Agreement on real value. Accounting for the payment of the share of property, when the Yurlitz exit from LLC. Legal regulation of a participant's output from society

The issuance of property by the Company's member at the expense of the actual value of the share at its output

The participant's output from LLC must be accompanied by the payment of the actual value of the share in the authorized capital - no matter how it is undesirable for society or other participants. At the same time, attempts by the remaining participants in the Company minimize the effects of exit, as a rule, fail: the law in this case on the side of the exit participant.

Case number A46-6331 / 2016

From the case materials:

Member of LLC - Petrov A.A. It was out of society and demanded to pay the actual value of the share. In three months, money was not transferred, the participant appealed to the court.

The society, not agreeing with the plaintiff, referred to the agreement on the procedure for the payment of the value of Petrova's share, approved by the decision of the general meeting of participants and signed by Petrov. This agreement was decided to pay the cost of the share in the following order: to issue Petrov tools, materials, office equipment, as well as cash in the amount of 557 thousand rubles. (including NDFL) subject to the receipt of funds from several counterparties. Actually Petrov A.A. A tool was received, an office inventory and cash in the amount of 100,050 rubles.

The plaintiff rated the value of the share of more than 1.5 million rubles, submitted to the materials of the company's accounting balance of society, as well as a report on the assessment of the market value of the share.

The Arbitration Court of the Omsk Region by decision of 03/18/2016 (Judge E. Brachetskaya) in case No. A46-6331 / 2016 satisfied the claims. Appeal and cassation did not change the decision. The Supreme Court of the Russian Federation refused to transfer the case for consideration by the judicial board, approved the conclusions of the lower courts.

Conclusions of ships:

1. The agreement on the procedure for the payment of the share of the share does not meet the criterion of a corporate agreement, but is an agreement on a certain issue.Changing the procedure for paying the actual value of the share of society established by law may be provided for only by the Charter of the Company.The size of the actual value of the share of Petrova A.A. It can only be determined on the basis of accounting documents, taking into account the market assessment.

2. The defendant does not take into account the imperative character of paragraph 2 of Article 14, paragraph 6.1 of Article 23 of the Federal Law "On OOO", regulating the procedure for determining the size of the actual value of the share paid by the participant when it comes from society.

3. Despite the existence of an agreement with the list of property to be transferred to the plaintiff, signed by the participants of the Company with the plaintiff, after entering it from society, the courts recognized that this agreement could not change the imperative norms of the Federal Law "On LLC" and limit the participant's right to receive the value of its Shares in the order and size established by law.

4. The parties have the right to come to an agreement on the payment of the actual value of the share of the Company's participant by issuing property in kind, but the cost of the specified property must correspond to the value of its share in monetary terms determined on the basis of accounting documents.

5. From the agreement on the procedure for the payment of the value of the share is not possible to conclude that the property transferred to the plaintiff corresponds to the value of its share in the authorized capital of the Company. For information on the actual value of the named property, the court does not have. In addition, the plaintiff claims that this property belonged to him, and in connection with the coming out of society he took it.

Comments:

1. The position of the court is clear: the real value of the share after the release of the participant from the Society can theoretically be carried out by transferring property of equal value. However, the parties should clearly determine the cost of such property. In addition, the total value of the property transmitted to the submitting participant should be equivalent to the actual value of its share determined according to the financial statements.

2. The participants of the Company failed the fact that, concluding an agreement on the procedure for paying the value of the share with Petrov, they did not think about the perspective of a judicial dispute, where in comparison of the Agreement with federal law And the charter of society, the agreement, of course, will lose.

3. Following the arguments of the Supreme Court of the Russian Federation for this case on the imperativeness of the norms about the payment of the actual share of the share of the share in full, we conclude that any agreement of participants, reducing or increasing such payment (even concluded with the will of the published participant), will be illegal as a change in the imperative norm of the law on societies with limited liability.

Yana Polskaya


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The payment of the share of the participant LLC when leaving is a rather difficult mechanism regulated by the special norms of the relevant law, taking into account the numerous solutions of the courts issued due to the proceedings of the controversial issues between the participant and the company. Consider the reasons for the cessation of participation in obtaining the relevant amount, the procedure for its calculation, payment, the period of transferring money or things, the consequences of non-payment of share on time and some other issues, the answers to which allow you to avoid practical errors and subsequent disputes (including judicial).

The exit of the founder from the LLC with the payment of the share: the right, cases, reasons

In the terminology of the law "On OOO" from 08.02.1998 No. 14-FZ, paragraph 1 of Art. 26 Which, under the release of the participant, implies the transfer of their own share for the fee of society. However, if we talk about the cessation of your participation in the organization, it may also occur due to exception (Article 10 of the Law 14-FZ), upon the occurrence of death (paragraph 8 of Art. 21 of the Law 14-FZ), succession legal entity (paragraph 8 of Art. 21 of the Law 14-FZ), in the case of payment by organizing the requirements of creditors of any of the participants (paragraph 6 of Art. 23 of the Law 14-FZ).

With the actual output of the participant (the voluntary decision to leave the composition of the participants) due to the provisions of paragraph 6 of Art. 23 of the 14-FZ law its share passes to the Company itself, and its value is paid according to the established procedure. The right to the yield is also fixed normatively (paragraph 6 of paragraph 1 of Art. 8 of the Law 14-FZ), but must be specifically stipulated in the constituent document of the enterprise (paragraph 8 of paragraph 2 of Article 12 of the Law 14-FZ), otherwise the participant The right of exit does not possess.

The law indicates the cases in which the output and alienation of the share may be caused by certain circumstances, including:

  • due to the adoption by the Company of the Society for the increase in the authorized capital when the participant's voting against (paragraph 2 of paragraph 2 of Art. 23 of the Law 14-FZ);
  • if the participant objected to the decision to commit large transaction, but the decision was made by the necessary majority of votes (paragraph 2 of paragraph 2 of Art. 23 of the Law 14-FZ);
  • upon entry into force of the decision of the court on the exclusion of the participant from LLC (clause 4 of Art. 23 of the Law 14-FZ).

In all these cases, the Society itself is obliged to pay the value of the share of the published (or excluded by the court decision), as the share of such a participant proceeds to society.

Methods for calculating the share at the exit of the participant from LLC

Options for determining the actual value of the share of the Company's member are indicated in the para. 3 p. 4 tbsp. 21 of the Law 14-FZ. The cost of a share can be determined by various ways:

  • consolidate in advance in the charter in the form of a fixed amount;
  • based on the cost of assets of the organization;
  • based on the size of the organization's profit;
  • based on the book value of all assets owned by the company;
  • supported on other criteria indicated in the company's charter.

However, para. 3 p. 2 art. 23 of the Law 14-FZ indicates only one way to determine the cost of a share in the event of the participant's exit in the terminology of this legal Act (Transition to the share of the participant to society) - on the basis of accounting documentation for the period preceding the exit.

This provision is submitted not to the realities and rights of the Company's participant, who has decided to exit, due to the fact that:

  • in actual ownership and dispossession of the Company, there may be assets that are not reflected in accounting;
  • the accounting value of one or another property may not correspond to actual market prices;
  • an accounting assessment value of assets may lose the relevance at the time of the exit (for example, due to serious economic shocks in the country), etc.

Judicial practice adheres to a similar position, which was repeatedly noted among the number of the Supreme Court in the definitions of 08.02.2016 No. 304-ES15-18781, from 03.03.2016 No. 307-ES15-12742, etc.

Procedure evaluation

To calculate the cost of the share of each of the participants, the cost of net assets of the enterprise is taken into account. In accordance with paragraph 4, the procedure for determining the cost of net assets approved by order of the Ministry of Finance of 28.08.2014 No. 84n, net assets are defined as all available assets of the company, reduced on its obligations. Also, due to the specified norm, the offensive assets and liabilities (for example, debt, the limitation period for which has already expired) is not taken into account in this calculation.

Abz 2 p. 2 Art. 14 of the Law 14-FZ indicates that the actual value is equal to the cost of pure assets divided into the nominal size of the share determined as percent or fraction (paragraph 1 of the specified norm).

As an example, consider the cost of clean assets in the amount of 100,000 rubles, and the size of the share is 25% (or ¼). Then the member of the participant who agreed to exit the society will be 100,000 × 25% \u003d 25,000 rubles.

The calculation formula of the due payment from the beginning of the procedure will be as follows:

DS \u003d (A - P) × D,

A and P - assets and liabilities of the enterprise, respectively, taken into account on the balance sheet accounts;

D - the size of the participant's share in the form of a percentage or fractional number.

Important: due to the Order No. 84n, when calculating net assets, not taken into account:

  • accounting objects, taken into account on off-balance accounts;
  • receivables of participants of LLC;
  • revenues of future periods recognized in connection with the receipt of property at no cost, as well as help from the state.

To avoid conflicts and subsequent legal proceedings, if there is disagreement with a fixed accounting department, it is advisable to conduct an examination (assessment) of the market value of controversial assets (liabilities) or the entire complex. To carry out this procedure, you must contact the services of independent experts.

The procedure for paying the share of the participant LLC when

After receiving the Society, the requirements of the participant on paying the actual value of its share in connection with the exit, it is obliged to produce it no later than 3 months. This period is enshrined by para. 3 p. 2 art. 23 of the Law 14-FZ, but the Charter of the Organization, it can be changed in a large or smaller side.

The inclusion in the charter on the establishment of a different period, rather than a certain law, can be carried out not only when establishing an organization, but also later. However, the law requires that all participants voted for such a change, otherwise it cannot be considered accepted.

To receive the appropriate notice from the participant, the need to evaluate the net assets of the enterprise, which will determine the final amount due to the participant.

The form of paying a valid value according to para. 3 p. 2 art. 23 of the Law 14-FZ can be not only monetary, but also natural, that is, in the form of things equal value. In this case, the natural form may only take place with the consent of the participant himself.

The transfer of cash or property to the relevant cost must be fixed. The confirmation of such payments can be both documents confirming the fact of non-cash payment and written receipts from the exiting participant. This receipt has a free form, but by virtue of paragraph 2 of Art. 23 of the Law 14-FZ should contain an indication, for which one or another asset is transmitted and what is its value.

The consequences of untimely payout

Payment of the participant of the Company's value of its share in the event of a release is the responsibility of this company by virtue of para. 3 p. 2 art. 23 of the Law 14-FZ. The failure to pay the cost of the share in the enterprise provided by law or the charter of the enterprise entails certain negative consequences for this companyassociated with additional financial costs.

Thus, from the first day, the payment for the period of payment, the published participant is entitled to make requirements in court the work of such payments, as well as interest accrual for the use of other people's cash Based on Art. 395 Civil Code of the Russian Federation.

In addition, in accordance with para. 5 p. 8 tbsp. 23 of the 14-FZ law, according to a written statement of the Company's participant, it should take it back on the basis of the impossibility of paying it the cost of its share and provide property.

Recovery of non-pecuniary damage, including from the point of view of vessels (for example, the Resolution of the Federal Arbitration Court of the Volga District dated March 13, 2008 in case No. A55-5543 / 07), it is not possible in such a situation. Caused by this contradiction this requirementAccording to the courts, the very rate of Art. 151 of the Civil Code of the Russian Federation on compensation for moral damage.

Installed restrictions

With the payment under consideration, the participant who decided to leave the company in the status of the participant, the law establishes a number of restrictions, up to a complete ban on the implementation of such payment (as well as the provision of similar value property).

Based on para. 4 p. 8 art. 23 of the Law 14-FZ Organization should not pay the participant's published value in two cases:

  • if an enterprise has signs of bankruptcy;
  • if the payment will lead the enterprise to insolvency.

Also, the company cannot pay the amount to the amount exceeding the difference between pure assets and minimum size authorized capital. But the amount of payments can exceed the difference in net assets and authorized capital, if its size is higher than the minimum (but the latter is subject to proportionate decrease) - para. 2 p. 8 art. 23 of the Law 14-FZ.

RESULTS

So, summarize:

  • the share of the exit participant proceeds to an organization that should implement it to the valid value of the share;
  • its size depends on accounting reporting for the previous period, but other methods of evaluation (including the expertise of the value of assets in the market) are allowed;
  • the cost of the share is determined by multiplying the net assets of the enterprise to the share of the published participant;
  • the payment of the general rule should be made no later than 3 months, and constituent document may be provided for a different period;
  • payment can be carried out in a natural form (but only in the presence of the written consent of its recipient);
  • when non-payment, interest on it can be accrued for it. 395 of the Civil Code;
  • payment cannot be made if the enterprise is bankrupt and has the appropriate features.

How to reflect in accounting to pay the real value of real estate by two participants after their release from LLC. According to the agreement of the parties, the actual value of the share is determined by the amount of 33,000 million, the residual value of objects without revaluation of 2 million. Registration of the transfer of property rights to the property occurred on November 26, 2015 And by agreement of the parties, the object will be transferred to 01.02.2016. Can I first make the address of all real estate objects (there are experts' conclusions) in December 2015, and in February 2016 on the act of transferring objects to write off the fixed assets in the real value? Is it possible to make the property of the property of the property right to which one has passed?

Accounting for paying the actual value of the participant's share reflects on account 75 "Calculations with the founders". The reassessment of property in the specified situation is impossible.

On the basis of an application for the release of the participant from the Company in accounting, the accounting is made:

Debit 81 Credit 75 subaccount "Member"

- Reflects the transition of the participant's share to the organization.

This wiring reflects the actual cost of the participant's share.

Calculate the participant is needed within three months from the date of the statement of exit from LLC. The disposal of real estate, taken into account in the composition of fixed assets, which is transmitted to the cost of the share, reflect similarly to the operation of the implementation, at the date of the transfer of ownership:

Debit 01 subaccount "Disposal of fixed assets" Credit 01

- reflected the initial (restorative) value of the departing fixed assessment;

Debit 02 Credit 01 subaccount "Disposal of fixed assets"

- reflected depreciation accrued for the period of operation of the object.

Debit 91-2 Credit 01 subaccount "Disposal of fixed assets"

- reflected the residual value of the outgoing fixed assessment;

Debit 75 subaccount "Member" Credit 91-2

- Reflects the transfer of a fixed assessment to the actual value of the share.

When paying the participant's actual value of the share in the authorized capital of the LLC you need to keep NDFL:

Debit 75 subaccount "Member" Credit 68 subaccount "Calculations on NDFL"

- Lifted by NDFL from the participant's incomes.

In addition, from the difference between the actual and nominal value of the share, VAT should be accrued at the appropriate rate if the realization of the property is subject to VAT. Accounting reflects the accrual of tax:

Debit 91-2 Credit 68 subaccount "Calculations on VAT"

- Accrued VAT from the difference between the actual and nominal value of the share paid by the property.

The revaluation of fixed assets in the accounting accounting is carried out on strictly established rules. In the specified case, the property drops out of the main funds on the date of the transition of the right of ownership and is not revalued.

Until the actual transmission of the participant, its cost can be taken into account on the off-balance account, for example, as property in responsible storage:

- reflects the value of the assets adopted for responsible storage.

Accounting: payout

You can pay with the founder (participant) both money and property (with its consent). It is necessary to do this for three months from the date of submission by a member of the statement about the exit of society, unless otherwise provided in the Charter ().

Paying the actual value of the share reflect the wiring:

Debit 75 subaccount "Member" Credit 51 (50)
- the actual value of the participant's share less deduction of the personal income tax was paid.

Accounting: the transition of the participant's share to the organization

Upon receipt of the application for the exit of the founder (participant) from the Company in accounting, make wiring:

Debit 81 Credit 75 subaccount "Member"
- Reflects the transition of the participant's share to the organization.

Situation: What is the cost of the share of the founder (participant) in the authorized capital of the LLC - nominal or valid - written off in account when submitting a statement about the exit of society

When leaving the society of the founder (participant) in accounting, you will spish the actual value of its share.

According to the debit of account 81 "Own stocks (shares)" reflect the amount of actual costs - the amount you need to pay the founder (participant) (instructions for account plan). Ltd. should pay the founder (participant) the actual value of the share (clause 6.1 of Art. 23 of the Law of February 8, 1998 No. 14-FZ). Therefore, in the debit of account 81 "Own stocks (shares)" take the actual value of the share.

An example of reflection in accounting accounts with a participant at its output from LLC

Volkov decided to get out of the participants. On July 16, his statement about the release was enrolled in society. The actual value of the share of Volkova is 220,000 rubles.

In the account of the organization made posting:

Debit 81 Credit 75 subaccount "Participant of Wolves"
- 220 000 rubles. - Reflects the transition of Volkov's share to the organization.

NFFL and Insurance Contributions

At the exit of the participant from the NDFL society, it is necessary to impose the entire valid value of its share in the authorized capital of LLC.

The right to reducing taxable income is provided for by law only in the case of a share in the authorized capital of the Company (). With the release of the founder (participant), the share of the share does not occur. Therefore, ndfl should be calculated from the entire amount of the actual value of the share.

This point of view is reflected in the letters of the Ministry of Finance of Russia dated June 17, 2014 No. 03-04-05 / 28920, dated June 21, 2013 No. 03-04-05 / 23404, of June 15, 2012 No. 03-04-06 / 3-170, the Federal Tax Service of Russia dated August 1, 2012 No. EG-3-3 / 2692. Support this position arbitration courts (See, for example, Resolutions of the FAS of the Ural District of April 10, 2013 No. F09-2009 / 13, the North Caucasus District of February 21, 2013 No. A53-13671 / 2012).

In accounting when holding ndfl, make wiring:

Debit 75 subaccount "Member" Credit 68 subaccount "Calculations on NDFL"
- Passed NDFL from the income of the founder (participant).

An example of reflection in accounting NDFL with payments accrued by the founder when leaving the company

The authorized capital of LLC "Trading Firm" Hermes "" is 100,000 rubles. It is divided into shares between the three participants:

  • share A.V. Lviv - 25 000 rubles;
  • share E.E. Thunder - 25,000 rubles;
  • share V.K. Volkova - 50,000 rubles.

Gromova decided to leave the founders. On July 16, her statement about the release was enrolled in society. The actual value of the share of Glebova is 52,500 rubles, August 20, the Cassier "Hermes" paid a thunder-thunder amount. Gromov is a resident of Russia.

When calculating the NDFL, the accountant was guided by the position of the Ministry of Finance of Russia. The following entries are made in accounting.

Debit 81 Credit 75 subaccount "Participant Gromov"
- 52 500 rubles. - Reflects the transition of a share of thunder to the organization.

Debit 75 subaccount "Participant Gromov" Credit 68 subaccount "Calculations for NFFL"
- 6825 rub. (52 500 rubles.? 13%) - Pustomized personal income tax with the actual value of the share of thunder;

Debit 75 subaccount "Participant Gromov" Credit 50
- 45 675 rubles. (52 500 rub. - 6825 rubles) - the participant's real value of its share in the authorized capital was paid.

The amounts paid by the founder (participant) when it comes from society cannot be taken into account as payment within labor relationshipNor as a remuneration for the work performed (services rendered) on a civil law agreement. Therefore, these payments are not subject to:

  • contributions for compulsory pension (social, medical) insurance (Part 1 of Article 7 of the Law of July 24, 2009 No. 212-FZ);
  • accident Insurance and Profa Bulk Contractions (paragraph 1 of Article 20.1 of the Law of July 24, 1998 No. 125-FZ).

As a rule, the exit of the founder (participant) from LLC does not affect the taxation of the organization's income.

Payments to founders (participants) are not expenses related to business activities. Shares that have passed to the organization can not be taken into account when determining the results of the vote on general meeting participants, as well as in the distribution of profits (dividends) (). Thus, one of the main conditions is not fulfilled to recognize spending in tax accounting - communication with activities aimed at receiving income. Therefore, the amounts accrued by founders (participants) upon leaving the Company cannot reduce the tax base for income tax (clause 1 of article 252 of the Tax Code), nor for a single tax on simplified from the difference between income and expenses (paragraph 2 Art. 346.16 of the Tax Code of the Russian Federation).

Organizations paying a single tax with income on income at all do not take into account any expenses (), and the object of ENVD is imputed income (paragraph 1 of Art. 346.29 of the Tax Code of the Russian Federation). Therefore, when calculating the tax base of payments to released from LLC, founders cannot be taken into account.

If, when leaving LLC, the participant gave way to society to society in the authorized capital, the cost of the property rights received is recognized by non-deactive income. Such an income increases the tax base for income tax and for a single tax on simplified (paragraph 8 of Art. 250, paragraph 1 of Art. 346.15 of the Tax Code of the Russian Federation). Similar explanations are contained in the letter of the Federal Tax Service of Russia of July 1, 2010 No. Shs-37-3 / 5674.

Situation: In which cases, with compensation, the founder (participant) of the actual value of its share in the authorized capital of the organization arises taxable income. The organization applies general System Taxation (simplified)

In some cases, after calculations with the Founder Coming from Ltd., the organization applies the general tax system or simplified, taxable income arises (, paragraph 1 of Art. 346.15 of the Tax Code of the Russian Federation).

This is possible if the organization is calculated with the founded founder (participant) and if:

  • the cost of the transmitted property, confirmed by the conclusion of an independent appraiser, is less than the actual value of the share of the departing founder (participant) (the letter of the Ministry of Finance of Russia of November 15, 2005 No. 03-03-04 / 1/355);
  • the cost of the transferred property according to tax accounting less than the actual value of the share (the letter of the Ministry of Finance of Russia of September 24, 2008 No. 03-03-06 / 2/127);
  • the actual value of the share of the retired founder (participant) is greater than its nominal value, and the founder (participant) at the exit refused to pay to the actual value of the share in favor of the organization (the letter of the Ministry of Finance of Russia of August 17, 2010 No. 03-03-06 / 1 / 553).

Glavbukh advises: There are arguments that allow the organization to not reflect income if the cost of the transferred property according to the tax accounting data is less than the valid value of the share. They are as follows.

At the same time, this approach can lead to disagreements with verifiers. Arbitration practice on this issue has not yet developed.

VAT

If with the founder (participant) emerging from the Company, the organization is calculated by the property, then from the difference between the actual and nominal value of the share, the VAT must be accrued at the corresponding rate (10/110 or 18/118) and set an invoice (sub. 1 paragraph 2 of Art. 146, sub. 1, paragraph 3 of Art. 39 of the Tax Code of the Russian Federation, the letter of the Ministry of Finance of Russia of April 17, 2012 No. 03-07-11 / 112). Such a responsibility applies only to the companies that are payers of this tax. Societies that apply special tax regimes, VAT does not pay (paragraph 2 of Art. 346.11, paragraph 4 of Art. 346.26 of the Tax Code of the Russian Federation).

In accounting accrual VAT reflect the wiring:

- Accrued VAT from the difference between the actual and nominal value of the share paid by the property.

An example of calculating VAT from the value of the property transferred to the payment of the participant's share at its output from LLC. The organization applies the general tax system

The authorized capital of LLC "Trading Firm" Hermes "" is 10,000 rubles. It is divided into shares between the three participants:

  • share A.V. Lviv - 2500 rubles;
  • share A.S. Glebova - 2500 rubles;
  • share V.K. Volkova - 5000 rubles.

Volkov decided to come out of the founders. The actual value of its share is 7000 rubles. In the payment of the share of the Organization issues Volkov cellular telephone worth 7000 rubles. (Such a price corresponds to the market level and is consistent between the Volkov and other participants).

When transferring the phone to the Volkov, the "Hermes" accountant calculated VAT:
(7000 rub. - 5000 rubles.)? 18/118 \u003d 305 rub.

In the account of the organization made a record:

Debit 91-2 Credit 68 subaccount "Calculations on VAT"
- 305 rubles. - Accrued VAT to the budget.

How to revaluate fixed assets

The initial value for which the fundamental means was taken into account is not subject to change. Except for the cases listed in paragraph 14 of PBU 6/01. In particular, the revaluation includes such cases. According to the results of the revaluation, the main remedy can be separated or overwhelmed. The organization can revaluate any fixed assets, exceptions from this rule by law is not provided for (paragraph 15 of PBU 6/01, paragraph 43 of the methodological instructions approved).

Revaluation frequency

To revaluate fixed assets, the organization can once a year at the end of the reporting year, that is, on December 31. At the same time, it can be carried out only by groups of homogeneous objects. Thus, it is not necessary to revaluate all fixed assets. However, overestimated one object from the group of homogeneous fixed assets, it is necessary to overestimate and all other objects included in this group. Such an order follows from paragraph 15 of PBU 6/01 and paragraph 43 of the methodological instructions approved by the Order of the Ministry of Finance of Russia of October 13, 2003 No. 91n.

Situation: What are the deadlines for the revaluation of fixed assets

The revaluation of fixed assets is carried out as of December 31 of the reporting year. The results of the revaluation are taken into account when generating accounting data for this year. This was said in paragraph 15 of PBU 6/01 and paragraph 43 of the methodological instructions approved by the Order of the Ministry of Finance of Russia dated October 13, 2003 No. 91n.

Annual balance sheet should be approved depending on the organizational and legal form, in particular:
- the general meeting of shareholders (AO) - not earlier than two months and no later than six months after the end of the fiscal year (paragraph 1 of Art. 47, the Law of December 26, 1995 No. 208-FZ);
- The general meeting of participants (LLC) is no earlier than two months and no later than four months after the end of the fiscal year (sub. 6 p. 2 of Art. 33, the law of February 8, 1998 No. 14-FZ).

Thus, the possible deadlines for the revaluation of fixed assets are the period from December 31 of the reporting year before the approval of the annual balance sheet at the general meeting of shareholders (participants) following the year.

Situation: how to identify groups of homogeneous facilities of fixed assets for the purposes of revaluation

The revaluation of fixed assets can only be carried out by groups of homogeneous objects (paragraph 15 of PBU 6/01, clause 43 of the methodological instructions approved by the Order of the Ministry of Finance of Russia dated October 13, 2003 No. 91n). However, groups of homogeneous facilities of fixed assets are not established by law. In paragraph 44 of the methodological instructions, approved by the Order of the Ministry of Finance of Russia of October 13, 2003 No. 91n, are given as an example three groups of homogeneous facilities of fixed assets:

  • building;
  • facilities;
  • vehicles.

Therefore, the rest of the groups of homogeneous objects should establish independently, speaking these provisions in accounting policies for accounting purposes. For example, by paragraph 3, the methodological instructions approved by the Order of the Ministry of Finance of Russia dated October 13, 2003 No. 91n, the following groups of homogeneous fixed assets can be established:

  • gear devices;
  • working and power machines and equipment;
  • measuring and regulating devices and devices;
  • computer Engineering (office equipment);
  • tool;
  • production, economic inventory and accessories;
  • perennial plantings;
  • outdoor roads.

Regularity of revaluation

The fixed assets, once reassessing, should be overeactible regularly (p. 15 PBU 6/01, clause 44 of the methodological instructions approved by the Order of the Ministry of Finance of Russia dated October 13, 2003 No. 91n).

The irregular implementation of subsequent revaluation on fixed assets is an offense (), for which tax and administrative responsibility is provided. With irregular revaluation on account 01 (), unreliable information on the cost of fixed assets previously undergoing revaluation will be reflected. Responsibility for such an offense provides for the Tax Code of the Russian Federation.

If the organization once missed the period established in accounting policies for accounting purposes for the revaluation, the tax inspectorate is entitled to finish the organization in the amount of 10,000 rubles. If two times in a row and more - the size of the fine will increase to 30,000 rubles.

The violation, which led to the inclination of the tax base for property tax, entail a fine of 20 percent of the amount of unpaid tax, but not less than 40,000 rubles.

Disposal of buildings or structures

If the building, construction (their parts) is transmitted to the buyer before the transfer of ownership rights is registered in the prescribed manner, then at the time of signing the act in form No. OS-1A objects (part of the object) cease to have all signs of fixed assets. Therefore, the residual value of buildings, structures (their parts), without waiting for the implementation (transition of ownership), must be written off. The financial department recommends using 45 subaccount for these objectives for these purposes. -4-3 / 5085). Such economic operation is reflected by the wiring:

Debit 45 subaccount "Transferred real estate objects" Credit 01 subaccount "Disposal of fixed assets"
- Written the residual value of the outgoing fundamental means (or part of it), the ownership of which is subject to state registration.

VAT in the transfer of real estate to the State Registration is charged, without waiting for the transition of ownership (paragraph. 167 of the Tax Code of the Russian Federation).

In the accounting tax reflect in a special order. Using an account 76. Discover subaccount "VAT for real estate, the transition of ownership of which is registered."

When transferring real estate to state registration, make such an entry:

Debit 76 subaccount "VAT on real estate, the transition of ownership of which is not registered" Credit 68 subaccount "Calculations on VAT"
- Accrued VAT by goods (products), the ownership of which goes to the buyer in a special order.

After the ownership is registered, the accrued VAT will be sprinkled in the debit of account 91-2:

Debit 91-2 Credit 76 subaccount "VAT for real estate, the transition of ownership of which is not registered"
- Reflects VAT from revenue from sales.

Revenue and expenses when implementing a fixed assessment

To account for income and expenses from the sale of fixed assets, use:
- account 91-1 "Other incomes", on which reflect the revenue from the implementation of the object;
- Score 91-2 "Other expenses", which reflect the residual value of the retired fundamental fundamental and other expenses related to its sale.

Revenue from implementation, reflect the composition of other revenues when the ownership of the sold primary means passes to the buyer. For real estate, this is the moment when the ownership is registered. Revenue recognize the amount provided for in the purchase and sale agreement (deliveries, mena).

At the same time, in other expenses, include the residual value of the mainstater sold and other costs associated with the sale. For example, costs of storage, packaging, maintenance, transportation, etc.

Such an order is provided for in paragraphs and PBUs 6/01, paragraphs (Art. 6 of the Law of December 6, 2011 No. 402-ФЗ).

When reflecting income and expenses from the sale of the main means, make wiring:

Debit 62 (76) Credit 91-1
- reflected proceeds from the implementation of the fixed assessment;

Debit 91-2 Credit 68 subaccount "Calculations on VAT"
- VAT is accrued when implementing a fixed assessment (if the organization's activities are subject to VAT);

Debit 91-2 Credit 01 subaccount "Disposal of a fixed assessment" (account 45 subaccount "Transferred real estate")
- reflected as part of some expenses the residual value of the main fund sold (the residual value of the fixed assessment, the ownership of which is subject to state registration);

Debit 91-2 Credit 10 (60, 69, 70, 76 ...)
- taken into account as part of other expenses costs related to the sale of fixed assets (for example, costs for appraiser services, transportation costs, etc.);

Debit 19 Credit 60 (76)
- Reflects VAT on costs associated with the sale of fixed assets.

If the costs associated with the implementation of the fixed assessment exceed the income received from the sale, the difference between them recognize the loss. In accounting amount, the loss is referred to the costs of the current period and include in other expenses at the same time, when the implementation occurred (paragraph 11 of PBU 10/99).

The alienation of the participant of Ltd. Society can hardly be called the usual way out of business. This, in particular, is evidenced by the possibility of limiting this law of the participant by the Charter (Art. 26 of the Law on LLC). Obviously, such actions are most often due to the corporate conflict or the reluctance of the participants of the LLC see as a partner of one of the heirs.

In this case, when the participant leaves from the company, the Company is obliged to pay the participant the actual value of its share in the authorized capital of the Company, which is determined on the basis of the accounting reporting data for the last reporting period (paragraph 6.1 of Art. 23 of the Law on OOO).

By virtue of Art. 14 of the Law on LLC The real value of the share of the participant in the Company corresponds to part of the value of the Company's net assets proportional to its share, but issues related to its definition cause the most fierce disputes.

So, what should be remembered when applying for the payment of the actual value of the share?

How to determine the actual value of the share?

The actual value of the share of general rule is paid in money. In kind, property is issued only with the consent of the participant.

Based on the provisions of the Law on LLC, the actual value of the share is determined on the basis of the Company's accounting reporting. Meanwhile, the carrying value of the property can differ significantly from the market, and therefore the calculated share price will not be fair. Indeed, in the case of the liquidation of society, its participants will receive a share in proportion to the value of the property of the Company implemented at market prices.

In addition, accounting reporting can also be simply unreliable, from which the participant of the Company is not insured.

Actually, therefore this question Often it is the subject of a dispute in the arbitration court.

In case of disagreement with the size of the actual value of the share determined on the basis of the accounting reporting data, the participant has the right to declare a petition for the examination to establish the actual value of the share, which follows from paragraph 16 of the Resolution of the Plenum Supreme Court RF and Plenum of the Supreme Arbitration Court of the Russian Federation of 09.12.1999 No. 90/14.

But how should the cost of such a share and which date should be calculated?

1. Determination of the market value of the Company's assets

For the first time, the court allowed to go beyond the accounting balance in the decision of the Presidium of the Supreme Court of the Russian Federation of September 6, 2005 No. 5261/05.

In the future, this position, by virtue of which the calculation of the actual value of the share should be determined taking into account the market value of real estate, was confirmed in the decision of the Presidium of the Wheel of the Russian Federation of April 17, 2012 No. 16191/11. Such an approach is currently supported by the courts.

Example:Resolution of the AS MO of 28.11.2017 in case number A41-72731 / 2015,

Such cases can find a sufficient amount in the system. .

Moreover, not only real estate is subject to accounting, but also other assets:

  • securities,
  • property rights,
  • intellectual property.

On the one hand, this position is correct, since it takes into account the market value of the property of Ltd. in determining the actual value of the share, and on the other hand, it is not directly a market estimate of the company itself, which corresponds to the provisions of Art. 23 of the Law on LLC. After all, when determining the market value of the share, we will inevitably face questions about the use of discounts due to the fact that the estimated share is not a control, or simply illiquid, but this is already beyond the framework of the Law on LLC.

2. The use of coefficients in determining the actual value of the share

As a general rule, formulated in the Decree of the Presidium of the RF dated October 14, 2008 No. 8115/08, lowering and increasing coefficients are not subject to use in determining the actual value of the share of the participant LLC. Such a position for quite a long time adhered to arbitration practice. However, in the future, this approach was somewhat adjusted, the main provisions of which were determined in (Raevsky's case).

So, in particular, the Presidium of the Russian Armed Forces of the Russian Federation pointed out that the impossibility of using a lower coefficient to the value of the share does not indicate that the corresponding coefficient cannot be applied to the assessment of the Company's net assets, on the size of which the actual value of the participant's share depends on the size of which. In this case, the Company owned the packages of the shares of other companies, and therefore, when evaluating them, the expert applied a lower coefficient, based on liquidity and the possibility of influencing decisions. In other words, it was concluded that, when establishing the market value of the Company's assets, an appraiser expert can use appropriate discounts (discounts) based on approved evaluation standards.

What follows from this?

It follows that the definition of the actual value of the share is carried out taking into account the encumbrance of real estate, for example, mortgages (see).

3. If access to documents is limited

When considering a dispute on the recovery of the actual value of the share of the participant, LLC should take into account the favorable position of the LLC participant in the distribution of the burden of proof. The obligation to determine the magnitude of the net assets of society and the size of the actual value of its share is assigned to the Society itself, due to the legal position, set out in the decision of the Presidium of the RF data from 26.05.2009 No. 836/09.

C) in relation to personal income NDFL

In court, the actual value of the share of the participant LLC is to be recovered in full, and the holding and payment of the NDFL tax agent is made in the actual transfer of awarded amounts.

This is only part of the problems that participants inevitably face when collecting the actual value of the share, but in general short review These issues gives a general idea of \u200b\u200bthe prospects and forecasts of a potential claim.

Form and details of accounting certificate

The document on the actual value of the share owned by the participant of the Company is drawn up in the form of accounting certificate.

Accounting certificate is a clarifying document designed to reflect the detailed information about any economic operation in the company's activities.

In accordance with the provisions of Art. 313 NK RF Accounting Help is a primary document, so it is necessary to prepare it according to the rules for the preparation of primary documents established by Art. 9 of the Law "On Accounting" of 11/21/1996 No. 129-FZ (hereinafter - the Act of Accounting).

Since the unified form of such a document does not exist, the company can create it independently and approve by the order of the head about the document flow.

IMPORTANT! In the case of using independently developed forms primary documentation their application must be consolidated in accounting policies in accordance with the requirementsPBU 1/2008 "Accounting Policy of the Organization".

The necessary details of the primary documents for which not developed unified formsListed in sub. "A, g" paragraph 2 of Art. 9 of the Act Accounting. These include:

  • document's name;
  • date when it is prepared;
  • the name of the company, on behalf of which it is drawn up;
  • the content of the operation of the operation;
  • units;
  • position of the person in charge of this economic operation;
  • personal signature official.

This document is drawn up on a conventional sheet of paper and is pushed to that document that explains.

What is the nominal value of the share

The authorized capital of any LLC consists of the nominal value of the shares made by the company's founders. The concept of "nominal" implies that the cost of participants' share is equal to the cost of contributions made by them, that is, is the initial value of the contribution. The market value of the contribution may vary, and the nominal remains unchanged. It can only change if the authorized capital decreases or increases.

The size of the share of the company's founders is expressed as a percentage and is the ratio of the nominal value of their share and the cumulative amount of share capital.

Example

The size of the company's share capital is 20,000 rubles. The society was formed by two participants who, in the formation of authorized capital, contributed deposits in the amount of 8,000 and 12,000 rubles. Thus, the dimensions of their shares make up:

  • one - 40%, with a nominal value of 8,000 rubles;
  • another - 60%, with a nominal value of 12,000 rubles.

The share of the participant must be fully paid for them when establishing a society, which may confirm the certificate under consideration.

Sample certificate of nominal value can be downloaded by reference: "Help about the nominal value - sample."

Such a certificate is signed in addition to the head of the company also by the chief accountant. These requirements are based on the fact that the document contains information that are based on financial reporting indicators. If the responsibilities of the accountant in the company performs the director, it is advisable to submit an appropriate order and put one signature.

As a rule, this document is prepared for a notary, which certifies the purchase and sale transaction in the authorized capital.

What is reflected in the certificate of the actual value of the share

The need to determine the actual value of the share, as a rule, occurs when the participant leaves society. In this case, the company must pay the actual value to his participant or its heirs (Art. 23 of the Law on Limited Liability Societies of 08.02.1998 No. 14-FZ).

The procedure for calculating the share sets paragraph 2 of Art. 14 of the Ltd Law:

DSD \u003d NSD / MC × cha, where:

DSD - the actual value of the share;

NSD - nominal value of the share;

Uk - authorized capital;

Cha - net assets.

Clean assets according to the rules approved by the Order of the Ministry of Finance of Russia and the FCCB dated January 29, 2003 No. 10N / 03-6 / PZ.

By general rules The actual value of the share of a separate participant should be calculated based on the accounting balance sheet, but the accounting articles do not always significantly reflect the cost of assets owned by society, compared with their market value, as required by paragraph 6 of PBU 4/99.

As numerous arbitration practice shows, preparing a certificate of valid value, executive Societies should be based on accounting balance. A participant who does not agree with the calculations produced and believes that the accounting statements are based on inaccurate data, has the right to apply to the court. Courts in resolving the dispute about the actual value of the share take the basis of the market value of the property determined on the basis of expert assessmentWhat confirm the following acts:

  • rESOLUTION OF THE PRESIDIUM OF THE RF OF THE RF OF 07.06.2005 No. 15787/04;
  • determination of the Supreme Arbitration Court of the Russian Federation dated 05.03.2010 № you-1880/10.

Thus, accounting certificates about the actual and nominal value of the share are 2 different documents reflecting various indicators. In their compilation, which is engaged in the Company's accounting, are taken as the basis for financial statements and market value of the company's assets. You can also use such references in the judicial dispute as a confirmation document.