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

How does a founder forgive his company's debt?

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

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

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

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

Tax accounting

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

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

Important nuance: Regardless of the size of the founder’s share in the authorized capital of the organization, interest on a loan agreement to the company (if provided for) is in any case included in the tax base of the business entity if the debt is forgiven.

Accounting

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

• LOAN 91 (subaccount “Other income”);
• DEBIT 66 (if the loan is short-term) or DEBIT 67 (if the loan is long-term).

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

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

• DEBIT 68 (sub-account “Tax calculations”);
• CREDIT 99.

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

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

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

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

• DEBIT 51;
• CREDIT 66.

The transaction amount corresponds to the loan amount. The following can be used as primary documents:

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

2. After the conclusion of the contract about debt write-off, the entries discussed above are recorded in the accounting registers.

The following can be used as primary documents:

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

Summary “Q&A”

How to legally formalize debt write-off by the founder?

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

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

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

How is a company's forgiven debt reflected in its accounting records?

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

How the document will allow you to save money. If there is debt to companies belonging to the same group, the most obvious way to reduce the “creditor” is to transfer such debt to the status of equity, including through debt forgiveness. From a tax point of view, such debt forgiveness will not lead to an increase in the tax burden due to the use of subclause 3.4 of clause 1 of Article 251 of the Tax Code of the Russian Federation. This rule states that when a debt is forgiven by the founder in order to increase the value net assets subsidiary company, the latter's income received as a result of such forgiveness is not subject to income tax.

Let us recall that this rule has been in force since 2011, but applies to obligations arising from January 1, 2007 (clauses 1 and 2 of Article 4 of Law No. 409-FZ dated December 28, 2010). This means that the founders can profitably forgive the debts of their “subsidiaries” not only at the moment, but also reconsider their past tax obligations. This rule applies only to business companies and partnerships. That's why non-profit organizations, as well as production cooperatives and unitary enterprises do not have the right to apply it (letter of the Ministry of Finance of Russia dated October 6, 2011 No. 03-03-07/39).

The purpose of such a benefit is to allow founders to improve their financial indicators their subsidiaries. This is important, for example, for attracting financing from third-party investors. Banks and investment companies When providing financing, the structure of the borrower’s balance sheet is preliminarily assessed. No one will give a loan to a company with negative net assets.

Another possible reason for the increase in net asset value is the prospect of selling a subsidiary. The higher the net asset value, the higher market price shares or shares of the subsidiary. As a result, it becomes possible to sell the business at a higher price.

With a small net asset value, the company may encounter other problems. For example, this indicator is taken into account when calculating the limit for recognizing interest on controlled debt (clause 2 of Article 269 of the Tax Code of the Russian Federation). The higher the net assets, the greater the amount of interest recognized as expense. In addition, legislation prohibits a company from distributing profits and paying dividends if the value of its net assets is less than its authorized capital. Or it will become less as a result of such payment (clause 1, article 29 of the Federal Law of 02/08/98 No. 14-FZ, clause 1 of article 43 of the Federal Law of December 26, 1995 No. 208-FZ). In this case, the assessment of the value of net assets must be carried out quarterly and at the end of the year on the corresponding reporting dates (clause 5 of the Procedure for assessing net assets in joint stock companies, approved by order dated January 29, 2003 of the Ministry of Finance of Russia No. 10n and the Federal Commission for the Securities Market of Russia No. 03-6/pz). The same Procedure is also used by companies of other organizational and legal forms, in particular LLCs (letters of the Ministry of Finance of Russia dated January 27, 2010 No. 03-02-07/1-27, dated December 7, 2009 No. 03-03-06/1/791) .

Please note that there is a risk of debt forgiveness being reclassified as a gift within a group of companies. And donation between legal entities is a void transaction (subclause 4, clause 1, article 575 of the Civil Code of the Russian Federation) with all the ensuing consequences (clause 8, article 250 of the Tax Code of the Russian Federation). But the Presidium of the Supreme Arbitration Court of the Russian Federation directly recognized the possibility of forgiveness of debt between companies (Resolution No. 2833/10 dated July 15, 2010).

But tax authorities may make another claim. Allegedly, as a result of debt forgiveness, no gratuitous transfer of property occurs, therefore, this operation, in whole or in part (in the amount of interest - letter of the Federal Tax Service of Russia dated 05/02/12 No. ED-3-3/1581@) does not fall under the benefit. But the courts do not agree with this approach (resolution of the Federal Arbitration Court of the West Siberian District dated December 22, 2011 No. A27-4570/2011).

Let us note that previously affiliated companies had the opportunity to transfer assets to each other in a tax-free regime (subclause 11, clause 1, article 251 of the Tax Code of the Russian Federation). However, the new option (subclause 3.4, clause 1, article 251 of the Tax Code of the Russian Federation) has a number of advantages.

Firstly, the size of the participant’s share for using the benefit provided for in subclause 3.4 of clause 1 of Article 251 of the Tax Code of the Russian Federation does not matter (letters of the Ministry of Finance of Russia dated 04.20.11 No. 03-03-06/1/257, dated 03.21.11 No. 03- 03-06/1/160, Federal Tax Service of Russia dated 05/23/11 No. AS-4-3/8157@). Secondly, even if the subsidiary transfers the received property to third parties, it will not lose the right to the benefit (letters from the Ministry of Finance of Russia dated 04/18/11 No. 03-03-06/1/243, dated 02/20/12 No. 03-11-06/ 2/26). Thirdly, the risk of recognizing forgiven interest in the borrower’s income is reduced. Since subclause 3.4 of clause 1 of Article 251 of the Tax Code of the Russian Federation applies not only to property received free of charge, but also to property rights.

Perhaps the only drawback of the new benefit is the restrictions on the number of persons who can use it. It can be used to increase the net asset value of a subsidiary only. While subclause 11 of clause 1 of Article 251 of the Tax Code of the Russian Federation allows the debts of the parent company to be forgiven.

In what form is it compiled? Despite the fact that debt forgiveness can be a unilateral transaction (Article 415 of the Civil Code of the Russian Federation), it is best to draw up a bilateral written agreement between the creditor and the debtor. The agreement is concluded in the same form as the contract under which obligations are terminated (clause 1 of Article 452 of the Civil Code of the Russian Federation).

What must be in the document. This agreement must specify under which agreement the debt was created, its size, repayment date, and for what reason the debtor cannot fulfill its obligations. As well as the focus of debt forgiveness on replenishing the company’s net assets and the business purpose of such replenishment.

Additional security measures. In order to avoid possible claims from tax authorities, it is necessary to fulfill all the requirements of subclause 3.4 of clause 1 of Article 251 of the Tax Code of the Russian Federation. In addition to the agreement, the company should also draw up corporate documents on the basis of which the debt will be forgiven. For example, the minutes or decision of the general meeting of participants or shareholders of the company. Under which property, property or moral rights are transferred to a company to increase the net asset value.

It is also advisable to indicate in the protocol what the purpose of increasing the value of the company's net assets is. With the help of such a document, the company will most likely be able to remove the claims of controllers without bringing the matter to trial.

Also, when using debt forgiveness within a group of companies, it is necessary to evaluate the total tax savings due to the impossibility of taking into account the amount of the debt in the expenses of the forgiving party. Since controllers will consider such a transaction as a gratuitous transfer of funds (clause 16 of article 270 of the Tax Code of the Russian Federation). Therefore, a group of companies should determine the qualifications of such a transaction and the benefit used. If the debtor does not include the amount of debt as income, then the creditor should exclude this amount from expenses for tax purposes.

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Hello. I understand that you have an LLC?

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Hello!

An exhaustive list of income not taken into account when determining tax base for income tax, established in Art. 251 NK.

the federal law dated December 28, 2010 N 409-FZ “On amendments to certain legislative acts Russian Federation in terms of regulating the payment of dividends (profit distribution)” expanded the list of income not taken into account when determining the tax base for corporate income tax.

As a result, based on paragraphs. 3.4 clause 1 art. 251 of the Tax Code exempts income in the form of property from taxation, property rights or non-property rights in the amount of their monetary value, which are transferred to the business company in order to increase net assets, including through the formation of additional capital, by the relevant participants.

This rule also applies to cases of an increase in the net assets of a business company with the simultaneous termination of the obligations of the business company to the relevant participants, if such an increase in net assets was, in particular, a consequence of the will of a participant in the business company.

The company has not fulfilled the counter-obligations stipulated by the loan agreement, and the participant (you) makes a decision to increase the net assets (by forming additional capital) of the company at the expense of the previously transferred above-mentioned property and property rights with the simultaneous termination of the company’s obligations to its participants.

In this regard, for such a situation it is possible to apply paragraphs. 3.4 clause 1 art. 251 of the Tax Code and not take into account income in the form of funds transferred by its participants when determining the tax base for income tax.

Good afternoon, Katerina!

Yes, such a possibility exists:

Article 19 of the Federal Law “On Limited Liability Companies” Increase in the authorized capital of the company due to additional contributions of its participants and contributions of third parties accepted into the company

1. The general meeting of the company's participants, by a majority of at least two-thirds of the total number of votes of the company's participants, if the need for a larger number of votes to make such a decision is not provided for by the company's charter, may decide to increase the authorized capital of the company by making additional contributions by the company's participants. Such a decision should determine the total cost of additional contributions, and also establish a uniform ratio for all participants in the company between the cost of an additional contribution of a company participant and the amount by which the nominal value of his share is increased. This ratio is established based on the fact that the nominal value of a company participant’s share can increase by an amount equal to or less than the value of his additional contribution.

Each participant in the company has the right to make an additional contribution not exceeding part of the total cost of additional contributions, proportional to the size of the share of this participant in the authorized capital of the company. Additional contributions may be made by the company's participants within two months from the date of adoption by the general meeting of the company's participants of the decision specified in paragraph one of this clause, unless a different period is established by the company's charter or the decision of the general meeting of the company's participants.

No later than one month from the date of expiration of the period for making additional contributions, the general meeting of the company's participants must make a decision on approving the results of making additional contributions by the company's participants and on introducing changes to the company's charter related to increasing the size of the company's authorized capital. In this case, the nominal value of the share of each participant in the company who made an additional contribution increases in accordance with the ratio specified in paragraph one of this paragraph.

2. The general meeting of company participants may decide to increase its authorized capital on the basis of an application from a company participant (applications of company participants) to make an additional contribution and (or), unless prohibited by the company’s charter, an application from a third party (applications from third parties) to accept him into society and making a contribution. This decision is made unanimously by all members of the company.

The application of a company participant and the application of a third party must indicate the size and composition of the contribution, the procedure and deadline for making it, as well as the size of the share that the company participant or third party would like to have in the authorized capital of the company. The application may also indicate other conditions for making contributions and joining the company.

Simultaneously with the decision to increase the authorized capital of the company on the basis of an application of a company participant or statements of company participants about making an additional contribution by him or them, a decision must be made to amend the company’s charter in connection with the increase in the authorized capital of the company, as well as a decision to increase nominal value shares of a company participant or shares of company participants who submitted applications for making an additional contribution, and, if necessary, a decision to change the size of shares of company participants. Such decisions are made unanimously by all participants in society. In this case, the nominal value of the share of each company participant who submitted an application to make an additional contribution increases by an amount equal to or less than the value of his additional contribution.

2.1. An application for state registration of the changes in the company's charter provided for in this article must be signed by the person performing the functions of the sole executive body of the company. The application confirms that the company's participants have made additional contributions or contributions by third parties in full. For three years from the date of state registration of the relevant changes in the company's charter, the company's participants jointly and severally bear, if the company's property is insufficient, subsidiary liability for its obligations in the amount of the cost of additional contributions not made.

The specified application and other documents for state registration of changes provided for in this article in connection with an increase in the authorized capital of the company, an increase in the nominal value of shares of company participants who made additional contributions, the admission of third parties to the company, determination of the nominal value and size of their shares and, if necessary, with a change the size of the shares of the company's participants, as well as documents confirming that additional contributions or contributions by third parties have been made in full by the company's participants, must be submitted to the body carrying out state registration legal entities, within a month from the date of the decision to approve the results of making additional contributions by the company's participants in accordance with paragraph 1 of this article or making additional contributions by the company's participants or third parties based on their applications.

For third parties, such changes become effective from the moment of their state registration.

3. If the increase in the authorized capital of the company has not taken place, the company is obliged to return, within a reasonable period of time, the participants of the company and third parties who made deposits in money, their contributions, and in case of non-return of deposits, specified period also pay interest in the manner and within the time limits provided for in Article 395 of the Civil Code of the Russian Federation.

To participants of the company and third parties who have made non-monetary contributions, the company is obliged to return their deposits within a reasonable period of time, and in the event of non-return of deposits within the specified period, also to compensate for lost profits due to the inability to use the property contributed as a contribution.

4. By decision of the general meeting of the company’s participants, adopted unanimously by all the company’s participants, the company’s participants, in exchange for their additional contributions, and (or) third parties, in respect of their contributions, have the right to set off monetary claims against the company.

Good luck to you!

Sincerely,
Vasiliev Dmitry.

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Hello Katerina, indeed, the Ministry of Finance of the Russian Federation has expressed its position regarding the taxation of an LLC participant when increasing the size of the authorized capital and the nominal value of the shares of the participants of this company due to additional capital (without changing the size of the shares themselves) in a letter dated May 25, 2007 N 03-03-06 /1/324:

“The list of income not taken into account when determining the tax base for income tax, established by Art. 251 of the Tax Code of the Russian Federation, does not contain such type of income as the income of a participant in an organization in the form of an increase in the nominal value of his share in the authorized capital of the organization.

Thus, when a limited liability company increases its authorized capital without changing the shares of its participants, the taxpayer who is a participant in this company receives non-operating income, taken into account when assessing corporate income tax, in the amount of the increase in the nominal value of his share in the authorized capital of the limited liability company.”

Since you are the lender and the founder, it is possible to change the subject of the loan agreement in such a way that the loan (the result of the loan) will be a contribution to the authorized capital.

One option is that the owner, having already officially entered the business, can forgive the company’s debt in order to increase its net assets. This instrument is attractive because it exempts the organization from paying income tax.

Advantages and disadvantages of contribution to net assets

For ease of understanding, we list them:

• Any participant in the company can make a contribution to net assets: a legal entity or an individual, regardless of the size of the share in the authorized capital (for comparison: a contribution to property on the basis of paragraph 11, paragraph 1, Article 251 of the Tax Code can only be made by a participant with a share of more than 50%) ;
• when contributing to a private equity fund, there are no restrictions on the subsequent disposal of property within a year from the date of transfer (the one-year limit is established by clause 11, clause 1, article 251 of the Tax Code);
• property, as well as property and non-property rights (including rights of claim under a loan, etc.) having a monetary value can be transferred;
• however, only a participant/shareholder can make a contribution in order to increase the NAV (a “child gift” is not possible - transfer of property from a subsidiary to the parent company);
• this instrument is applicable only to business partnerships and companies (JSC, LLC, etc., but not applicable to production cooperatives, business partnerships);
• When investing in a private equity fund, there is no increase in the authorized capital of the company.

You can use the contribution to the Cha that we already know! Retail companies establish entity(let’s designate it as an investment center) and make agreed funds received from the sale of products as contributions to the property in order to increase the NA. There is no need to pay income tax and the investment center can freely manage the participants’ money, for example, by investing it in new areas of activity.

Thus, contributions to the company’s net assets are not taxed on the income of the receiving party (in this case, the debt in the form of the amount of interest on the loan, written off by debt forgiveness, on the basis of paragraph 18 of Article 250 of the Tax Code of the Russian Federation is subject to inclusion in the non-operating income of the debtor organization) .

What if you transfer not money, but property?

In this case, the restored value added tax can be included in expenses. But the receiving party will not be able to deduct VAT, since it did not pay money for this property, because a contribution to property is a type of gratuitous transfer. So you can’t do without a fly in the ointment...

Now let's see what's interesting about using this tool in legal disputes.

Arbitrage practice

At the same time, the courts pay attention to the reality of the increase in the taxpayer’s net assets. For example, sending case No. A22-4288/2015 for a new trial to the court of first instance, the cassation court ordered the lower court to examine the taxpayer’s accounting and tax documentation confirming (or refuting) the actual increase in his net assets, and the reflection of this operation in the company’s balance sheet for the corresponding calendar year.

In another example, the tax authority challenged the reality of the founder’s contribution to net assets, which was stated to be the right of claim against the taxpayer purchased from the creditor (No. A53-31131/2015). The courts supported the tax authority that initially the services were provided fictitiously, in order to inflate VAT deductions, and the accumulated accounts payable were assigned to the founder only for show. Thus, the taxpayer tried to avoid non-operating income in the amount of unclaimed (bad) accounts payable.

What about bills?

Whereas the company's further transfer of this bill of exchange to a third party to pay off accounts payable is already subject to taxation (see cases No. A53-20551/2015, A41-39593/2015): the taxpayer has the right to include only the costs of selling the bill of exchange as expenses for profit tax purposes.

More controversial points

Finally, what happens if the founder decided to contribute to the private equity company, but at the time of the actual transfer of funds managed to withdraw from the membership? There was such a dispute in judicial practice and ended in favor of the taxpayer! Let us note that the decision to contribute to the property in order to increase the NA was made by the only participant before he left the company. Whereas the contribution of 10 million rubles (in two tranches) was transferred two months after the composition of the LLC’s participants changed.

As the court of first instance indicated, the obligation to contribute to the property of the company, accepted by its sole participant, had to be fulfilled by this participant even if he alienated his share. The Court of Appeal, on the contrary, supported the tax authorities, insisting that the funds received by the taxpayer from the former participant were gratuitously received property.

The cassation court put an end to this dispute, in its opinion, the participant’s obligation to provide financial assistance to the company does not pass to the acquirer of the share, and the moment of the actual transfer of the amount of money to the taxpayer does not change the qualification of this contribution as income of the taxpayer received in the form of property transferred by the participant of the economic society in order to increase net assets (see case No. A40-21501/2014). Unfortunately, more detailed information there are no details of the transaction for the alienation of a participant’s share in the case materials (which would make it possible to assess whether the position of the cassation court in this case is an isolated case or this decision is justified).

The Ministry of Finance of the Russian Federation, meanwhile, takes the opposite position and regards the contribution of a former participant as non-operating income: if on the date of concluding the agreement on debt forgiveness (consider the date of making the contribution, and not making a decision about it) the person was not a participant in the company, then the benefit income tax does not apply.

Conclusion

Remember: having forgiven a debt to the company, its new participant should not immediately leave the shareholders (participants). Otherwise, the tax authority will say that the lender did not intend to participate in the company’s activities and receive profit from this activity, and his only goal in entering the business was to forgive debt and exclude taxation for the company.

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 a 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 Regulations on accounting“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 under consideration are reflected in the accounting accounts 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 entries.

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

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