/15, decision of the AS of the Sverdlovsk region dated May 30, 2016 No. A60-50788/2015, it is noted that such a date is the last calendar day of the month preceding the month the application was submitted (received by the company).

For example

The creditor submitted the claim in September 2016, therefore, the financial statements for January – August 2016 are taken as the basis for determining the actual value of the share.

The opposite decision was made in the Determination of the AS of the West Siberian District dated July 26, 2016 No. A70-10773/2015. The court did not accept the arguments of the cassation appeal that for a participant who left on May 19, 2015, the company was obliged to calculate the market value of net assets based on the property status of the company as of April 30, 2015. The judges recognized it as legitimate to calculate the actual value of the share based on from the market value of net assets as of March 31, 2015. A similar position (calculation period is the previous quarter) is also taken by some arbitration courts(Resolutions of the AS of the West Siberian District dated November 13, 2015 No. F04-26688/15, FAS of the Ural District dated March 17, 2014 No. F09-4725/12, Third Arbitration Court of Appeal dated November 12, 2015 No. 03AP-4588 /15).

In another case, the court noted that the need to prepare interim financial statements is due to the obligation established by law to submit them to the regulatory authority. As of the date the company became obligated to pay the actual value of the share, there was no obligation to prepare interim financial statements, since it was not due to the need to submit them to the tax authority; therefore, the company had the right not to prepare them. Therefore, the court considered the last reporting period to be 2013 (the requirement for the participant to leave the company was announced on 04/04/2014), and therefore, the actual value of the share must be established as of 12/31/2013 (Resolution of the Fifth Arbitration Court of Appeal dated 18.08. 2016 No. A51-19547/2014 and dated 08/09/2016 No. A59-5321/2013, Ninth Arbitration Court of Appeal dated 02/02/2016 No. A40-209925/2014).

Important!

For untimely payment of the actual value of the share, a participant who has left the LLC has the right to demand from the company the payment of interest for the unlawful use of other people's funds (Resolution of the AS of the West Siberian District dated July 20, 2016 No. A70-7000/2015).

home » Useful » Determination of the actual value of property. How to calculate the share when a participant leaves an LLC? Change in the nominal value of the share of a participant - an individual