Разрешить написание латиницей As interdependent entities arrange the transfer of property: contribution to the CC and the contribution of pr - 21 September 2011

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15:39 Разрешить написание латиницей As interdependent entities arrange the transfer of property: contribution to the CC and the contribution of pr
We continue to analyze how the transfer of property between "their" organizations. Earlier we wrote about the donation (see "How interdependent parties formalize the transfer of property: gift"). And now let's talk about another popular option that allows you to legally transfer property from one organization to another, "for good" - a contribution to charter capital. The legislation provides not one but two versions of the transfer of assets from shareholders or members, respectively, to AO, or LLC. The first of these - well-known contribution to charter capital, and the second - a contribution to the property. We consider each of them in detail. Legal Issues It is widely believed that the contributions to the charter capital can only be done by creating an organization where there is a formation of the capital itself. It is not. The legislation allows for an increase in the share capital and for long-existing organizations, which is an advantage of this method of transfer of property as a contribution to charter capital. And when you consider that in this case, both companies actually controlled by one owner, the problems with the legal registration of the decision to increase the Criminal Code will not be. However, here it is worth noting that the capital increase calls for changes in the constituent documents and registration of the changes. But this procedure is associated with a certain amount of time and money. Another advantage of this method is that the contribution to the Criminal Code can be not only money but also any other assets: securities, things, property rights, other rights having monetary value. However, the introduction of "merchandise" contributions must be remembered that they need to give a monetary value. The estimate is performed by the company itself (or rather, the general meeting), only under the condition that the value of shares in payment for property which is transferred shall not exceed 20 thousand. More "expensive" contributions of property require the use of the appraiser and, therefore, the cost of his services. Completing a small legal literacy campaign, as we have a very important condition: the contributions to the authorized capital can do only organization which is a shareholder or member of society. Accordingly, if such a relationship between the "donor" and "recipient" is not, then the method under consideration can not be applied (by the way, do not forget that on each occasion the participation of one organization to another, you must notify the tax office (podp. 2 paragraph 2 of Art. 23 NC RF)). Taxes on contribution to the Criminal Code Now let's talk about taxes. Let's start with the transferor, in which there is no complexity to the taxation of the transfer fee. The cost of contribution to charter capital of the costs are not taken into account (Section 3, Article. 270 Tax Code). As regards VAT, the transfer of property as a contribution to charter capital to recover tax on the transferred property that was previously accepted as deductions. In this case the VAT on fixed assets reduced in proportion to their residual (book) value (podp. Section 3, Article 1. 170 Tax Code). To make such a recovery to a period when there was an actual transfer of property. Refurbished tax should be reflected in book sales, pointing out details of the original invoice - that, based on which VAT was taken to a deduction for the purchase of the property. Obviously, it can be done only if the document is preserved in the organization. If not, you'll need to prepare a certificate in accounting and sales book to refer to it. Such advice gives the Ministry of Finance (see letter from 20.05.08 № 03-07-09/10). The reduced so the amount of VAT to transfer to the budget on general grounds. At the same time take into account this amount of expenditure tax authorities prohibit (see letter UFNS Russia in Moscow from 05.07.06 № 19-11/058862), although it is formally banned in paragraph 19 of article 270 of the Tax Code does not fall. The fact is that in this case there is no buyer of the property (because it entered into the charter capital, and is not for sale) and, accordingly, the tax is not imposed on the receiving side. Not subject to such amounts and under paragraph 3 of Article 270 of the Tax Code, for their own contribution to charter capital, they are not. This conclusion is confirmed by the way, the text of subparagraph 1 of paragraph 3 of Article 170 of the Tax Code, which states clearly: the amount of reduced VAT does not increase the cost of shares purchased by the depositor. Also pay attention to the next. With the transfer of property in the authorized capital of the invoice amount is not necessary, although the recipient has the right to deduct tax. Here, the Tax Code does allow relief and indicate the amount of reduced VAT (which the recipient then take the deduction) in the act of reception and transmission (podp. 1, No. 3, Art. 170 Tax Code). We now turn to the side of the receiver material contribution to charter capital. He has, as we pointed out above, there is a right to deduct the amount of VAT, which restored the transferor (paragraph 11 of Art. 171 of the Tax Code). By deduction put the amount specified in the act of reception and transmission. It should also be reflected in book purchases (Section 8 of the Rules for book purchases and sales of books, approved by RF Government Decree of 02.12.2000 № 914). As regards income tax, there is also simple enough - fixed assets received as a contribution to the charter capital can depreciate. In this initial value is determined based on the value (residual value) of the property according to tax records the transferor (Section 1, Art. 277 Tax Code). These data are taken at the date of actual transfer of the property. Simply put, after receiving the property, the organization can continue to charge depreciation on it since the 1st of the month following the month in which the object was put into operation. So if properly podgadat with dates of actual transfer of property and putting it into operation (conducting these operations towards the end of the month), a break in the depreciation of the object will not be. Thus, in terms of property transfer tax by way of contribution to charter capital is very attractive because the extra tax is not paid. Judge for yourself: the VAT recovered by the transmitting side, are deductible by the recipient of the property. Depreciation is calculated on an object in the usual manner before the transfer of property, and after. Contribution to the property The second way to transfer property, which we are reviewing today, is to contribute to the assets of the organization. Immediately make a few reservations. First, use this option only with respect to the Company. Second, the "donor" should take part officially in the company - "recipient" (or vice versa, "recipient" must participate in the LLC - the "donor"). Third, the share of the participation must exceed 50 percent - or taxes arising in connection with such transaction, would deprive it of all meaning. But more on that later. As the advantages of this method, you can specify the transfer of property is no need to make changes in the constituent documents, as contributions to the property of the organization does not affect its share capital. And time is not necessary to make changes to documents, and do not need to register these changes in the tax. That, in turn, means there is no financial cost and effort. Another plus of this option - at any cost deposit is not necessary to involve an independent appraiser. Finally, legislators do not restrict not only the cost of deposits, but also their frequency. Suffice it to include the condition of the possibility of making similar contributions to the organization's charter (Article 27 of the Federal Law of 08.02.98 № 14-FZ). Specific contributions of the same, the cost and frequency to be determined by the general meeting of shareholders. The law allows for the contributions not only in proportion to the shares in the share capital of the company, but also in any other options, if any statute of the organization - the recipient's contribution. All this makes the tool convenient way to "transfer" of property between parent and subsidiary. Taxation of contributions to estate Far less rosy is the case with tax contributions to the property. In terms of taxes, contribution to the company's assets is a gratuitous transfer of property (Article 248 of the Tax Code), for any counter duties on transfer of "donor" of the property, works or services the recipient does not arise. This means that the value of acquired assets should be included in the tax base, "the recipient" (p. 8 of Art. 250 Tax Code). However, in cases where property is transferred between the parent and subsidiary organizations, made an exception. Under subparagraph 11 of paragraph 1 of Article 251 of the Tax Code when determining the tax base for income tax are not considered income in the form of property obtained by a Russian organization free of charge: - From the organization, if authorized (reserve) capital (fund) of the recipient of more than 50% consists of the contribution (share) the broadcasting organization; - From the organization, if authorized (reserve) capital (fund) the transferor more than 50% consists of the contribution (share) of the receiving organization; - From an individual, if the (share) capital (fund) of the recipient of more than 50% consists of the contribution (share) of that person. Note: This exemption is valid only under the condition that within a year after receiving the deposit, the property will not be disclosed to third parties. As thus obtained the property of the organization may charge depreciation on the basis of market value of the property. Market value can be confirmed as expert opinion and other documents (paragraph 2 of Section 1, Art. 257, paragraph 8 of Art. 250 Tax Code). For example, the general meeting and the act of acceptance and transfer. That is, in terms of depreciation, this method may be even more profitable contribution to charter capital, since it allows to determine the amount of the operating system to a much wider range. At the transmitting side value of the contribution of the costs not included under paragraph 16 of article 270 of the Tax Code, as this property for income tax purposes is donated. However, the situation with taxes much "spoils" of VAT. The fact that the Tax Code contains no provisions governing the right to calculate VAT on the contributions to the company's assets. So there are two possibilities. Option 1. Just as in the case of income tax, to recognize the contribution of free gear. This automatically implies the obligation to charge VAT (podp. 1, No. 1, Art. 146 Tax Code). In this case, the host of the right to deduct will not arise, since in this case the tax is not imposed, and the special rule for contributions to the property (as distinct from contributions to the Criminal Code) lawmakers not installed (Section 1, Art. 171, Art. 168 NC RF). Option 2. Regard the operation as an investment and not to impose VAT on the basis of subparagraph 4 of paragraph 4 of Article 39 of the Tax Code. But in this case a question arises about the restoration of VAT (Section 3, Article. 170 Tax Code), and the restoration of the tax immediately denies this option attractive. Thus, consider the contribution to the property as a way to transfer property from one organization to another makes sense only if the transferred property is exempt from VAT (eg, land, securities, etc.), or if the transferor is not the payer this tax. In other cases, the need to charge VAT makes this method impractical.
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