» Net income to pay dividends. Profit distribution for dividends

Net income to pay dividends. Profit distribution for dividends

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? Thanks.

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 income. current year. This conclusion can be drawn based on

The procedure for the distribution of profits in the company is carried out in accordance with Art. 28 Federal Law "On Limited Liability Companies"

Article 28
1. Societies o has the right to make a decision on the distribution of its net profit quarterly, once every six months or once a year between members of the society. Solution on determining the part of the company's profit distributed among the participants of the company, adopted by the general meeting of the company's members.

2. The part of the company's profit intended for distribution among its participants shall be distributed in proportion to their shares in the authorized capital of the company. The company's charter upon its establishment or by amending the company's charter by decision of the general meeting of the company's participants, adopted by all participants of the company unanimously, may establish a different procedure for the distribution of profits between the participants of the company. Change and exclusion of the provisions of the charter of the company, establishing such a procedure, are carried out by the decision of the general meeting of participants in the company, adopted by all participants of the company unanimously.

3. The term and procedure for payment of a part of the distributed profit of the company are determined by the charter of the company or the decision of the general meeting of participants in the company on the distribution of profit between them. The term for payment of a part of the distributed profit of the company should not exceed sixty days from the date of the decision on the distribution of profits between the participants of the company. If the period for payment of a part of the distributed profit of the company is not determined by the charter or decision of the general meeting of the company's participants on the distribution of profits between them, the specified period is considered equal to sixty days from the date of the decision on the distribution of profits between the participants of the company. (Clause 3 was introduced by the Federal Law dated 12/28/2010 N 409-FZ

If the deadline for filing claims cannot be determined, these provisions apply to claims that arose no later than three years before the date of entry into force of Federal Law No. 409-FZ of December 28, 2010. Within six months from the date of entry into force said Law a person whose time period for filing a claim for payment of a part of the distributed profit of a business entity has expired before the date of entry into force of Federal Law No. 409-FZ of December 28, 2010, is entitled to apply for payment of a part of the distributed profit of a business entity accrued within three years before the specified date. If such a person has not exercised this right, the corresponding part of the distributed profit shall be restored as part of the undistributed profit of the business entity.

4. If during the period of payment of a part of the distributed profit of the company, determined in accordance with the rules of paragraph 3 of this article, a part of the distributed profit is not paid to the participant of the company, he has the right to apply within three years after the expiration of the specified period to the company with a claim for payment corresponding part of the profit. The charter of the company may provide for a longer period for filing this claim, while the specified period cannot exceed five years from the date of expiration of the period for payment of a part of the distributed profit of the company, determined in accordance with the rules of paragraph 3 of this article. The period for filing a claim for payment part of the distributed profit of the company in case of missing the specified period is not subject to restoration, except for the case if the participant of the company did not file this claim under the influence of violence or threat.

Thus, the profit is distributed only by decision of the general meeting of participants. While you are a member of the company, you have the right to demand the convocation of the GMS if the GMS decides on the distribution of the company's profits at the time you are among the members of the company, in which case the company is obliged to pay you the distributed profit within 60 days.

Without OSU, no distribution of profits takes place.

Accordingly, if you sold your share to another person, then it is the other person who can demand the convocation of the GMS and the distribution of profits. As a member of an LLC with a certain share, the new owner of the share will be entitled to distributed profits.

You cannot demand payment of “your” share of retained earnings on the sole basis that you are alienating your share to a third party.

The owners of the company can use the net profit to pay dividends, to bonuses to employees, to increase authorized capital or 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 the Federal Law of 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 manner (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. 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 accounting regulations, as well as in other regulations, there are only a few cases when it is possible to make a posting with debiting 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 funds 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 dividends payable can be distributed in equal shares between the company's participants (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 company's charter 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 the part 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 net assets of the LLC is less than its authorized capital and reserve fund or becomes less than their size as a result of the decision to pay dividends;

The norms of the current Federal Law No. 14-FZ dated 08.02.1998 “On Limited Liability Companies” (hereinafter referred to as the LLC Law) give the participants the right to receive part of the company's net profit. In this article, we will consider in more detail the mechanism for the implementation of this right.

The procedure for distributing net profit in an LLC

The concepts of "distributed net profit" and "dividends" of the company, from the point of view of the Tax Code of the Russian Federation, are synonymous (part 1 of article 43 of the Tax Code of the Russian Federation). According to Art. 28 of the LLC Law, the company has the right to make a decision on the distribution of its net profit quarterly, once every six months or once a year. The adoption of such a decision is attributed by law to the exclusive competence of the general meeting of participants in the company (clause 7, clause 2, article 33 of the LLC Law). By virtue of the provisions of paragraph 8 of Art. 37 of the Law on LLC, the decision is made by a majority vote of the total number of votes of the company's participants. Meanwhile, the charter of the company may establish another required number of votes. In societies consisting of one participant, the decision is made, respectively, by him alone.

The determination of the amount of the net profit to be distributed among the participants of the company is carried out before the general meeting. The LLC Law does not establish the procedure for determining net profit. However, due to the analogy of the law in this case, one can be guided by the provisions of paragraph 2 of Art. 42 federal law dated December 26, 1995 No. 208-FZ “On Joint Stock Companies”, according to which the source of payment of dividends is the profit of the company after taxation, determined according to the accounting (financial) statements of the company. When determining net profit based on financial statements it is necessary to be guided by the chart of accounts (Letter of the Ministry of Finance of Russia dated December 15, 2005 No. 03-11-04 / 2/154).

Note that the company has the right to distribute the net profit of both the current period and the previous or even several previous periods (for example, in 2018 the company may decide to distribute the net profit received both in 2017 and in previous years, if earlier it not distributed).

Each member of the company has the right to claim a part of the company's net profit to be distributed in proportion to its share in the authorized capital. The provisions of paragraph 2 of Art. 28 of the LLC Law allows derogation from the principle of proportionality. In this case, a different procedure must necessarily be fixed in the charter of the company, and it can be established both initially, when the company is created, and later, by amending the charter.

Convening and holding a general meeting of participants

Convening and holding a general meeting of the company's participants on the issue of distribution of net profit are carried out in accordance with the general procedure established by Articles 36, 37 of the LLC Law. The fact of making a decision is documented in the minutes of the general meeting and confirmed by a notary (clause 3, clause 3, article 67.1 of the Civil Code of the Russian Federation). The company has the right to provide for another way to confirm the decision taken by the general meeting of the company's participants and the composition of the company's participants. The list of such methods is not defined by law, and in paragraph 3 of Art. 67.1 of the Civil Code of the Russian Federation, only some of them are given (signing of the protocol by all participants or part of the participants; using technical means that make it possible to reliably establish the fact of a decision). A specific method can be prescribed in the charter of the company or directly in the minutes of the general meeting of participants. In the latter case, the decision on the choice of method is made only unanimously.

The protocol is signed by the chairman and the secretary, filed in the protocol book. As appendices, the minutes should include voting ballots, as well as evidence of compliance with the certification procedure (certificate of a notary, media with a video recording of the meeting, and others). Not later than within 10 days after the compilation, the protocol is sent to all participants in the company (clause 6, article 37 of the LLC Law).

In a company consisting of one participant, instead of a protocol, a decision is drawn up, while the requirements of paragraph 3 of Art. 67.1 of the Civil Code of the Russian Federation does not apply to such a decision, that is, it is drawn up in a simple written form. Also, in this case, it is not required to follow the procedure for convening and holding a meeting, which is defined by articles 36, 37 of the LLC Law.

On the terms of payment of dividends and the mechanism for their payment

So, as soon as the general meeting of the company's participants or its sole participant decides on the distribution of net profit, the company has an obligation to pay the participants the appropriate sums of money. The deadline for the execution of such a decision is 60 days from the date of its adoption, although the charter of the company or the decision of the participants may establish a shorter period (clause 3, article 28 of the LLC Law).

The procedure for paying dividends is established by the charter of the company or is prescribed directly in the minutes of the general meeting of participants in the company. The LLC Law does not define the form in which dividends are paid. As court practice shows, in addition to monetary form, dividends can also be paid in non-monetary form, for example, by transferring finished products, goods, and property rights subject to valuation to participants in the company (see Decree of the Federal Arbitration Court of the Volga-Vyatka District of 04.04. 2012 in case No. A82-11199 / 2010, Resolution of the Federal Arbitration Court of the East Siberian District of March 4, 2011 in case No. A33-11998 / 2009).

If declared dividends are not paid when due

If, after the expiration of the period established by the LLC Law, the charter or the decision of the participants, dividends have not been paid, then the participant has the right to demand that the company pay them. The period during which a participant has the right to apply to the company with such a demand is three years after the expiration of the dividend payment period, although the company's charter may establish a longer period, which in any case cannot be more than five years from the date of expiration of the payment period for the part of the distributed society's profits.

The missed deadline for filing a claim for the payment of dividends is not subject to restoration, unless a member of the company was unable to file such a claim under the influence of threat or violence. At the same time, the amount of dividends distributed, but not claimed by a member of the company, after the expiration of the specified period, is subject to recovery as part of the retained earnings of the company (clause 4, article 28 of the LLC Law).

“The missed deadline for filing a claim for the payment of dividends is not subject to recovery, unless the company member was unable to file such a claim under the influence of threat or violence”

In addition to the requirement to pay dividends, the participant is also entitled to receive interest from the company in accordance with Art. 395 of the Civil Code of the Russian Federation. This is confirmed by judicial practice (see Resolution of the Arbitration Court of the Central District dated 04/03/2017 No. F10-979/2017 in case No. А35-4279/2016, Resolution of the Fifth Arbitration Court of Appeal dated 08.08.2017 in case No. А59-6253/2016).

Stop Factors for Profit Distribution and Dividend Payments

The LLC Law establishes a list of cases when a company is not only not entitled to pay dividends to the company's participants according to the decision made, but is not even entitled to make a decision on the distribution of net profit. These cases are listed in Art. 29 of the LLC Law. Thus, the company is not entitled to make a decision on the distribution of profits until the authorized capital is paid in full, before the payment of the actual value of the share or part of the share of a member of the company, if at the time of making such a decision the company meets the signs of bankruptcy or if the indicated signs appear in the company as a result of such a decision; if at the time of the decision the value of the net assets of the company is less than its authorized capital and reserve fund or becomes less than their size as a result of such a decision. In the last two cases, the company is not entitled to pay dividends, despite the decision already made.

Some jurisprudence

In conclusion, we will talk about some judicial acts that, in our opinion, deserve attention.

Resolution of the Tenth Arbitration Court of Appeal dated December 27, 2017 in case No. А41-81216/17. The essence of the dispute lies in the fact that Paribas LLC filed a lawsuit against Krasnogorye-DEZ LLC, of ​​which it is a member, about the obligation to hold a general meeting of the company's participants on the approval of annual balance sheets and the distribution of net profit between the company's participants for 2014, 2015 and 2016 years. The Arbitration Court of the Moscow Region proceeded from the fact that Art. 35 of the Law on LLC, a company member holding in aggregate at least one tenth of the total number of votes of the company's members is granted the right to demand an extraordinary general meeting of members. The plaintiff, who owns a 10% stake in the defendant's authorized capital, has repeatedly applied to the executive body of the company with a request to hold a general meeting on the approval of annual reports and distribution of profits. However, the defendant did not hold such a meeting and did not provide a reasoned refusal to hold it with the proposed agenda. In view of the foregoing, the claims of Paribas LLC were recognized as justified and subject to satisfaction. The Court of Appeal agreed with the decision.

Resolution of the Eighth Arbitration Court of Appeal dated January 26, 2018 in case No. А46-16046/2016. The heir of the deceased member of the LLC filed a lawsuit to recover from the defendant the distributed but unpaid profits between the members of the company, as well as interest on the use of other people's in cash. The court found that the plaintiff is the heir to a share in the authorized capital in the amount of 21.12%, which belonged to the deceased before 03/28/2012. The right to inheritance is confirmed by a certificate dated 17.08.2015. On April 22, 2014, the Company made a decision on the distribution of net profit for 2013. The fact of non-payment of dividends was the basis for the plaintiff's appeal to the court. Satisfying the claims, the Arbitration Court of the Omsk region proceeded from the following. According to the provisions of Art. 1152 of the Civil Code of the Russian Federation, in order to acquire an inheritance, the heir must accept it. The accepted inheritance is recognized as belonging to the heir from the day the inheritance was opened, regardless of the time of its actual acceptance, and also regardless of the moment of state registration of the heir's right to inherited property, when such a right is subject to state registration. The company's (defendant's) charter provides that a share in the company's charter capital is transferred to the heirs of citizens who are members of the company only with the consent of all other members. In accordance with the minutes of the extraordinary general meeting of participants dated June 26, 2016, the plaintiff was included in the company's participants with a share of 21.12% of the authorized capital. The court of first instance correctly concluded that as a result of universal succession during inheritance, the plaintiff received a share in the authorized capital of the defendant and the right to demand payment of dividends arose from the moment the inheritance was opened, that is, from the date of the death of the testator (03/28/2012). Since, during the consideration of the case, the circumstances preventing the payment of dividends for 2013 were not established, the court of first instance satisfied the claims of the plaintiff. The Court of Appeal upheld the decision.

The issues of taxation when paying dividends are considered in the article by M.V. Gladkova "Taxation and reporting of LLCs when paying dividends".

 


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