The distribution of profits in an LLC between participants is a procedure that co-owners of successful companies regularly face. The question is how the distribution of earned money is made, and according to what principles the calculation is carried out. Let's consider these questions in more detail.

General provisions

The main purpose of establishing an LLC is to make a profit. Therefore, the process of dividing dividends between the founders is natural. But it is important to understand that a company's net income is the money that is received as a result of activities, minus taxes and bills paid. The issue of profit distribution lies with the participants of the company, and this right is enshrined in the Federal Law.

What is an LLC? This is a company that is created by several founders in order to increase authorized capital and scaling up activities. Each owner may have a different share (depending on investments in the company's management company). Its size can be determined as a percentage (50%) or as part of the total amount. In the given example, this will be ½ of the authorized capital of the company.

An equally important feature of the company is the possibility of dividing income (net profit) between the founders. The frequency of this procedure varies. As a rule, it is organized once a quarter, six months or a year. Do not confuse profit sharing with the payment of dividends on shares. In the latter case, payments are made only once every 12 months.

Another distinguishing feature of societies is the peculiarity of the management structure. An LLC is headed by a general director or board, as well as a general meeting of owners. The latter makes key decisions for the company on a collegiate basis and taking into account the rules that are spelled out in the charter. One of the issues that can be considered at the meeting of the founders is the distribution of the company's profits.

How does this happen?

The issue of distribution of LLC profits is put on the agenda of the meeting of founders. Depending on the success of the society, such an issue can be considered once every 3, 6 or 12 months. At the meeting, the participants determine the rules for the distribution of profits. The decision can only be taken by voting. In the absence of a quorum (the required number of votes of the founders), the decision-making process may be postponed.

Profit can be distributed as follows:

• Payments to the founders of the company.
• Rewarding employees of the society.
• Injection of funds into the existing social programs of the organization.
• Strengthening the financial reserves of the society.
• Replenishment of the most important funds.
• Expansion of business activities, opening of new directions.

The charter of the company often stipulates the purposes for which the profits received as a result of the activity can be directed. In addition, the document often indicates the timing of payments in relation to the founders of the company. In the latter case, payments to LLC owners should be reflected in financial statements.

In other situations, the amount of profit for the year is declared after a certain date. As a result, such information is not reflected in the financial statements for the latest period.

Many people in the course of their activities have come across the term "dividends". Despite its popularity, it will not work to meet such a wording in regulatory papers or laws. When it comes to LLC, the word profit is used. The second term is more suitable for the distribution of income received by the holders of securities.

The distribution of net profit is made upon the adoption of the relevant decision at the meeting of the founders. It will also determine what share of the total amount, and for what purposes it will be spent. The amount of payments intended for each participant depends on his share in the company's capital. The higher it is, the higher the payout. But here it is worth focusing not only on the decision of the meeting, but also on the conditions prescribed in the charter of the company. This document may define a different distribution approach.

Special attention should be paid to the terms during which payments are made. According to the law, the distributed profit must be credited to the account of each of the founders within a period of up to 60 days, starting from the moment when the relevant decision was made at the meeting of participants. At the meeting, shorter payment terms may be determined. In addition, other information may also be reflected in the charter. The main thing is that the upper period when payment can be made does not exceed 60 days.

What to do in a situation where the distributed profit did not reach one or more founders in the prescribed period? In this case, the owner retains the right to demand his money within 3 years from the date of expiration of the 60 days required by law for the payment. Again, the meeting has the right to increase the term for applying for profit, which should also be reflected in the charter of the LLC.

If during the specified period the founder did not apply for money, they are transferred to the retained earnings. But there is an exception here. If it has been proven that the owner refused the funds due to him under pressure, the period for claiming profits will be restored.

What can be the restrictions?

After deciding on the transfer of profits to the participants, the LLC undertakes the obligation to make the necessary payments in a timely manner in the agreed amount and taking into account the size of the shares of the owners. But in the Federal Law of the Russian Federation there are a number of restrictions in which payments are impossible:

• The founders did not contribute the entire amount to the Criminal Code, taking into account the established share.
• The size of the net assets of the enterprise at the time of the division of income, as well as the adoption of the corresponding decision, is less than the value of the reserve funds or the company's management company. This can also include a situation where, after making payments, the size of the authorized capital or fund of an LLC will significantly decrease.
• The company did not pay out shares to those owners who had previously been expelled from the company.
• In the process of making a decision or after making payments, the company will be on the verge of bankruptcy.

In all of the above cases, the distribution of LLC profits is prohibited. At the same time, the head of the organization - the general director - bears full responsibility for the possible financial inability of the company, as well as the amount of net assets.

If a member of the company paid his share on time, is entitled to a part of the profit, but does not receive money (subject to the adoption of an appropriate decision), he has the right to demand payment of interest for each day of delay. After settling the current problems, the LLC makes the necessary payments.

A separate issue is the form of payment of LLC profits. There are no clear rules in the law, so funds can be transferred in cash, by bank transfer or in kind (for example, with the company's products).

controversial points

In the process of profit distribution in an LLC, disputes often arise, due to which there are delays in the payment of funds. Consider the most common cases:

1. The authorized capital has been increased. The desire of society to inject new funds into the Criminal Code is fully justified. In this way, the company increases investment attractiveness and seeking additional funding. The "expansion" of the authorized capital is also necessary in the event that it does not meet the requirements of the legislation in relation to a particular type of activity. In both the first and second cases, the UK can be increased at the expense of the company's profit, which was not distributed among the founders. For replenishment, only “net” income is used, from which taxes, fines (if any), fees and counterparty accounts are paid. The decision to increase the management company of an LLC at the expense of retained earnings can only be taken by the founders at a general meeting.
2. Adding new owners. The situation with the distribution of dividends in an LLC becomes more complicated when a new participant appears at the height of the reporting period. Here it is necessary to focus on the charter of the company and the current federal laws. They stipulate that the distribution of profits is made taking into account the shares of the founder in the UK. This means that at the time the issue is submitted to the general meeting, dividends are due to all participants, but taking into account the part in the authorized capital. At the same time, the period when they became owners is not of great importance.
3. Payments in kind. As noted above, in the presence of such a solution, profits can be distributed in a non-standard way - by making a payment in kind. By law, such payments are not prohibited. Another thing is the charter, which may contain a ban on such procedures. If disputes arise between the founders on this issue, the Federal Law comes first. It provides for the possibility of making payments in natural form Therefore, from the standpoint of the law, this is not a violation.
4. Cancellation of the decision. According to the legislation, the decision on the distribution of the income of the enterprise is made collectively. At the same time, to obtain a positive result, it is required that a larger number of founders vote “for”. Also, in practice, it is not customary to consider the same issue twice. But there are times when the first decision is reviewed and canceled at an extraordinary meeting. Such an action is illegal, because the cancellation of the decision of the meeting is entirely the power of the court. Any of the founders who considers the current situation a violation of their own rights can file and file a claim for his incompetence.

Distribution of profits in various cases - during the simplified tax system and liquidation

It is known that the distribution of the net income of the enterprise is made on the basis of information obtained from accounting. Under the law, this rule works for all companies, regardless of the type of reporting to the Federal Tax Service. Until 2013, companies could not keep interim financial reports, reporting only at the end of the year. This means that the distribution of profits was carried out only once, after all fees, taxes and deductions were paid by the company.

A separate issue is the liquidation of the company. It can be done in two ways - voluntarily or involuntarily. In the first situation, the founders themselves decide on the termination of activities, and in the second case, this is done by the court. The decision on liquidation is made at the general meeting, and at the end a protocol is drawn up, a commission is appointed, and work on the payment of accounts payable is activated.

As soon as all settlements on debts are made, the remaining assets are transferred under a special act to the founders who have the appropriate rights to them. The distribution is made taking into account the shares. After that, the liquidation balance sheet is drawn up, and then the document is subject to approval. As soon as a complete package of papers is formed, it is transferred to a special body for registration and completion of the liquidation process.

If, according to the results of the executed balance sheet, a loss is visible, it is in without fail repaid at the expense of the authorized capital of the enterprise.

Documenting

It is worth noting that the fact of profit distribution is documented by drawing up a protocol. At the same time, the standard form of the document is not legally established. Most often, the protocol is drawn up in a free form, but indicating mandatory information, namely the date and place of the meeting, the paper number, and the list of issues on the agenda. In addition, the following information should be reflected - the amount of dividends, terms, as well as the form of payments. It is worth noting that the protocol indicates only the total amount of profit that is payable.

In the future, the calculation of income is carried out on an individual basis with the execution of a separate document, for example, accounting statement. The payment process itself is carried out using a payment order, an outgoing cash order or a payroll. If we are talking about the distribution of property, a special act is drawn up, in which all founders must sign.

This indicator is taken from balance sheet. The decision is made at the general meeting of founders.

The structure of the authorized capital of LLC

The authorized capital of a limited liability company has its own structural features. It is divided into shares, the size of which corresponds to the monetary equivalent of the contribution of each participant.

The size of the share is calculated either as a percentage of the total authorized capital, or in parts of the total amount in monetary terms, for example, 30% or 1/3 of the capital.

Profit can be distributed quarterly, every six months or once a year according to the decision made at the meeting of the founders. The decision on payments is made by the executive body represented by the director of the enterprise or the head of the board.

The executive body cannot independently make decisions on the distribution of profits, but is responsible for fulfilling obligations to shareholders (founders).

Distribution of net profit in LLC

The net profit of LLC is determined according to the accounting documents at the end of the reporting period. The decision on the distribution of net profit is made by voting. If at the meeting the participants did not come to a common agreement, the meeting is postponed to another period.

The funds can be used for the following purposes:

• improvement and expansion of business and production;
• replenishment of funds at the enterprise;
• formation of financial reserves of the organization;
• increase the authorized capital;
• making payments under social programs;
• payment of bonuses to employees of the organization;
• repayment of losses of previous years;
• other payments to LLC participants (dividends).

Not always the directions for making payments and the terms are prescribed in the charter of the company.

If the terms of payments are regulated by the charter, at the meeting of the founders, the reporting on their implementation is read out in accordance with the financial statements.

If the payment date is set directly at the meeting, the report on the work performed is read out after the reporting date, since no entries have yet been made in the accounting documents.

Distribution of profits between LLC participants

According to the Letter of the Ministry of Finance of the Russian Federation dated March 20, 2012 No. 03-03-06 / 1/133, previously undistributed profit of an LLC when making payments from it is equated to dividends and is taxed at the rates in force at the time of making payments in accordance with the law.

When making dividend payments to participants from the profits of previous years, the enterprise must provide a supporting document stating that the profit has not been distributed before.

If the profit was distributed earlier, the dividends are subject to tax in accordance with Article 284 of the Tax Code of the Russian Federation when making subsequent payments.

The decision to pay dividends must be approved at the meeting of shareholders.

The form of payment of dividends is not regulated by law, so they can be paid in cash and non-cash, as well as in kind.

It should be remembered that the distribution of profits between the participants of the LLC is not made in the following cases:

• when the amounts of the authorized capital have not been paid in full;
• the enterprise has signs of bankruptcy or was declared bankrupt at a meeting of founders (shareholders);
• if the value of net assets is less than the value of the authorized capital (at the time of the decision to make payments);
• in other cases provided for by law.

Terms of payment of dividends LLC

Dividends (distributed net profit) are paid no later than 60 days from the date of the decision.

The term of payments can be changed downwards only at the general meeting of shareholders. The frequency of payments is regulated by the charter or a decision at the meeting of the founders.

If no payment was made to any of the participants after the decision on the distribution of profits was made, he has the right, within three years after the expiration of the dividend payment period, to demand his part of the payments in accordance with the law.

If the participant applied at a later period, payments will not be made due to the statute of limitations. The period for applying for the payment of dividends can be changed, this fact must be fixed in the charter without fail.

At the end of three years, the distributed shares of profit unclaimed by the participants are restored to the undistributed profit of the LLC.

Controversial questions about the payment of dividends

If new members enter the company before dividend payments are made, disputes may arise in the distribution of profits.

In this case, the net profit is distributed among the participants according to the shares of the contribution to the authorized capital, regardless of when these participants arrived at the enterprise.

If the payment of dividends in kind is not provided for by the charter, it is considered lawful in accordance with the law.

At the meeting of shareholders, the same issue is not considered twice. If for some reason the decision on the payment of dividends (distribution of profit) has not been made, an extraordinary meeting of shareholders is convened after a while.

The decision on the distribution of profits made at such a meeting can be canceled in court only if a violation of the rights of any of the participants is recognized.

Undistributed net profit can be transferred to increase the share of the authorized capital without making payments to the participants, if a corresponding decision is made at the meeting of the founders.

Discussing non-standard issues of profit distribution in LLC

Video on the topic: “Distribution of LLC profits”

What is the net profit of the organization for determining dividends? Should it be reduced (increased) by all the amounts artificially accrued on accounts 09, 77.99, or is line 2300 simply taken from the profit and loss form, income tax is deducted from it, which is payable to the budget for the year according to the profit declaration and this will be the amount for dividends? Thank you.

The source of payment of dividends is net profit, determined according to accounting data and reflected in line 2400 of the Statement of Financial Results.

How to determine the amount and procedure for paying dividends

Any income distributed in proportion to the contributions of participants, shareholders at the expense of the net profit of the organization is recognized as dividends. Dividends can also be income received from sources abroad. All this follows from paragraph 1 of Article 43 tax code RF.

Joint stock companies must determine this indicator according to the financial statements ().

There is no such legal requirement for an LLC. However, representatives tax service recommend relying on the data of the Statement of Financial Results for all organizations. This indicator can be viewed in the line Net profit (loss) of this form of financial statements (letters of the Ministry of Taxation of Russia dated March 31, 2004 No. 22-1-15 / 597, UMNS of Russia for Moscow dated October 8, 2004 No. 21-09 /64877).

An example of determining the amount of dividends due to members of the company

The authorized capital of the non-public Alfa JSC is 40,000 rubles. A.V. Lvov owns 60 percent of the organization's shares, and Hermes Trading Company LLC holds 40 percent. The organization pays dividends quarterly.

According to the Statement of Financial Results for the 1st quarter, Alpha's profit after tax (net profit) amounted to 50,000 rubles. The participants decided to allocate 40 percent of this amount for the payment of dividends.

The total amount of dividends is:
50 000 rub. ? 40% = 20,000 rubles.

Of this amount, Lvov is due:
20 000 rub. ? 60% = 12,000 rubles.

Hermes is due:
20 000 rub. ? 40% = 8000 rubles.

Situation: Is it possible to pay dividends from the profits of previous years

Yes, you can.

Both in civil and tax legislation it is only said that the source of dividend payment is the net profit of the organization. There are no restrictions anywhere in which period such profit should be formed. This follows from the Tax Code of the Russian Federation, Article 42 of the Law of December 26, 1995 No. 208-FZ, paragraph 1 of Article 28 of the Law of February 8, 1998 No. 14-FZ.

Therefore, if according to the results of previous years, profit is not distributed, then dividends can be paid at its expense in the current year. This can happen, for example, if the net profit was not used to pay dividends or to form special funds.

The legitimacy of this conclusion is confirmed in the letters of the Ministry of Finance of Russia dated August 24, 2012 No. 03-04-06 / 4-256, dated March 20, 2012 No. 03-03-06 / 1/133, dated April 6, 2010 No. 03 -03-06/1/235 . Similar conclusions are expressed in the resolutions of the Federal Antimonopoly Service of the North Caucasus District of January 23, 2007 No. F08-7128 / 2006, of March 22, 2006 No. F08-1043 / 2006-457A, of the East Siberian District of August 11, 2005 No. A33-26614 / 04-S3-F02-3800 / 05-S1, Volga District dated May 10, 2005 No. A55-9560 / 2004-43.

In addition, dividends can be paid out of the profits of previous years if the organization had no net profit in the reporting year (letter of the Federal Tax Service of Russia dated October 5, 2011 No. ED-4-3 / 16389).

Situation: in what period to take into account dividends from a subsidiary, if their amount became known after the end of the reporting year

The answer to this question depends on whether the financial statements are signed or not yet.

After all, if the reporting has not yet been signed, then the distribution of the net profit of a subsidiary can be recognized as an event after the reporting date. Then the accrued dividends must be reflected in the final entries of the reporting year. Take these amounts into account in income and when determining financial result for the reporting year. This procedure follows from paragraphs, PBU 7/98 and paragraph 6 of paragraph 1 of the Appendix to PBU 7/98.

If the accrual of dividends became known after the signing of the financial statements, then include them in the income of the current year. This conclusion can be drawn based on

The owners of the company can use the net profit to pay dividends, to bonuses to employees, to increase the authorized capital, or for other purposes. In this article, we will look at how to account for transactions related to the distribution of profits and pay taxes.

The right to distribute profits belongs to the owners of the company (subclause 3, clause 3, article 91, clause 4, clause 1, article 103 of the Civil Code of the Russian Federation). To do this, they must hold a general meeting. In a joint-stock company, it is carried out no earlier than two months and no later than six months after the end of the financial year (clause 1, article 47 of the Federal Law of December 26, 1995 No. 208-FZ "On Joint-Stock Companies", hereinafter - Law No. 208 -FZ). In limited liability companies, the period for holding annual meetings is shorter - from March 1 to April 30 (Article 34 of the Federal Law of February 8, 1998 No. 14-FZ "On Limited Liability Companies", hereinafter - Law No. 14-FZ).

The decision must be documented in the minutes of the general meeting of shareholders (participants). It is clear that in companies created by a single founder, minutes of general meetings are not drawn up (Article 39 of Law No. 14-FZ, clause 3 of Article 47 of Law No. 208-FZ). The sole founder determines the directions of spending the net profit by his written decision.

What can you spend your net income on?

Undistributed (net) profit can be directed:

• for the payment of dividends;
• increase the authorized capital;
• formation of reserve capital;
• repayment of losses of previous years;
• various employee benefits;
• financing capital investments;
• other goals.

Let us consider in more detail the procedure for distributing profits for some of these purposes.

We pay dividends

The payment of dividends is the main direction of profit distribution.

When Not to Pay Dividends

Before making a decision to pay dividends, you need to check whether the company has the right to do so.

Recall that it is impossible to distribute profits between owners if:

• share capital not fully paid up. In other words, if there is a debt in the debit of account 75 “Settlements with founders”, then profit cannot be distributed;
• at the time of the decision to pay dividends, the value of the company's net assets is less than its authorized capital and reserve fund or will become less as a result of such a decision;
• the company meets the signs of insolvency (bankruptcy) or if such signs appear due to a decision on the distribution of profits. Signs of bankruptcy are given in federal law dated October 26, 2002 No. 127-FZ “On Insolvency (Bankruptcy)”. In particular, these include a situation in which the company, within three months from the date of the due date for the fulfillment of monetary obligations under contracts, including taxes and fees, will not be able to satisfy these requirements (clause 2, article 3 of Law No. 127-FZ ).

So, if at least one of these criteria is met, then the amounts paid to the founders are not recognized as dividends, since they were accrued in violation of the law. And they will have to charge taxes from them not at "dividend" rates, but at the usual ones (letter of the Ministry of Finance of Russia dated 10/14/2005 No. 03-03-04 / 1/276).

What documents are used to pay dividends

To calculate dividends, the following documents are required (letter of the Federal Tax Service for Moscow dated February 14, 2007 No. 20-12/013749a):

• a registered charter that provides for the payment of dividends;
• minutes (decision) of the general meeting of shareholders (participants) approving the payment of dividends for a certain year in a certain amount;
• documents confirming the number of shares or share in the authorized capital of each recipient of dividends;
• financial statements, according to which the company has a net profit in the amount necessary for payment.

The payment of dividends is confirmed by a payment document.

Is it possible to pay dividends from the profits of previous years

The regulatory authorities recognize that the company has the right to pay dividends from the profits of previous years (letters of the Ministry of Finance of Russia dated 03.20.2012 No. 03-03-06 / 1/133, the Federal Tax Service of Russia for Moscow dated 08.06.2010 No. 16-15 / [email protected], dated June 23, 2009 No. 16-15/063489).

This position is also supported by the judges (decisions of the Federal Antimonopoly Service of the North Caucasian District of January 23, 2007 No. 08-7128/2006, of the East Siberian District of August 11, 2005 No. А33-26614/04-С3-Ф02-3800/05-С1).

Attention!

It makes sense to mention the possibility of distributing the net profit of past years in the charter of the organization.

By the way, according to the Ministry of Finance, dividends from the net profit of previous years can be paid only if this profit was not previously directed to the formation of funds. For example, a fund for the corporatization of employees of a joint-stock company. Otherwise, dividend payments are not considered and, accordingly, are taxed at the usual rates (clauses 1, 2, article 35 of Law No. 208-FZ, letter of the Ministry of Finance of Russia dated 03/20/2012 No. 03-03-06/1/133, dated 04/06/2010 No. 03-03-06/1/235).

Accounting when accruing dividends

When accruing dividends (both annual and quarterly), the following entries are made in accounting:

Debit 84 Credit 75-2

Dividends accrued to the founder, who is not an employee of the organization;

Debit 84 Credit 70

Dividends are accrued to the founder, who is an employee of the organization.

If dividends are accrued but not paid

It happens that the company accrued dividends, but for some reason did not pay. Accrued but not paid dividends must be restored as part of net profit three years after the dividend payment deadline established by the general meeting (a longer period may be specified in the charter, but not more than five years) (clause 5, article 42 of Law No. 208- Federal Law, clause 3, article 28 of Law No. 14-FZ).

The lines will be like this:

Debit 75-2 Credit 84 sub-account "Retained earnings of the reporting year"

Unclaimed dividends were reinstated as part of net income.

When calculating income tax, dividends unclaimed by shareholders (participants) restored as part of profit are not included in income (subclause 3.4, clause 1, article 251 of the Tax Code of the Russian Federation).

We increase the authorized capital

Net profit can also be used to increase the authorized capital, although in practice such use of net profit is quite rare.

Three conditions for increasing the authorized capital at the expense of profit

When increasing the authorized capital of an LLC at the expense of property, the following requirements must be met (Article 18 of Law No. 14-FZ, clause 9 of the joint resolution of the Plenum of the Supreme Court of the Russian Federation No. 90 and the Supreme Arbitration Court of the Russian Federation No. 14 of 09.12.99):

1. The decision to increase the charter capital in this way must be taken by the general meeting of participants on the basis of the company's financial statements for the year preceding the year during which such a decision was made. At least 2/3 of the LLC participants must vote for it (if the need for a larger number of votes to make such a decision is not provided for by the charter);

2. With an increase in the authorized capital, the nominal value of the shares of all participants in the company increases proportionally without changing the size and ratio of their shares.

3. The amount of the authorized capital increase must not exceed the difference between the value of the company's net assets and the amount of the company's authorized capital and reserve fund.

Example 1

The authorized capital of the company is 1,100,000 rubles. Reserve fund - 400,000 rubles. As of January 1, 2013, the value of net assets was equal to 3,010,152 rubles, the amount of retained earnings was 3,100,000 rubles. The maximum amount of the authorized capital increase is 1,510,152 rubles. .

It is clear that the authorized capital, the size of which the company is going to increase, must be fully paid by the founders.

As for joint-stock companies, the procedure for increasing the authorized capital at the expense of net profit will be slightly different.

The authorized capital of a JSC can be increased by increasing the nominal value of shares or by placing additional shares (clause 1, article 28 of Law No. 208-FZ).

The decision to increase the authorized capital by increasing the nominal value of shares is taken by a simple majority at the general meeting of shareholders. And the decision to place additional shares can be made either by a simple majority at the general meeting of shareholders or by the company's board of directors unanimously, if the company's charter allows it (Article 28 of Law No. 208-FZ).

Documentation with an increase in the Criminal Code

An increase in the authorized capital of a company provides for the need to amend the charter.

The procedure for making changes is provided for by Federal Law No. 129-FZ dated 08.08.2001 “On state registration legal entities and individual entrepreneurs"(hereinafter - Law No. 129-FZ).

So, documents must be submitted to the registration authority (clause 1, article 17 of Law No. 129-FZ):

• application for state registration of amendments to the charter, in the form No. P13001 (approved by order of the Federal Tax Service of Russia dated January 25, 2012 No. ММВ-7-6 / [email protected]). It must be signed by the person exercising the functions of the sole executive body of the company;
• decision to amend the articles of association;
• changes made to the constituent documents of a legal entity, or the constituent documents of a legal entity in new edition in duplicate;
• document confirming the payment of state duty in the amount of 800 rubles. (signature 3, clause 1, article 333.33 of the Tax Code of the Russian Federation).

Taxation when increasing the authorized capital

The organization itself, when increasing the authorized capital at the expense of its own property, including at the expense of retained earnings, does not generate income (subclause 3, clause 1, article 251 of the Tax Code of the Russian Federation, letter of the Ministry of Finance of Russia dated 04/09/2007 No. 07-05-06 / 86).

Let's figure out how the increase in the authorized capital of the company will affect its founders. More precisely, whether it will be considered income for tax purposes:

• for LLC participants - the difference between the new and old nominal value of the share;
• for JSC shareholders - the difference between the nominal value of new shares and the original ones.

JSC shareholders - legal entities will not have taxable income, this is expressly stated in subpara. 15 p. 1 art. 251 of the Tax Code of the Russian Federation. According to this rule, when determining tax base Income in the form of:

• the cost of additional shares received by the shareholder organization, distributed among shareholders by decision of the general meeting in proportion to the number of shares they own;
• the difference between the nominal value of new shares received in exchange for the original shares and the initial shares of a shareholder in the event of distribution of shares among shareholders upon an increase in the authorized capital of a joint-stock company (without changing the shareholder's share in this company).

But with LLC participants - legal entities, the situation is different. About them in the sub. 15 p. 1 art. 251 of the Tax Code of the Russian Federation is not mentioned. There are clarifications from the Ministry of Finance that when increasing the authorized capital at the expense of retained earnings of previous years, participants receive non-operating income, from which income tax must be paid (letters of the Ministry of Finance of Russia dated May 30, 2013 No. 03-03-06/1/19742, dated 09/26/2011 No. 03-03-06/1/588).

However, judges in some decisions express the opinion that the participants do not receive any income from an increase in the authorized capital at the expense of net profit. They note that the profit in this case does not go to the participants, but remains a separate property of the company. Participants only increase the nominal value of their shares. Shareholders will receive real economic benefit only when any of the property rights is realized.

This means that the organization - a member of the company does not have economic benefits and income, as well as tax base for calculating profit, because an increase in capital due to retained earnings of a company that does not change the actual shares of participants in the authorized capital does not lead to a change in their property (obligation) rights (Resolution of the Federal Antimonopoly Service of the Volga District dated February 16, 2009 No. A65-11409 / 2006) . However, relying on this court decision is risky - so far we are not talking about established practice on this issue or any trend.

For LLC participants - individuals, when increasing capital due to retained earnings of previous years, income arises in the form of the difference between the initial and new nominal value of their shares.

The date of receipt of income is the date of state registration of the increase in the authorized capital of the company. On this date, the organization that is the source of income must calculate, withhold from the taxpayer and pay the amount of personal income tax in the general order (letters of the Ministry of Finance of Russia dated January 26, 2007 No. 03-03-06 / 1/33, dated December 19, 2006 No. 03-05-01-04 / 336). The same is true for JSC shareholders.

It will be quite problematic to challenge this opinion in court. Previously, the courts supported taxpayers. The judges pointed out that an increase in the nominal value of a share in the authorized capital of an LLC due to retained earnings in relation to a participant cannot be regarded as income individual(Resolutions of the Federal Antimonopoly Service of the Urals District of May 28, 2007 No. Ф09-3942/07-С2, of the East Siberian District of July 25, 2006 No. А33-18719/05-Ф02-3629/06-С1, of the Moscow District of February 26, 2009 No. КА- A41/1046-09).

However, in Ruling No. 81-O-O of January 16, 2009, the Constitutional Court of the Russian Federation expressed a different position. The court recognized that exemption from taxes by its nature is a benefit, which is an exception to the principles of universality and equality of taxation arising from the Constitution of the Russian Federation, by virtue of which everyone is obliged to pay a legally established tax from the corresponding object of taxation. Establishing the benefits is the exclusive prerogative of the legislator. And with an increase in the authorized capital at the expense of retained earnings, the benefit is not provided. Arbitration courts began to follow this trend.

Thus, the Federal Antimonopoly Service of the Volga District decided that income in the form of the difference between the initial and new nominal value of the share formed in connection with the increase in the authorized capital of the company due to retained earnings of previous years, as well as the contribution of the participant, is subject to personal income tax (Decree No. 10.02.2011 A78-928/2010).

Accounting with an increase in the Criminal Code

When the authorized capital is increased, the following entries are made in accounting:

Debit 84 Credit 80

The increase in the authorized capital at the expense of net profit after the registration of the change is reflected.

We form reserve capital

Reserve capital - part of the equity allocated from the organization's profits to cover possible losses and losses. The amount of reserve capital and the procedure for its formation are determined by the legislation of the Russian Federation and the charter of the organization.

Joint-stock companies are obliged to create a reserve fund (capital) at the expense of net profit. At least 5% of net profit must be directed to the reserve fund (capital) annually. Deductions may be terminated when the reserve fund (capital) reaches the amount stipulated by the charter of the joint-stock company. Minimum size reserve fund (capital) of JSC - 5% of the authorized capital (clause 1, article 35 of Law No. 208-FZ).

The reserve fund of a JSC is intended to cover its losses, as well as to redeem the company's bonds and buy back the company's shares (clause 1, article 35 of Law No. 208-FZ).

An LLC can also create a reserve fund (capital), but it is not obliged to do so. The society determines its size and the order of formation independently (Article 30 of Law No. 14-FZ).

There is no mandatory contribution requirement for LLCs.

Accounting when forming a reserve fund

When forming the reserve capital in accounting, the following entries are made:

Debit 84 Credit 82

The net profit was directed to the formation of a reserve fund (capital) in accordance with the standards approved by the charter.

We cover the losses of previous years

When directing net profit to cover losses of previous years, the following entries are made in accounting:

Debit 84 subaccount "Retained earnings of the reporting year" Credit 84 subaccount "Uncovered loss of previous years"

Directed net profit to pay off losses of previous years.

We use net income to purchase property

At the general meeting, shareholders of a joint-stock company or participants in an LLC may decide to allocate part of retained earnings for the acquisition of non-current assets. Owners have the right to make such decisions. But the question arises, what should an accountant do with account 84 “Retained earnings (uncovered loss)”. In the Instructions for the Application of the Chart of Accounts (approved by order of the Ministry of Finance of Russia dated October 31, 2000 No. 94n), in the provisions on accounting, as well as in other regulations, there are only a few cases when it is possible to make a posting with the debit of account 84:

1) dividends have been accrued to shareholders or members of the company;

2) a reserve fund was created (replenished) on account 82 “Reserve capital”;

3) a loss was received based on the results of the reporting period;

4) after the approval of the annual reporting, a significant error was corrected (clause 9 PBU 22/2010 “Correction of errors in accounting and reporting”);

5) a significant change in accounting policy is retrospectively reflected (clauses 14, 15 PBU 1/2008 " Accounting policy organizations");

6) the authorized capital of a JSC or LLC has been increased at the expense of the company's property.

For other cases, the Instructions for the Application of the Chart of Accounts provide for the reservation of retained earnings.

To track the direction of the use of funds, you need to organize analytical accounting for account 84. Sub-accounts are created for it.

The total balance of this account at the time of acquisition does not change, since investments from net income do not lead to a decrease in the balance sheet currency. Analytical accounting on account 84 “Retained earnings (uncovered loss)”, namely: “Profit to be distributed”, “Use of profit” allows you to control the presence and expenditure of retained earnings:

Debit 84 sub-account "Profit to be distributed" Credit 84 sub-account "Use of profit"

The use of net profit is reflected (the date of reflection of property in accounting).

Example 2

JSC "Kometa" for 2012 received a net profit of 4,000,000 rubles. On April 30, 2013, at the general meeting of shareholders, it was decided to distribute part of the net profit received for 2012, namely: net profit in the amount of 590,000 rubles. was used to finance capital investments. On May 15, 2013, at the expense of these funds, the organization purchased commercial equipment worth 590,000 rubles. (including VAT 90,000 rubles).

The following entries were made in the accounting of JSC "Komety".

Debit 08 Credit 60

- 500,000 rubles. - Purchased production equipment;

Debit 19 Credit 60

- 90,000 rubles. - "input" VAT is taken into account;

Debit 60 Credit 51

- 590,000 rubles. - transferred to the supplier cash for commercial equipment;

Debit 84 sub-account "Profit to be distributed" Credit 84 sub-account "Use of profit"

- 590,000 rubles. - reflects the use of net profit aimed at financing capital investments;

Debit 01 Credit 08

- 500,000 rubles. - the equipment was put into operation;

Debit 68 subaccount "VAT settlements" Credit 19

- 90,000 rubles. - submitted for the deduction of "input" VAT on commercial equipment.

Thus, the balance of retained earnings for 2012 is 3,410,000 rubles. (4,000,000 rubles - 590,000 rubles). The founders can use this amount at their discretion.

LLC members? When can dividends not be distributed? What is important to consider when distributing and paying dividends in order not to lose on taxes?

According to the results of 2015, limited liability companies must decide on the payment of dividends in the period from March 1 to April 30, 2016 (clause 3, article 28, article 34 of the Federal Law of February 8, 1998 No. 14-FZ "On limited liability companies”, hereinafter referred to as Law No. 14-FZ).

The concept of dividends

A few words about the very concept of "dividends". Note that the civil legislation of the Russian Federation does not contain a clear definition of "dividends". In particular, Law No. 14-FZ does not contain the concept of "dividends", instead of it the concept of "distribution of net profit" appears.

The concept of "dividends" is used only in the Federal Law of December 26, 1995 No. 208-FZ "On Joint-Stock Companies", which states that it has the right to make decisions (announce) on the payment of dividends on outstanding shares (clause 1, article 42 of the Law No. 208-FZ) and in tax legislation (clause 1, article 43 of the Tax Code of the Russian Federation).

True, the concept of "dividends", used for tax purposes, is broader than in civil law.

Deadlines for making a decision on the distribution of profits

Law No. 14-FZ allows the payment of dividends to participants quarterly, every six months or once a year. The decision to determine the part of the company's profit to be distributed among the company's participants is made by the general meeting of the company's participants (clause 1, article 28 of Law No. 14-FZ).

Important!

However, when deciding to pay interim dividends (more than once a year), the organization has the risk of recognizing such payments as gratuitous property. If the profit received at the end of the year turns out to be less than the dividends paid, such payments are classified as donated funds (letter of the Federal Tax Service of the Russian Federation of March 19, 2009 No. ShS-22-3 / [email protected]).

Distribution of dividends

As a rule, part of the profit is distributed by the organization among the participants in proportion to their shares in the authorized capital. However, by decision of the general meeting of participants in the company, this distribution procedure may be changed. Thus, the amount of payable dividends can be distributed in equal shares between the participants of the company (clause 2, article 28 of Law No. 14-FZ).

For example, the total amount of the company's dividends distributed between two participants is 1 million rubles. The share of one of the participants is 30%. The charter of the company establishes that the amount of dividends due to be paid is distributed disproportionately to the shares of participants in the authorized capital. Thus, participants distribute dividends in equal shares, i.e. in the amount of 500 thousand rubles for each participant.

Tax risks in case of disproportionate dividend payments

From the point of view of civil law, such a distribution procedure is acceptable, but the concept of "dividends" in tax legislation implies a proportional distribution of shares in the authorized capital. It is the keyword "proportionately" that becomes a stumbling block in the qualification of such payments for the purposes of calculating income tax and personal income tax. Despite the possibility of disproportionate distribution of dividends, the regulatory authorities believe that a portion of profits distributed in this way is not recognized as dividends for tax purposes. So, in order to recognize dividends in tax accounting and be able to apply a reduced income tax rate, the following conditions must be simultaneously met (clause 2 of article 43 of the Tax Code of the Russian Federation, letters of the Ministry of Finance of the Russian Federation dated 09.09.2013 No. 03-04-06 / 37090, dated July 30, 2012 No. 03-03-10/84):

payments are made from net profit;

the decision to pay dividends is documented;

payment of dividends is carried out in proportion to the shares of participants in the authorized capital.

On this basis, the controllers conclude that disproportionately distributed dividends are not recognized as dividends for tax purposes, and therefore, a “non-dividend” income tax rate of 20% must be applied to such payments. The existing arbitration practice confirms this position (decisions of the Federal Antimonopoly Service of the Volga District of May 24, 2012 No. A65-18467 / 2011, the North-Western District of April 28, 2012 No. A13-7191 / 2010 and of April 18, 2012 No. A13- 13347/2010).

Terms and procedure for payment of dividends

As a general rule, the term and procedure for paying dividends are determined by the charter of the company or by the decision of the general meeting of the company's participants on the distribution of profits between them.

Important!

Dividends must be paid to a member of the Company no later than 60 days from the date of the decision on the distribution of profits.

If the period for paying dividends is not determined by the charter or the decision of the general meeting of the company's participants on the distribution of profits, then the specified period is also equated to 60 days from the date of the decision on the distribution of profits between the participants (clause 3 of article 28 of Law No. 14-FZ) .

Law No. 14-FZ provides for a deadline for paying dividends to an LLC participant. So, if in set time dividends are not paid, then the participant has the right to apply within three years after the expiration of the specified period to the company with a demand for their payment.

At the same time, the charter of the company may provide for a longer period for filing this claim, but not more than 5 years from the date of expiration of the total period for paying dividends.

After the expiration of the specified period, the part of the profit distributed and unclaimed by the participant is restored as part of the undistributed profit of the company (clause 4, article 28 of Law No. 14-FZ).

List of situations when dividends cannot be distributed

One of the conditions for the payment of dividends is the presence of net profit. In certain situations, the LLC is not entitled to decide on the payment of dividends. Thus, dividends are not subject to distribution in the following cases (Article 29 of Law No. 14-FZ):

incomplete payment of the authorized capital;

until the payment of the actual value of the share or part of the share of the LLC participant;

if, at the time of the decision to pay dividends, the LLC meets the signs of bankruptcy or will have such signs after the payment of dividends;

if the value of the LLC's net assets is less than its authorized capital and reserve fund or becomes less than their size as a result of the decision to pay dividends;