The article analyzes and summarizes non-standard situations that arise in practice in the distribution of profits in cases of payment of dividends (including intermediate ones) and changes in the composition of participants and their shares in the authorized capital. On the concrete examples the solution of complex problems from the practice of tax consulting is shown.
In some cases, in the absence of a clear legal regulation non-standard situations, the procedure for solving problems given in the article is based on the recommendations of the financial and tax departments.
The distribution of profits based on the results of financial and economic activities in an LLC is within the competence general meeting participants. Recall that a limited liability company is a company created by one or more persons, authorized capital which is divided into shares. The participants of the company bear the risks of losses associated with the activities of the company, within the value of their shares, and upon receipt of profit, the general meeting of the participants of the company makes a decision on the distribution of net profit in accordance with the adopted policy of the company.
The main documents regulating the activities of limited liability companies, which are the Civil Code of the Russian Federation (Articles 87–94) and Federal Law No. 14-FZ of February 8, 1998 (as amended on November 30, 2011) “On Limited Liability Companies” (hereinafter - Federal Law No. 14-FZ), it is determined that net profit can be directed:
To replenish the company's funds, production development and the creation of reserves;
Social programs and bonuses for employees;
Payment of part of the profit to the participants of the company.
You should immediately pay attention to two features related to the distribution of net profit in an LLC.
Firstly, the term "dividends" for LLC is not given in the regulatory documents. In relation to such societies, it is correct to speak of profit distribution according to Art. 91 of the Civil Code of the Russian Federation, Art. 28, 29 federal law No. 14-FZ. However, the term "dividends" has become widespread in practice, not only in relation to joint-stock companies, but to limited liability companies. Therefore, considering only the solution of practical situations, we will adhere to this generally accepted term.
Secondly, on general rule the announcement of the amount of the annual income of the company's participants (dividends) based on the results of activities for the year refers to events after the reporting date (paragraph 3 of PBU 7/98), and in the reporting period for which net profit is distributed, no accounting entries are made. An exception to this rule is when the goals for which the net profit should be directed and the conditions for how the net profit is distributed are indicated directly in the charter of the company: once a quarter, once a half year or once a year. The payment of interim dividends is just such a case. Therefore, the accountant full right as of the date of the decision of the general meeting of participants on the payment of part of the net profit (subclause 7, clause 2, article 33 of Federal Law No. 14-FZ), reflect the accrual of dividends for the first quarter, six months, nine months, using the account retained earnings reporting year.
Having defined general rules, regulations and features of determining the income of LLC participants, let's move on to the analysis of specific situations.
Situation 1
The founders of Triumph LLC with an authorized capital of 250 thousand rubles. are individuals: the first participant has a 24% share in the authorized capital, the second participant (non-resident) - 25%, and the third participant - 51% of the share in the authorized capital.
Is it possible to distribute the profit received at the end of 2011 in the amount of 1 million rubles. disproportionately to their shares, for example, 30% for the first and second participants and 40% for the third, if such a decision was made by all participants at the general meeting? What are tax consequences such a decision?
In accordance with paragraph 2 of Art. 33 of Federal Law No. 14-FZ, making decisions on the distribution of the company's net profit is the exclusive competence of the general meeting of participants. Moreover, paragraph 2 of Art. 28 of Federal Law No. 14-FZ expressly allows the right of organizations established in the form of an LLC to establish a special procedure for distributing profits - disproportionately shares in the authorized capital of the company.
Note! The procedure for distributing profits can be changed with the consent of all participants in the company and when changes are made to the relevant sections of the company's charter. No other procedure is provided for by the current legislation of the Russian Federation.
If the decision on the distribution of profits disproportionately to the shares of participants is made at the general meeting, and no changes are made to the constituent documents, another problem may arise.
For the income of individuals - participants in an LLC, received by them during the distribution of profits, preferential tax rates for personal income tax are legally established. Yes, pp. 3, 4 art. 224 of the Tax Code of the Russian Federation provides for rates of 9% for individuals who are tax residents Russian Federation, and 15% for persons who are not tax residents of the Russian Federation.
In the event that at the end of the year a decision was made to distribute profits disproportionately to the shares of participants, for example, as shown in Table. 1, the application of a preferential personal income tax rate may cause disagreements with inspection and regulatory organizations.
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Table 1. Profit distribution among LLC participants |
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LLC member |
By decision of the meeting of participants |
Within the share of the participant in the authorized capital |
Deviation |
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Total | |||
Thus, according to the Russian Ministry of Finance, part of the net profit distributed among participants disproportionately to their shares is not recognized as a dividend for tax purposes. Accordingly, these payments are taxed at the general rate for both legal entities and individuals (letters dated June 24, 2008 No. 03-03-06/1/366, January 30, 2006 No. 03-03-04/1/65).
An essentially similar position was expressed by the Federal Antimonopoly Service of the North-Western District when considering disputes related to taxation personal income tax payments in the form of dividends (Resolutions No. А13-2088/2010 of 27.06.2011, No. А44-2409/2005-7 of 12.01.2006).
In other words, according to financial and judiciary, the overpaid part of the net profit does not meet the criteria of a dividend and a preferential rate (9 or 15%) cannot be applied to it.
Note! The official opinion boils down to the fact that it is necessary to tax at a preferential rate (in particular, at rates of 9 or 15%) only that part of the distributed profit that is proportional to the size of the share. The remainder must be taxed in the general order.
For the analyzed situation, a preferential rate of 9% should be applied to the income of the first participant within his share, that is, to the amount of 240 thousand rubles, 13% - to income in excess of his share - 60 thousand rubles.
For the second participant - a non-resident, a preferential rate of 15% is applied to the tax base of 250 thousand rubles, 30% - to income in the amount of 50 thousand rubles.
For the third participant, a preferential rate of 9% is applied to the entire amount of income.
Summing up the above, it can be recommended in this situation, before making changes to the constituent documents, to distribute the net profit of the company based on the results of the calendar year according to the decision of the general meeting of participants, and when taxing "dividends" to use preferential personal income tax rate to that part of the income, which is distributed in proportion to their shares in the authorized capital of the company.
But you can do otherwise. When accruing income, apply preferential rates to the entire amount of income of participants in accordance with the decision of the general meeting, that is, disproportionately to their shares in the authorized capital, and pay income to participants after registration of changes in the constituent documents. After all, it is necessary to withhold tax on income (dividends) when they are paid (clause 2 of article 214, clause 4 of article 226, clause 2 of article 275, clause 4 of article 287 of the Tax Code of the Russian Federation).
In the event that the procedure for distributing net profit is not only changed with the consent of all participants in the company, but is also registered by amending the relevant sections of the company's charter, the participants' income (dividends) are taxed at preferential rates.
Situation 2
Let's change the conditions of the previous situation. Members of the company - individuals and residents of the Russian Federation - were accrued and paid dividends based on the results of I quarter and half year of 2011 (Table 2). In December (10.12.2011) the third participant sold a part of its share in the authorized capital in the amount of 20% to a new participant and instead of 51% became the owner of a share of 31%. The composition of the participants has changed, about which an entry was made in the Unified State Register of Legal Entities. Is it possible to distribute the annual profit taking into account the time during which the fourth participant was actually a participant in the company? Is such a decision legal if it is taken by a majority of votes at the general meeting of participants?
In accordance with Part 1 of Art. 28 of Federal Law No. 14-FZ, a company has the right to make a decision on the distribution of its net profit among the participants of the company quarterly, once 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.
In our opinion, the issue of distribution of profit at the end of the year between the participants in the case when changes in the charter were registered in December 2011, and interim dividends were distributed based on the results of the 1st and 2nd quarters, in our opinion, can be resolved as follows.
For joint-stock companies there are concepts of "interim dividend" and "final dividend", which are determined on the basis of the final result of profit for the past calendar year.
In essence, the interim dividend is in the nature of an advance payment, the amount of which is taken into account when declaring the final dividend. When paying the final dividend, its size is determined in the total amount for the year, taking into account advance payments of interim dividends.
Note! Although the concept of a dividend refers to a portion of the net profit in joint-stock companies, an essentially similar approach can be applied to the distribution of net profit among the participants in an LLC.
In other words, in intermediate periods, for example, based on the results of the first quarter, half a year, advance payments are accrued, and the final amount of dividends or part of net profit in limited liability companies is determined at the end of the year.
So, according to the results of the first quarter, dividends were accrued and paid in this situation (see Table 2):
The first participant - 48,000 rubles. (24% × 200,000);
The second participant - 50,000 rubles. (25% × 200,000);
Third participant - 102,000 rubles. (51% × 200,000).
The following dividends were accrued and paid at the end of the first half of the year:
The first participant - 72,000 rubles. ((24% × 500,000) - 48,000);
The second participant - 75,000 rubles. ((25% × 500,000) - 50,000);
Third participant - 153,000 rubles. ((51% × 500,000) - 102,000).
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Table 2. Profit to be distributed among LLC participants |
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LLC member |
According to the resultsIquarter, rub. |
At the end of the half year, rub. |
At the end of the calendar year, rub. |
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Fourth | |||
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Total |
1 000 000 |
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When paying the final income to the participants of the company, its size is determined in the total amount for the year, but with an offset of advance payments. Then, at the end of the year, dividends should be accrued and paid:
The first participant - 120,000 rubles. ((24% × 1,000,000) - 48,000 - 72,000);
The second participant - 125,000 rubles. ((25% × 1,000,000) - 50,000 - 75,000);
Third participant - 55,000 rubles. ((31% × 1,000,000) - 102,000 - 153,000);
The fourth participant - 200,000 rubles. (20% × 1,000,000).
The part of the LLC's profit intended for distribution among its participants is distributed in proportion to their shares in the authorized capital of the company. A different procedure can be established by amending the charter of the company by decision of the general meeting of participants in the company, adopted by all participants in the company unanimously (part 2 of article 28 of Federal Law No. 14-FZ).
Considering the above procedure, it should be concluded that if the participants in the company decide to distribute profits in proportion to the time during which new member was actually a member of the company, then such a decision will not comply legislative norms. The requirements of the new participant for the payment of dividends in full at the end of the year will be recognized as legitimate. As an example of court decisions on a similar issue, one can cite the Resolution of the Federal Antimonopoly Service of the North-Western District of March 23, 2009 in case No. A56-11686 / 2008.
Please note that in this situation, interim dividends for the first quarter and six months were not accrued and paid in larger amount than was due to all four participants at the end of the year. However, this does not always happen.
Situation 3
Let's keep the conditions of the previous situation, but let's assume that according to the results of 2011, the profit for distribution amounted to 1 million rubles. At the same time, the profit according to the results of the first half of the year amounted to 1.3 million rubles, that is, in the second half of the year the company received a loss. How should interim dividends already paid be redistributed among the new participants?
The financial result of the organization's activities can be both profit and loss. According to Art. 29 of Federal Law No. 14-FZ, limited liability companies cannot make decisions on the payment of dividends:
Until full payment of the entire authorized capital;
Until the payment of the actual share or part of the share of a member of the company in cases provided for by law;
If the company meets the signs of insolvency (bankruptcy) or there is a possibility of such signs appearing as a result of the payment of dividends;
If the value of the net assets of the company is less than the authorized capital and reserve fund or becomes less as a result of the payment of dividends.
Pay attention to the last condition. Recall that the net assets indicator is calculated as the difference between assets and liabilities. So if accounts payable society is significant net assets may well be less than the authorized capital. In this case, it is illegal to pay dividends.
But let's assume that there are no signs of bankruptcy, the value of net assets exceeds the size of the authorized capital, and at the end of 2011, a profit was received for distribution among the participants in the amount of 1 million rubles. The only obstacle is the overpaid dividends in the amount of RUB 1.3 million.
In this case, the general meeting of the company's participants may decide to credit the overpaid dividends against the upcoming dividend payments in subsequent years or to return them to the company's cash desk. However, the return of the amounts paid is carried out by the participants of the company - individuals voluntarily, the company is not entitled to forcibly demand their return.
And vice versa: a company member is not entitled to demand payment of a part of the net profit to him, if the decision on the distribution of profit was not made by the general meeting of the company participants (subparagraph “b”, paragraph 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 90, Plenum of the Supreme Arbitration Court of the Russian Federation No. 14 dated 09.12 .1999 "On some issues of the application of the Federal Law "On Limited Liability Companies"").
Also, one cannot ignore a number of ambiguous situations regarding the distribution of profits as dividends in organizations with special regimes taxation (USN, ESHN, UTII), in the application of which organizations are exempted from paying income tax. Consider one of these questions using the example of the following situation.
Situation 4
LLC applies the simplified tax system with the object "income minus expenses". Is the sole founder, who is also the director of the company, entitled to accrue dividends to himself and not switch to common system taxation?
In a company consisting of one participant, decisions on issues related to the competence of the general meeting of participants in the company are taken by the sole participant of the company individually and are drawn up in writing (Article 39 of Federal Law No. 14-FZ, letter of the Federal Tax Service of Russia for Moscow dated April 19, 2007 No. 20-12/ [email protected](a)).
The simplified taxation system is one of the four special tax regimes(clause 2, article 18 of the Tax Code of the Russian Federation). It is focused on simplifying the calculation and payment of taxes in entrepreneurial activity small and medium business. When applied USN taxpayer exempt from paying a number of taxes, including income tax (clauses 2, 3 of article 346.11 of the Tax Code of the Russian Federation). Moreover, when working on the simplified tax system, organizations have the right not to keep accounting records, with the exception of accounting for fixed assets and intangible assets(Clause 3, Article 4 of the Federal Law of November 21, 1996 No. 129-FZ (as amended on November 28, 2011) “On Accounting”).
However, it should be emphasized that not to apply the traditional system accounting simplistic organizations have the right, but not the obligation.
In the case when it comes to the distribution of profits, accounting will be the main documentary evidence of the possibility of accruing dividends and applying preferential tax rates by personal income tax.
Profit for distribution, or "net" profit, in the case of the application of the simplified tax system, is determined in accordance with the procedure provided for in paragraph 23 of PBU 4/99. A similar opinion was expressed in a letter from the Federal Tax Service for Moscow dated January 15, 2007 No. 18-11 / 3 / [email protected]
In other words, an organization that applies the simplified tax system and is exempt from paying income tax is entitled to accrue and pay dividends in full when maintaining accounting records. At the same time, there is no need to switch to the general taxation system.
Income in the form of dividends due to individuals is subject to personal income tax in accordance with Ch. 23 of the Tax Code of the Russian Federation. Therefore, in the situation under consideration, the organization - the source of dividends must fulfill the duties of a tax agent for payment of personal income tax according to paragraph 2 of Art. 214 of the Tax Code of the Russian Federation. Tax agent determines the amount of personal income tax separately for each taxpayer in relation to each payment specified income: at rates of 9% - for individuals who are tax residents of the Russian Federation (clause 4 of article 224 of the Tax Code of the Russian Federation), 15% - for individuals who are not tax residents of the Russian Federation (clause 3 of article 224, clause 3 of art. 275 of the Tax Code of the Russian Federation).
When receiving income in cash, the date of actual receipt of income is determined as income payment day, including transfers of income to the taxpayer's accounts in banks or, on his behalf, to the accounts of third parties (subclause 1, clause 1, article 223 of the Tax Code of the Russian Federation).
The status of an individual (incorporated or not in the state of the founder) does not matter for the accrual and payment of dividends. This is important only when choosing an accounting account on the basis of the Instructions for the Application of the Chart of Accounts for Accounting Financial and Economic Activities of Organizations.
So, if the founder performs the duties of a director, then the accrual of dividends is reflected on the credit of account 70 “Settlements with personnel for wages” sub-account “Settlements with employees for the payment of dividends (income from participation in authorized capital)” in correspondence with account 84 “Not distributed profit(uncovered loss)".
For your information. In accordance with paragraph 1 of Art. 28 of Federal Law No. 14-FZ, the participants in the company have the right to make a decision on the distribution of profits remaining after taxation among themselves, that is, on the payment of dividends, on a quarterly basis, once every six months or once a year. Thus, the distribution of profits is a right, not an obligation. And if the founder of the organization does not want to receive dividends, but wants to use the profit for something else, he can do it.
And one more nuance related to the situation when the sole founder is the head of the company. Rostrud in a letter dated December 28, 2006 No. 2262-6-1 notes the following. Cases when the sole founder of a legal entity is also its leader (for example, the general director) are not uncommon. According to Art. 56 “The concept of an employment contract. Parties to an employment contract” of the Labor Code of the Russian Federation, an employment contract is concluded between the employee and the employer. In this situation, according to Rostrud, in relation to to CEO his employer is missing.
However, the non-application of ch. 43 "Peculiarities of labor regulation of the head of the organization and members of the collegial executive body of the organization" of the Labor Code of the Russian Federation to the relations that arise when the head is at the same time the sole founder of the organization, does not mean that other norms of labor legislation do not apply to these persons. From Art. 16 "Bases for the emergence of labor relations" of the Labor Code of the Russian Federation it follows that labor Relations arise between the employee and the employer on the basis of an employment contract concluded, among other things, as a result of appointment to a position or approval in a position. At the same time, in this situation, on the basis of Art. 20 "Parties of labor relations" of the Labor Code of the Russian Federation, the employer is entity(organization) that has entered into an employment relationship with an employee, and not individual- Head of the organization.
It is not uncommon that in such situations they try to save on payroll taxes by accruing and paying the director only dividends, including intermediate ones.
But non-payment wages to the director during the period when he, as a head, carries out activities to manage the organization, sign financial documents and make decisions, including on the payment of dividends, in our opinion, does not comply with labor law. Such a situation can be the basis for disputes and conflicts with regulatory and inspection bodies, and if facts of unjustified non-calculation of wages are revealed, the organization can be brought not only to tax, but also to administrative liability (Article 5.27 “Violation of labor legislation and labor protection » Code of Administrative Offenses of the Russian Federation).
Accounting Regulation "Events after the reporting date" (PBU 7/98), approved by Order of the Ministry of Finance of Russia dated November 25, 1998 No. 56n (as amended on December 20, 2007).
Regulation on accounting "Accounting statements of the organization" PBU 4/99, approved by Order of the Ministry of Finance of Russia dated 06.07.1999 No. 43n (as amended on 08.11.2010).
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 of the said Law, a person whose term for making 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 28.12. companies accrued within three years prior to 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 first months of the year are the time for summing up. It is worth thinking about the fate of retained earnings. Consider who has the right to use it and what you can spend it on.
The final entry in December, the amount of net profit (loss) of the reporting year is written off from account 99 "Profits and losses" to the credit (debit) of account 84 "Retained earnings (uncovered loss)". So, on account 84 after the reformation of the balance sheet is formed financial results, which will be announced at the general meeting of shareholders (participants). If, as a result, the organization has a debit balance on account 84, this, unfortunately, indicates that the main goal of entrepreneurial activity has not been achieved: the organization has received a loss. If account 84 has a credit balance, this indicates that the organization has retained earnings that can be used.
What is retained earnings?
First, it is part of the capital of the organization. No wonder it is reflected in Sect. III "Capital and reserves" balance sheet. Capital is nothing more than the difference between an organization's assets and its liabilities.
But if the assets and liabilities are related to real objects, then the capital is a certain abstract financial value, which shows from what sources the organization exists: authorized, additional or reserve capital, retained earnings. For example, in the Chart of Accounts for accounting for the financial and economic activities of organizations (hereinafter referred to as the Chart of Accounts), approved by Order of the Ministry of Finance of Russia dated October 31, 2000 N 94n, in the commentary to account 84, retained earnings are directly named as a source of financial support for the production development of the organization.
Accordingly, if the organization's capital contains such a component as retained earnings, this is a very good sign and indicates that the organization earns more than it spends.
Secondly, the credit of account 84 shows the amount of net profit received for the entire period of activity organizations, not just Last year. This value represents the final result of the company's activities for the entire time of its existence, and the owners have the right to dispose of this accumulated profit at their discretion.
Thirdly, the credit balance of account 84 indicates that the profit of the organization was not aimed at withdrawing funds from the company's turnover. What this means is explained below.
Who is entitled to use retained earnings
To distribute the earned profit, to decide what expenses should be made at its expense, only the owners of organizations have the right: shareholders or participants. It is not for nothing that accountants among themselves call account 84 "account of the owner." In accordance with the current legislation, the decision on its distribution is made by the general meeting of shareholders (participants) (clause 3 clause 2 article 67.1 Civil Code RF, pp. 11 p. 1 art. 48 of the Law of December 26, 1995 N 208-FZ "On Joint Stock Companies" (hereinafter - the Law on JSC), paras. 7 p. 2 art. 33 of the Law of 08.02.1998 N 14-FZ "On Limited Liability Companies" (hereinafter - the Law on LLC)).
Accordingly, the accounting decision of the participants (shareholders) will depend on the instructions that they record in the minutes of the general meeting and give to the management of the organization.
However, when making this decision, many, unfortunately, make mistakes. It is the accountant who can suggest the right decision to shareholders and participants. And our task is to help him in this.
What can and should be spent on retained earnings
The procedure for distributing profits is regulated by the Laws on JSC and LLC. As for accounting, what can be spent on retained earnings is said only in the annotation to account 84 in the Chart of Accounts. No more mention of how retained earnings can be spent, in regulations accounting no.
So, let's see what the profit is spent on.
reserve fund
For joint-stock companies, the Law provides duty on the formation of a reserve fund at the expense of net profit. Its size must be at least 5% of the authorized capital of the company (clause 1, article 35 of the JSC Law). They “spend” the fund to cover losses (in most cases), as well as to buy back their own shares and redeem their own bonds (paragraph 3, clause 1, article 35 of the JSC Law).
Limited liability companies, unlike joint-stock companies, can create a reserve fund on a voluntary basis (clause 1, article 30 of the LLC Law). The size of the reserve, the amount of annual deductions to it and the purposes for which the fund can be spent (it is usually also used to cover losses by LLC) are prescribed in the company's charter.
The reserve fund is created by posting:
Debit 84 "Retained earnings (uncovered loss)" Credit 82 "Reserve capital".
In the balance sheet, it, like retained earnings, is reflected in sec. III "Capital and reserves" on line 1360. Thus, part of the net profit is actually transferred to another item of capital. But at the same time, the structure of the balance sheet improves, since the owners are actually prohibited from withdrawing funds from the company's turnover (for example, paying dividends) for the amount of the formed fund. It can be said that the reserve fund is a kind of financial safety cushion for organizations.
Dividends
The profit remaining after the formation of the reserve fund, the owners can direct to the payment of dividends. It should be noted that this is the most common way to use profits. The accrual of dividends reduces retained earnings, and their payment leads to a decrease in the organization's assets (money or property).
In accounting, the accrual of dividends will be reflected in the following entry:
Debit 84 "Retained earnings (uncovered loss)" Credit 75 "Settlements with founders".
Payment of dividends money should be reflected in the wiring:
Debit 75 "Settlements with founders" Credit 51 "Settlement accounts".
If the money was previously withdrawn from the current account for issuing it in cash, then the posting will be as follows:
Debit 75 "Settlements with the founders" Credit 50 "Cashier".
Dividends can be paid not only in money, but also in property, because the current legislation does not prohibit this. According to the Federal Tax Service of Russia, when transferring property on account of the payment of dividends, VAT must be charged (Letter of the Federal Tax Service of Russia dated May 15, 2014 N GD-4-3 / [email protected], agreed with the Ministry of Finance of Russia).
It should be noted that there are some judgments, in which the arbitrators agree that the transfer of property in payment of dividends is not a sale and is not recognized as an object of VAT (Resolution of the Federal Antimonopoly Service of the Urals District of May 23, 2011 in case N A07-14871 / 2010). Therefore, if an organization does not include in the VAT base the value of property transferred to pay dividends, then it will most likely have to defend its position in court. But is it worth it? After all, if an organization decides to pay dividends in cash, but it does not have them, then first it sells the property, calculates VAT on its sale, and only then transfers the funds to shareholders (participants). In other words, in any case, in the absence of funds, you will first have to pay VAT and only then - to pay off the owners.
If, however, goods or fixed assets are transferred as dividends, the sale of which is not subject to VAT (for example, land), there is no need to charge VAT.
transfer property on account of repayment of debt on payment of dividends in accounting are reflected as follows:
1) when transferring goods or finished products:
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Account correspondence |
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90 (sub-account "Revenue") |
Recognized revenue from the sale of goods |
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90-1 (sub-account "VAT") |
Reflected VAT |
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90-2 (sub-account "Cost of sales") |
41 "Goods" or 40 "Finished products" |
Written off the cost of goods or finished products |
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76 (sub-account "Settlements with different debtors and creditors") |
The debt to the participant for the payment of dividends was set off |
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2) when transferring a fixed asset:
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Account correspondence |
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75 (sub-account "Settlements with the founders for the payment of dividends") |
91-1 (sub-account "Other income") |
Reflected the transfer of fixed assets on account of the payment of dividends |
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Reflected VAT |
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01 (sub-account "Fixed asset in operation") |
Reflected initial cost fixed asset (OS) |
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01 (sub-account "Retirement of fixed assets") |
Amount of accumulated depreciation written off |
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91-2 (sub-account "Other expenses") |
01 (sub-account "Retirement of fixed assets") |
Residual value of fixed assets recognized as an expense |
Is it legal to use profits in any other way?
Sometimes the owners of the organization make decisions on the payment of bonuses to employees at the expense of profit, material assistance, and the acquisition of fixed assets. Some decide to create so-called consumption and accumulation funds. Is it correct?
First, let's deal with expenses at the expense of profits. First, the JSC and LLC Laws do not provide for any payments from profits to anyone other than the owners. As we have already noted, account 84 "Retained earnings (uncovered loss)" is the account of owners, respectively, only they are entitled to receive dividends.
Secondly, the Ministry of Finance of Russia has repeatedly expressed the opinion that account 84 is not intended to reflect all kinds of social and charitable expenses, payments of material assistance and bonuses (Letters of the Ministry of Finance of Russia dated 19.06.2008 N 07-05-06 / 138, dated 19.12. 2008 N 07-05-06/260 and others).
From the point of view of the financial department, the expenses of the organization for the implementation of sports events, recreation, entertainment, cultural and educational events and other similar events, as well as the transfer of funds (contributions, payments, etc.) related to charitable activities by the organization, are other expenses and should be accounted for under account 91 "Other income and expenses". Only the payment of dividends is not an expense of the organization, any other disposal of assets is an expense of the current period (clause 2 of the Accounting Regulation "Organization's expenses" PBU 10/99, approved by Order of the Ministry of Finance of Russia dated 06.05.1999 N 33n).
Therefore, all kinds of awards, material aid and charitable spending will also affect the net profit of the organization, but only in the period of these expenses. They have nothing to do with last year's net profit.
Thus, all kinds payments from net profit, with the exception of dividends, are illegal.
As for the formation of the consumption fund at the expense of net profit, this is simply an echo of Soviet accounting. Then real money was transferred to the production development funds, which were kept in the bank separately from the organization's funds, and it was with this money that fixed assets were acquired (commentary to account 87 of the Instructions for the application of the Chart of Accounts for accounting of the production and economic activities of associations, enterprises and organizations, approved by the Order of the Ministry of Finance of the USSR dated March 28, 1985 N 40). Today, no one transfers the money intended for the development of production anywhere.
When acquiring fixed assets, organizations simply spend funds from the current account and one asset (money) is exchanged for another (fixed asset). Account 84 in postings is not involved at all. Therefore, if the owners of the organization decide to direct the profit to the development of production, and the accountant makes an entry in the accounting Debit 84, sub-account "Profit for distribution", Credit 84 "Reserved profit", this does not affect the final balance on the credit of account 84.
By and large, this posting only indicates that the owners refused to receive dividends this year and decided not to withdraw funds from the company's turnover. But such a decision will allow the organization to improve the structure of the balance sheet, make its financial position more stable. But since the final balance on the credit of account 84 will not change, nothing prevents the owners of the organization from distributing the profit reflected in the balance sheet as undistributed in the future.
Is it possible to distribute the profits of previous years
Another question that worries both owners and accountants: is it possible to distribute the profits of past years as dividends? The answer is yes. Can. After all, neither tax nor civil legislation contains restrictions on the payment of dividends from the profits of previous years. Therefore, if the organization has "accumulated" the profit of previous years, the general meeting of shareholders (participants) can send it to pay dividends.
Neither the regulatory authorities object to this (clause 1 of the Letter of the Federal Tax Service of Russia dated 05.10.2011 N ED-4-3 / [email protected], Letter of the Ministry of Finance of Russia of March 20, 2012 N 03-03-06 / 1/133), nor the courts (Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation of June 25, 2013 N 18087/12, Decision of the Supreme Arbitration Court of the Russian Federation of November 29, 2012 N VAC-13840 / 12) . The Supreme Arbitration Court of the Russian Federation came to the conclusion that, by their economic nature, net profit and retained earnings are identical, therefore, nothing prevents owners from deciding to pay dividends not only from the net profit of the reporting year, but also from retained earnings of previous years.
The distribution of profits in an LLC between participants is a procedure that co-owners of successful companies regularly face. The question is how the distribution of earned money is made, and according to what principles the calculation is carried out. Let's consider these questions in more detail.
General provisions
The main purpose of establishing an LLC is to make a profit. Therefore, the process of dividing dividends between the founders is natural. But it is important to understand that a company's net income is the money that is received as a result of activities, minus taxes and bills paid. The issue of profit distribution lies with the participants of the company, and this right is enshrined in the Federal Law.
What is an LLC? This is a company that is created by several founders in order to increase the authorized capital and increase the scale of activities. Each owner may have a different share (depending on investments in the company's management company). Its size can be determined as a percentage (50%) or as part of the total amount. In the given example, this will be ½ of the authorized capital of the company.
An equally important feature of the company is the possibility of dividing income (net profit) between the founders. The frequency of this procedure varies. As a rule, it is organized once a quarter, six months or a year. Do not confuse profit sharing with the payment of dividends on shares. In the latter case, payments are made only once every 12 months.
Another distinguishing feature of societies is the peculiarity of the management structure. An LLC is headed by a general director or board, as well as a general meeting of owners. The latter makes key decisions for the company on a collegiate basis and taking into account the rules that are spelled out in the charter. One of the issues that can be considered at the meeting of the founders is the distribution of the company's profits.
How does this happen?
The issue of distribution of LLC profits is put on the agenda of the meeting of founders. Depending on the success of the society, such an issue can be considered once every 3, 6 or 12 months. At the meeting, the participants determine the rules for the distribution of profits. The decision can only be taken by voting. In the absence of a quorum (the required number of votes of the founders), the decision-making process may be postponed.
Profit can be distributed as follows:
- Payments to the founders of the company.
- Rewarding employees of the society.
- Injection of funds into existing social programs organizations.
- strengthening financial reserves society.
- Replenishment of the most important funds.
- Expansion of business activities, opening of new directions.
The charter of the company often stipulates the purposes for which the profits received as a result of the activity can be directed. In addition, the document often indicates the timing of payments in relation to the founders of the company. In the latter case, payments to the LLC owners should be reflected in the financial statements.
In other situations, the amount of profit for the year is declared after a certain date. As a result, such information is not reflected in the financial statements for the latest period.
Many people in the course of their activities have come across the term "dividends". Despite its popularity, it will not work to meet such a wording in regulatory papers or laws. When it comes to LLC, the word profit is used. The second term is more suitable for the distribution of income received by the holders of securities.
The distribution of net profit is made upon the adoption of the relevant decision at the meeting of the founders. It will also determine what share of the total amount, and for what purposes it will be spent. The amount of payments intended for each participant depends on his share in the company's capital. The higher it is, the higher the payout. But here it is worth focusing not only on the decision of the meeting, but also on the conditions prescribed in the charter of the company. This document may define a different distribution approach.
Special attention should be paid to the terms during which payments are made. According to the law, the distributed profit must be credited to the account of each of the founders within 60 days, starting from the moment when the relevant decision was made at the meeting of participants. At the meeting, shorter payment terms may be determined. In addition, other information may also be reflected in the charter. The main thing is that the upper period when payment can be made does not exceed 60 days.
What to do in a situation where, in the prescribed period, the distributed profit did not reach one or more founders? In this case, the owner retains the right to demand his money within 3 years from the date of expiration of the 60 days required by law for the payment. Again, the meeting has the right to increase the term for applying for profit, which should also be reflected in the charter of the LLC.
If during the specified period the founder did not apply for money, they are transferred to retained earnings. But there is an exception here. If it has been proven that the owner refused the funds due to him under pressure, the period for claiming profits will be restored.
What can be the restrictions?
After deciding on the transfer of profits to the participants, the LLC undertakes the obligation to make the necessary payments in a timely manner in the agreed amount and taking into account the size of the shares of the owners. But in the Federal Law of the Russian Federation there are a number of restrictions in which payments are impossible:
- The founders did not contribute the entire amount to the Criminal Code, taking into account the established share.
- The size of the net assets of the enterprise at the time of the division of income, as well as the adoption of the corresponding decision, is less than the value of the reserve funds or the company's management company. This can also include a situation where, after making payments, the size of the authorized capital or fund of an LLC will significantly decrease.
- The company did not pay out shares to those owners who had previously been expelled from the company.
- In the process of making a decision or after making payments, the company will be on the verge of bankruptcy.
In all of the above cases, the distribution of LLC profits is prohibited. At the same time, the head of the organization - the general director - bears full responsibility for the possible financial inability of the company, as well as the amount of net assets.
If a member of the company paid his share on time, is entitled to a part of the profit, but does not receive money (subject to the adoption of an appropriate decision), he has the right to demand payment of interest for each day of delay. After settling the current problems, the LLC makes the necessary payments.
A separate issue is the form of payment of LLC profits. There are no clear rules in the law, so funds can be transferred in cash, by bank transfer or in kind (for example, with the company's products).
controversial points
In the process of profit distribution in an LLC, disputes often arise, due to which there are delays in the payment of funds. Consider the most common cases:
- The authorized capital has been increased. The desire of society to inject new funds into the Criminal Code is fully justified. In this way, the company increases investment attractiveness and seeking additional funding. The "expansion" of the authorized capital is also necessary in the event that it does not meet the requirements of the legislation in relation to a particular type of activity. In both the first and second cases, the UK can be increased at the expense of the company's profit, which was not distributed among the founders. For replenishment, only “net” income is used, from which taxes, fines (if any), fees and counterparty accounts are paid. The decision to increase the management company of an LLC at the expense of retained earnings can only be taken by the founders at a general meeting.
- Adding new owners. The situation with the distribution of dividends in an LLC becomes more complicated when a new participant appears at the height of the reporting period. Here it is necessary to focus on the charter of the company and the current federal laws. They stipulate that the distribution of profits is made taking into account the shares of the founder in the UK. This means that at the time the issue is submitted to the general meeting, dividends are due to all participants, but taking into account the part in the authorized capital. At the same time, the period when they became owners is not of great importance.
- Payments in kind. As noted above, with such a solution, profits can be distributed in a non-standard way - by making a payment in kind. By law, such payments are not prohibited. Another thing is the charter, which may contain a ban on such procedures. If disputes arise between the founders on this issue, the Federal Law comes first. It spells out the possibility of making payments in kind, therefore, from the standpoint of the law, this is not a violation.
- Cancellation of the decision. According to the legislation, the decision on the distribution of the income of the enterprise is made collectively. At the same time, to obtain a positive result, it is required that a larger number of founders vote “for”. Also, in practice, it is not customary to consider the same issue twice. But there are times when the first decision is reviewed and canceled at an extraordinary meeting. Such an action is illegal, because the cancellation of the decision of the meeting is entirely the power of the court. Any of the founders who considers the current situation a violation of their own rights can file and file a lawsuit about his incompetence.
Distribution of profits in various cases - during the simplified tax system and liquidation
It is known that the distribution net income enterprises is made on the basis of information obtained from accounting. Under the law, this rule works for all companies, regardless of the type of reporting to the Federal Tax Service. Until 2013, companies could not maintain intermediate financial statements reporting only at the end of the year. This means that the distribution of profits was carried out only once, after the company had paid all fees, taxes and deductions.
A separate issue is the liquidation of the company. It can be done in two ways - voluntarily or involuntarily. In the first situation, the founders themselves decide on the termination of activities, and in the second case, this is done by the court. The decision on liquidation is made at the general meeting, and at the end a protocol is drawn up, a commission is appointed, and work on the payment of accounts payable is activated.
As soon as all settlements on debts are made, the remaining assets are transferred under a special act to the founders who have the appropriate rights to them. The distribution is made taking into account the shares. After that, it is made liquidation balance and then the document is subject to approval. As soon as a complete package of papers is formed, it is transferred to a special body for registration and completion of the liquidation process.
If, according to the results of the executed balance sheet, a loss is visible, it is in without fail repaid at the expense of the authorized capital of the enterprise.
Documenting
It is worth noting that the fact of profit distribution is documented by drawing up a protocol. At the same time, the standard form of the document is not legally established. Most of the time, the protocol is free form, but indicating the mandatory information, namely the date and place of the meeting, the paper number, as well as the list of issues on the agenda. In addition, the following information should be reflected - the amount of dividends, terms, as well as the form of payments. It should be noted that the protocol indicates only total amount profit to be paid.
In the future, the calculation of income is carried out on an individual basis with the execution of a separate document, for example, accounting statement. The payment process itself is carried out using a payment order, an expense cash warrant or payroll. If we are talking about the distribution of property, a special act is drawn up, in which all founders must sign.
The founders of an LLC receive income from the profits from the activities of the enterprise. But payments occur in a strictly defined order. You can't just withdraw funds from circulation.
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How are LLC dividends paid in 2020? Legal entities registered as LLCs have the right to send part of the profits received to payments to the founders of the company.
The distribution of funds is carried out in accordance with the procedure predetermined by law. What is the procedure for paying dividends to the founders of an LLC in 2020?
General points
The founders of the LLC are the direct owners of the enterprise. Why not just spend the profits?
This is due to the fact that any waste of the company must be justified and documented. Of course, the founders of the society are its owners.
But the owner of the property is the organization. And the property of the LLC is separated from the personal property of the founders.
Company money can be taken for three reasons:
- Under the report, when something is purchased for cash for the organization.
- which must be returned to the company.
- Dividends, which are income from the activities of the enterprise and which can be spent at your discretion.
But the distribution of dividends is carried out in a strictly defined order. If you display a brief scheme of actions, you will need:
- determine the amount of dividends;
- make a decision on payment;
- pay dividends and keep .
Despite the apparent simplicity of the process, each step requires correct design. How to pay dividends to an LLC?
What you need to know
First of all, you need to understand what dividends are. According to Russian tax legislation Dividend is any income received by the participants of the organization after the payment of taxes.
Moreover, LLC income is distributed in accordance with the shares of the founders. Thus, dividends are paid exclusively from the net profit of the enterprise.
Taxes are paid from the income received, transfers are made to funds. Only after that the profit is distributed among the participants.
Here it should be noted such a nuance that the norm regarding the procedure for determining the amount of profit is contained in.
According to its provisions, net profit is based on financial statements. does not contain instructions on the procedure for determining profit.
In this case, the principle of applying norms by analogy applies. That is, LLCs determine the amount of net profit in the same way as OJSCs, guided by accounting documents.
You cannot distribute dividends in such cases as:
- payment of the authorized capital is not in full;
- the share of the participant withdrawing from the company has not been paid;
- there are signs or their occurrence will be facilitated by the distribution of profits.
What is their role
The main task of paying dividends is to ensure the income of the company's participants. Any LLC is created for the purpose of obtaining benefits, that is, commercial activities must bring.
The basis for starting work is the authorized capital. In the process of activity, the company's assets are multiplied by generating income.
But in addition to income, the organization has certain expenses. Employees need to be paid production costs pay taxes and mandatory fees.
All that remains after deducting mandatory expenses is retained earnings. There is no concept of "net" profit in the legislation.
Therefore, accounting data, confirmed by accompanying applications, are taken as the basis.
The balance sheet includes a line showing retained earnings or uncovered loss, that is, the economic result. This indicator becomes the basis for calculating dividends.
Legal framework
Details on the dividends of LLC participants are stated in Article 28 of the Federal Law No. 14 of February 8, 1998 “On LLC”. According to this standard, the payment of dividends is carried out on the basis of a decision of the general meeting of participants.
However, there are certain legal restrictions that must be taken into account when making a decision.
The procedure for paying dividends is regulated by a number of regulations, namely:
Registration procedure
When distributing dividends to an LLC, the following procedure must be observed:
| Calculation of net profit and determination of the amount of income available to receive | The organization has the right to pay dividends only if the amount of net income is more than the authorized capital |
| Deciding on the payment of dividends | A general meeting of founders is convened. Participants approve financial statements, discuss ways to share profits and determine the timing for making payments. To calculate the amount of dividends for each participant, the total amount of accrued dividends is multiplied by the percentage of the share of the founder |
| Paying dividends and paying taxes | Dividends are paid at the appointed time. At the same time, 13% for residents of the Russian Federation and 15% for non-residents are withheld from them. The tax is transferred the next day after the payment to the participants. Details of amounts paid and tax withheld are displayed in the quarterly and annual reports ( , ). Insurance premiums dividends are not charged |
Terms of payment of dividends in LLC
If we talk about the conditions for paying dividends to an LLC, then it should be noted that it is impossible to make payments in case of bankruptcy or the risk of its occurrence.
For example, the value of net assets corresponds to the amount of authorized capital. It is clear that any payments in favor of the founders will reduce working capital companies.
In addition, the presence of debts to retired founders also makes it impossible to distribute profits.
By law, each participant in an LLC, upon leaving the company, has the right to receive the value of his share. Therefore, in the first place, the shares of former participants are paid.
In 2020, there is no need to pay the authorized capital before registering an LLC. Participants can make their part of the payment within 4 months after registration.
But during this time, the organization may have a net profit that can be distributed. But for payment, the authorized capital must be paid in full.
How long after the decision
The frequency of profit payments is determined by the founders. But regardless of the approved periods, the payment period cannot exceed 60 days.
Accordingly, within two months, each participant must receive the part of the profit due to him.
Moreover, payment can be made not only in cash, but also in property, if such an option is enshrined in the Charter.
If the participant has not received the required dividends within the period established by law, then he has the right to file a lawsuit in court. The fact of non-compliance with the deadlines is recognized as a violation of the rights of the founder.
Important! When determining the frequency of payment of dividends, the participants must be guided by the Articles of Association. If the Articles of Association state that profits are distributed once a year, then dividends cannot be paid more often.
To change the schedule, you need to make appropriate changes to the constituent documents.
List of documents
To pay profits to LLC participants, proper documentation is required.
You will need to prepare:
- decision on payment made by the founder;
- protocol and decision of the general meeting;
- and their payment.
The distribution of profits in an LLC is accompanied by the submission of reports:
Decision-making
The decision to issue dividends to the founders is made by the participants by convening a general meeting.
Such a meeting can be held no earlier than it is prepared financial statements for the respective period. If it's about annual accounts then it must be approved.
Moreover, the approval of the reporting is carried out in the period from March 1 to April 30 of the year following the reporting one.
Approval of reporting and the issue of distribution of profits can be resolved within the framework of one meeting.
The fact of holding the meeting is documented in the protocol form approved by the LLC.
Moreover, it is allowed to indicate in the minutes a single amount of dividends due for payment. The division takes place in proportion to the shares or in accordance with the provisions of the Articles of Association.
For your information! Dividends may be paid in property, but such payment is treated as a sale.
This will result in the need to pay additional taxes. That's why cash payments more appropriate.
sample protocol
The minutes of the general meeting of participants shall contain the following information:
- the place and date of the general meeting;
- data of the chairman and secretary of the meeting;
- complete list of participants;
- share in the authorized capital of each founder;
- agenda;
- adopted resolutions.
The minutes of the general meeting of LLC participants can be. In addition to the minutes, a decision of the general meeting is drawn up.
It becomes the basis for the payment of dividends and is referred to in the relevant order.
The decision establishes the exact term for making payments and the method of payment (in money or property).
The total payment period cannot exceed 60 days. But if the participant has not received the dividends due to him, then he has the right to apply for their payment within three years.
Emerging nuances
The nuances that arise when paying dividends relate to the method of payment. Most often paid cash. Moreover, both cash and non-cash payments can take place.
Video: how to calculate, pay and withhold taxes from them
If a decision is made to pay dividends in property, then participants can receive their part of the payments in fixed assets, products, and securities.
However, the payment of dividends by the property of an LLC is equated to the sale of property values.
Since the property changes ownership, it is assumed that the company received a certain income. Hence the need to pay taxes.
On the OSNO, income tax is paid and on. The income received is taken into account as additional income.
Are there any restrictions
When distributing the profits of an LLC, legal restrictions must be taken into account. At tax authorities Claims may arise if dividends are paid:
Sole founder
If the LLC has a single founder, then there is no need to draw up a protocol. The participant independently makes a decision, drawing it up in a free form.
The decision states:
- the total amount of dividends;
- billing period;
- place and date of drawing up the document;
- founder's signature.
The sole founder has the right to arrange the payment of only part of the dividends, and allocate the remaining funds for other needs. In addition, dividends can be accumulated.
Making a profit is a right of the owner, not an obligation. The decision to pay dividends to the sole founder of an LLC is possible.
Upon liquidation
In the event of liquidation of the LLC, its activities are completely terminated. The order of succession in relation to rights and obligations is not provided.
This means that all calculations must be made before the official closing of the company, including the distribution of profits.
But you can receive dividends only at the expense of the organization's funds, free from debt obligations.
Therefore, upon liquidation of an organization, the following payment procedure is observed:
- Employee salaries.
- Payment of debts to the budget and off-budget funds.
- Settlements with creditors/counterparties.
- Payment of participants' shares from the remaining funds.
When one of the LLC members simultaneously holds any position in the company, he is first paid a salary as an employee. Then he equally participates in the distribution of profits.
You need to know that after the completion of all settlements with third parties, the accrued but not paid profit is first distributed among the participants.
Then the calculation of profit for the current period is carried out and its distribution is performed.
The payment of dividends upon liquidation of an LLC does not eliminate the need to pay income tax in full.
