home Success stories Debt forgiveness by the founder under a loan agreement: postings, taxes. Forgiveness of debt by the founder is not subject to income tax and only if it goes to increase net assets? Debt forgiveness to increase net assets

Debt forgiveness by the founder under a loan agreement: postings, taxes. Forgiveness of debt by the founder is not subject to income tax and only if it goes to increase net assets? Debt forgiveness to increase net assets

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

accounting

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

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

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

Incomes in the form of forgiven debt, reflect as other income in that reporting period, in which a notice (agreement, agreement) on debt forgiveness is signed (received) (clause 16 PBU 9/99).

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

An example of the reflection in the accounting of the debtor of the forgiveness of the debt under the supply agreement

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

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

Debit 41 Credit 60
- 118,000 rubles. - the purchased goods are credited;

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

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

An example of the reflection in the debtor's accounting of debt forgiveness under a loan agreement with an organization

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

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

To reflect transactions under the loan agreement, the Hermes accountant opened sub-accounts for account 66 “Settlements on short-term loans and loans”:
- "Settlements on the principal debt";
- Interest calculations.

Operations related to the forgiveness of the debt, the accountant of "Hermes" reflected in the accounting as follows.

Debit 51 Credit 66 sub-account "Settlements on the principal debt"
- 500,000 rubles. - credited to the current account the amount of the loan.

Debit 91-2 Credit 66 sub-account "Interest calculations"
- 4000 rub. - accrued interest on the loan received;

Debit 66 subaccount "Settlements on the principal debt" Credit 91-1
- 500,000 rubles. - debt on the principal amount of the debt is written off;

Debit 66 subaccount "Interest calculations" Credit 91-1
- 4000 rub. - written off the debt on payment of interest on the loan.

BASIC: income tax

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

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

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

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

With the accrual method, at the time of signing (receipt) of a notice (agreement, contract) on debt forgiveness, write off the interest accrued in the current reporting period, but not taken into account at the time of debt forgiveness, as a reduction in taxable profit (subclause 2, clause 1, article 265, clause 8, article 272 of the Tax Code of the Russian Federation).

Include interest in the calculation of the tax base (paragraph 1 of article 269, subparagraph 2 of paragraph 1 of article 265 of the Tax Code of the Russian Federation).

Situation: Is it necessary to take into account in income when calculating income tax the amount of forgiven debt under a contract for the purchase of goods (works, services, property rights)? A debt is forgiven by a founder who has a contribution to authorized capital organizations over 50%.

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

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

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

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

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

In this situation, the organization must independently decide which of these positions to follow. However, in connection with the release of later clarifications of the regulatory agencies, disputes with the inspectors may arise. At the same time, in arbitration practice there are examples of court decisions made in favor of organizations (see, for example, the decision of the Supreme Arbitration Court of the Russian Federation of July 24, 2009 No. VAS-8675/09, the resolution of the FAS of the North Caucasus District of May 21, 2009 No. No. A63-9238 / 2008-C4-37, Central District dated November 15, 2007 No. A54-125 / 2007-C13, North-Western District dated April 4, 2003 No. A56-39007 / 02).

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

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

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

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

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

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

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

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

However, based on the position of regulatory agencies on a similar issue of accounting for the amount of debt forgiven by the founder under a contract for the purchase of goods (works, services, property rights), it is possible that non-reflection of income when forgiving debt under a loan agreement may cause claims from inspectors. The fact is that, if you follow the norms of civil law, debt forgiveness is a way to terminate the obligation under the original paid contract (Articles 407 and 415 of the Civil Code of the Russian Federation). Therefore, it is impossible to consider the amount of forgiven debt, including under a loan agreement, as property received free of charge (Article 572 of the Civil Code of the Russian Federation). For the purposes of taxation, the specified operation should be considered as a write-off of accounts payable, which is included in non-operating income on the basis of paragraph 18 of Article 250 of the Tax Code of the Russian Federation. There are no exceptions regarding the non-reflection of income received from the founder in relation to this paragraph. Therefore, when forgiving debt under a loan agreement (as well as under any other agreement), it is necessary to generate income.

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

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

Together with the debt forgiveness agreement, a protocol must be drawn up general meeting participants of the company (shareholders), in which property, property or non-property rights are transferred to the organization to increase net assets(subclause 3.4, clause 1, article 251 of the Tax Code of the Russian Federation). At the same time, the size of the share of the founder in the authorized capital of the organization does not matter. The opportunity to use such a benefit appeared on January 1, 2011 and applies to obligations that arose from January 1, 2007 (clauses 1 and 2 of article 4 of the Law of December 28, 2010 No. 409-FZ).

See more on this. .

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

The amount of interest on debt forgiveness must be taken into account as part of non-operating income (clause 18, article 250 of the Tax Code of the Russian Federation).

It is explained like this. At its core, interest is a fee that the borrower must pay for the use of borrowed funds in accordance with the loan agreement (Article 809 of the Civil Code of the Russian Federation). Therefore, when debt is forgiven, the organization's accounts payable are written off (Article 415 of the Civil Code of the Russian Federation). There are no exceptions in the order of its taxation by law.

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

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

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

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

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

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

One of the founders of Alpha LLC is Master Production Company LLC. The share of "Master" in the authorized capital of the organization is 51 percent.

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

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

The following entries were made in the accounting.

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

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

Alfa pays income tax on a monthly basis, using the accrual method. When calculating income tax for January, the accountant took into account interest on a loan in the amount of 1151 rubles as part of non-operating expenses.

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

Debit 66 Credit 91-1
- 200,000 rubles. - the amount of forgiven debt on the received loan is attributed to other income of the organization;

Debit 66 Credit 91-1
- 2466 rubles. (1151 rubles + 1315 rubles) - interest on forgiven debt is included in other income.

When calculating income tax in February, the accountant took into account interest on forgiven debt - 2466 rubles. (1151 rubles + 1315 rubles).

As part of non-operating expenses, the accountant took into account interest on the loan in the amount of 1315 rubles.

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

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

See more on this.How to register and record the receipt of financial assistance from the founder (participant, shareholder) .

Situation: Is it necessary to recover VAT from the amount of forgiven debt under a contract for the purchase of goods (works, services, property rights)? Goods (works, services, property rights) purchased for use in transactions subject to VAT.

No, it doesn `t need.

The forgiveness of the debt by the seller (executor) leads to a decrease in the obligations of the buyer (customer) to pay for the goods delivered to him (works, services, property rights (Articles 407, 415 of the Civil Code of the Russian Federation). However, the price of the contract and the amount of VAT previously presented upon forgiveness of the debt remain unchanged. The buyer has the right to accept the amount of VAT presented by the seller (executor) for deduction simultaneously with the posting of goods (works, services, property rights) (clause 2, article 171, clause 1, article 172 of the Tax Code of the Russian Federation). ) the right to deduct input VAT does not depend.Therefore, if the delivered goods (works, services, property rights) were taken into account, and the amount of VAT was allocated in a correctly executed invoice, then the application of the tax deduction by the buyer (customer) is recognized as justified.

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

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

USN

Include the amount of forgiven debt both under the contract for the purchase of goods (works, services, property rights) and under the loan agreement as part of non-operating income (clauses 8 and 18 of article 250, clause 1 of article 346.15 of the Tax Code of the Russian Federation). Do this on the date of signing (receipt) of the notice (agreement, contract) on debt forgiveness, regardless of the applicable object of taxation (clause 1, article 346.17 of the Tax Code of the Russian Federation).

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

If an organization considers a single tax on the difference between income and expenses, the cost of purchased goods (works, services) is written off only after payment. The termination of obligations at the moment when the notice (agreement, contract) on debt forgiveness is also considered such payment (clause 1, article 407, article 415 of the Civil Code of the Russian Federation). Therefore, if entities have forgiven debt for property, plant and equipment, intangible assets, or goods purchased for resale, such assets are treated as paid for and written off to general order(Subparagraphs 2 and 4, paragraph 2 of Article 346.17 of the Tax Code of the Russian Federation). Similarly, the cost of works and services that are not of an industrial nature is written off (clause 2 of article 346.17 of the Tax Code of the Russian Federation).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

UTII

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

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

OSNO and UTII

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

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

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

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

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

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

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

Therefore, it is safer to indicate the rate in the loan agreement. Moreover, it is beneficial for subsidiary: interest on loans is reduced Of course, in this case, restrictions must be taken into account, paragraph 1 of article 269 of the Tax Code of the Russian Federation.

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

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

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

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

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

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

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

Ways to forgive debt can be such as the following.

Method number 2. The company increases its "daughter"

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

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

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

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

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

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

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

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

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

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

accounting

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

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

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

Incomes in the form of debt forgiveness, reflect as other income in the reporting period in which the notice (agreement, contract) on debt forgiveness was signed (received) (paragraph 16 of PBU 9/99).

An example of the reflection in the accounting of the debtor of the forgiveness of the debt under the supply agreement

On January 20, Alfa LLC shipped goods to the amount of 118,000 rubles to Trade Firm Germes LLC. (including VAT - 18,000 rubles). The term of payment for goods according to the supply agreement is 21 calendar days from the date of shipment.