Debt cancellation agreement between legal entities. Debt forgiveness between legal entities tax implications. Debt forgiveness by the founder of his organization

The company decided to write off the debt to the counterparty. What needs to be done for this and what consequences to take into account, including what are the tax consequences of debt forgiveness between legal entities.

The counterparty has a debt to the company. It may be more promising for her to continue to cooperate than to recover money through the courts. In such cases, the debt or part of the debt can be written off (Article 415). In fact, this is one of the options for terminating an obligation, although it is less common than offsetting claims, etc. However, one should not forget about the risks of using this method. In particular, about the tax consequences of debt forgiveness between legal entities. If the company classifies the amount of such debt as non-operating expenses, the inspection may consider this to be incompetent. Consider what needs to be done to forgive the debt, as well as how to reduce tax risks.

Debt forgiveness between legal entities: the subtleties of the procedure

When a company forgives someone's debt, it is essentially making a deal. Therefore, it is necessary to comply with the general requirements for the execution of transactions - in particular, a simple written form. The company must record in writing that it is writing off the debt to the counterparty (subclause 1, clause 1, article 161 of the Civil Code of the Russian Federation). At the same time, the inaction of the creditor is not regarded as forgiveness of the debt. The creditor must unambiguously declare that he is ready to make concessions to the debtor.

The creditor is not entitled to forgive the debt if this violates the rights of other persons in relation to his property. For example, if a company terminates the obligations of its debtors in anticipation of bankruptcy, this will be considered incompetent.

How to apply for debt forgiveness

The company may enter into a forgiveness agreement with the counterparty or send him a notice. The notice says that the creditor company releases the counterparty from the obligation to pay this or that amount. If the debtor does not object to the decision of the creditor, his obligation is considered terminated from the moment of receipt of the letter (clause 2, article 415 of the Civil Code of the Russian Federation). In addition, if the parties are involved in an arbitration dispute, the debt can be written off at the conclusion of a settlement agreement.

The agreement, which stipulates the forgiveness of a debt by a legal entity to a legal entity, lists:

What kind of obligation is terminated by the creditor company.

Where did the obligation come from?

When the deadline for the performance of the obligation by the debtor has expired.

Be sure to include in your text:

A wording from which it clearly follows that the creditor forgives the debt that has arisen and will not require the debtor to fulfill this obligation.

Indication of the amount that the company forgives the counterparty: the entire debt or only part of it.

A description of the benefit the creditor receives from debt forgiveness.

If you choose between signing an agreement and sending a letter, there are advantages to an agreement. The text can clearly reflect that the counterparties have agreed to forgive the debt. A letter does not provide such an opportunity, and the likelihood of subsequent disputes is higher.

In addition to the write-off agreement, it makes sense to prepare:

an accounting document in which it is necessary to justify the financial effect of this transaction for the creditor;

a legal certificate with a rationale for the prospects for forgiveness, as well as an analysis of alternative options and their negative aspects (time and money spent on arguing in court, etc.).

Debt forgiveness: how it can be regarded by the tax

The creditor company needs to consider the tax implications of debt forgiveness. If, when calculating taxes, the company classifies the forgiven debt as non-operating expenses, the Federal Tax Service Inspectorate may see this as a violation (subclause 2, clause 2, article 265, clause 2, article 266). The tax authorities rely on the explanations of the Ministry of Finance (letters,).

The Supreme Arbitration Court of the Russian Federation expressed the opinion that this approach is not correct (). The Federal Tax Service explained when it is possible to take into account the amount of forgiven debt when determining income tax. This can be done if the company proves that debt forgiveness served its commercial interests (letters , ). Therefore, when making concessions, the debtor needs to prepare an economic justification for refusing to collect the debt.

What are the tax consequences for the debtor of debt forgiveness between commercial organizations

Legal debt forgiveness person entails tax consequences not only for the creditor, but also for the debtor. It is important for the debtor to determine whether it is necessary to recover VAT amounts that were previously deductible in connection with the receipt of goods, work results, etc.

As a general rule, there is no need to recover VAT now. If the creditor transferred an advance for goods, works or services, the debtor must pay VAT on the amount of the advance. In case of debt forgiveness between legal entities, the tax consequences for the debtor are such that the amount of VAT from the advance payment is not accepted for deduction. This is due to the fact that the debtor company has not actually fulfilled its obligations to the creditor.

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Forgiveness of debt to citizens in legal practice is much more common than in ordinary life. Most often, debt cancellation occurs in the field of entrepreneurial activity, for example, in relation to an employee or founder. What features the debt forgiveness procedure has, in what form relations are formalized and what tax consequences they are associated with, everything is detailed in the article.

When possible

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The most common situation is when an employee borrowed money or goods from an enterprise. The procedure for canceling the debt will be regulated in this case by the internal rules of the company.

For example, such an action may be announced in connection with certain events: the payment of half of the debt by a citizen, a significant date in the activities of the enterprise - the anniversary of the formation of the holding, etc. It is also possible for an employee to forgive a debt if he has a difficult life situation or he experiences financial problems for a long time. difficulties.

Credit institutions of any form do not write off debts to borrowers: banks, microfinance organizations, pawnshops, etc.

It is also possible to issue debt forgiveness in relation to a citizen who is the founder of the company.

It is also allowed to cancel debts by an enterprise in relation to an employee under contracts for the purchase of goods, works or services, estimated as the amount of the contract.

Debt forgiveness is also possible if the organization is declared insolvent - bankrupt. The procedure for canceling debt in this case is regulated by Law No. 127-FZ.

The liquidation of the debt is also possible upon the conclusion of a settlement agreement during the judicial review of the dispute. Again, the rules on forgiveness apply only in cases where such an action does not violate the rights of other creditors.

Peculiarities

A gift must be distinguished from the forgiveness of a debt. While the donee loses material benefits, and the donee receives, debt cancellation is mutually beneficial for the debtor and creditor.

In exceptional cases, credit organizations liquidate debt. The terms of such actions are stipulated in the loan program, which is implemented on a temporary basis and is available to certain citizens: those who find themselves in a difficult life situation (unemployed, chronically ill, etc.)

Banks and other lending organizations are forced to forgive the debt after the statute of limitations expires. The accumulated debt is written off as uncollectible and is not subject to recovery in court.

A debt cancellation transaction is carried out in the same form as the conclusion of a loan agreement, that is, in writing.

The fact that the creditor plans to forgive the debt without litigation is evidenced by the following:

there is no lawsuit on the issue of debt collection;
the creditor does not receive property benefit from other obligations from the debtor;
rehabilitation of the subsidiary company;
in other cases, when forgiveness does not have the features of a gratuitous transaction.

How to issue debt forgiveness under a loan agreement for an individual, sample

There are several options for debt forgiveness:

Sending by the employer to the employee a notice of debt forgiveness in connection with the occurrence of certain circumstances.
By concluding an additional agreement to the loan agreement or including the possibility of forgiveness in the original act.
When signing the deed of donation.

The obligation to draw up a contract in writing arises if the value of the transaction is determined by more than 3,000 rubles. and one of the parties is a legal entity (clause 2 of article 574 of the Civil Code of the Russian Federation).

Debt forgiveness operations are formalized with primary financial documents in accordance with Article 9 of Law No. 402-FZ. Their form is determined by the internal rules of the enterprise and approved by the person responsible for accounting.

The documentation must contain the following details:

notification that the organization is ready to forgive the debt under the contract, indicating the date, in whole or in part;
the amount of financial obligations that are subject to cancellation.

The following details are specified in the donation agreement:

details of the parties: full name of the employee, name of the organization;
subject of the contract - one party gives, the other accepts. It is necessary in this part to prescribe the date of conclusion and the number of the loan agreement;
terms of the contract - a certain period of time.

The agreement comes into force from the moment of signing.

With regard to the founder, who is forgiven a loan received from an organization, the following scheme applies. There is a possibility of novation of the agreement (Article 414 of the Civil Code of the Russian Federation) - changing the content of the subject of the transaction from obtaining credit funds to providing financial assistance by the owner of the company's authorized capital.

Based on Article 251 of the Tax Code of the Russian Federation, when determining the income tax base, property received from the founder, whose share in the authorized capital is more than 50%, is not taken into account. This procedure is valid only if this property is not transferred to third parties within 1 calendar year after the transaction.

Sample contract can be downloaded

taxes

Debt forgiveness comes with a number of tax implications for both employer and employee.

So, when writing off a debt, an employee receives income from which he is obliged to deduct 13% of the received (forgiven) amount from the income tax to the budget. In this case, the payment is made by the company with which the labor contract is concluded, since it acts as a tax agent. Taxes are not payable only in cases where the forgiven amount is not more than 4000 rubles. In this case, you do not need to make contributions to personal income tax.

The issue of paying insurance contributions (for pensions, medical insurance) is quite complicated. If, when registering forgiveness as a gift, the answer is unequivocal that nothing needs to be paid, then in other cases the situation is ambiguous.

According to the clarifications of the Ministry of Health and Social Development of the Russian Federation in letters No. 1283-19 dated May 21, 2010 and No. 1212-19 dated May 17, 2010, when debt is forgiven for the amount of the liquidated debt, pension and social insurance contributions are subject to accrual. The position of the supervisory authority on this issue is unified.

Judicial practice proceeds from the fact that contributions are not mandatory for cases where:

the content of the loan agreement is not related to labor relations;
obligations under credit relations are not related to the procedure for fulfilling labor obligations by an employee;
the employment contract does not directly provide for the possibility of issuing a loan to an employee and forgiving him a debt under certain circumstances.

Therefore, for an enterprise, in order to avoid errors in tax and accounting, it is better to conclude a donation agreement with an employee. For an employee, the form of registration of debt forgiveness is not fundamental.

Transactions for issuing a loan are not subject to VAT by virtue of subparagraph 15, paragraph 3, article 149 of the Tax Code of the Russian Federation.

Legislation

In order to demonstrate the procedure for the application of normative acts, the following situation from practice can be cited.

The company gave two employees an interest-free loan. The debt was not repaid within the specified period. At the meeting, it was decided to write off the debt against retained earnings. Question: Will insurance premiums and taxes be charged and in what proportion to the amount of liquidated debt?

In order to forgive the debt at the enterprise, a document was drawn up containing the details contained in paragraph 2 of article 9 of Law No. 402.

The following legal rationale was provided: an interest-free loan agreement with employees could qualify as an effective loan agreement. Based on Art. It is provided that the loan can be both interest-bearing and interest-free. The absence of payment for the use of funds was provided for by the contract.

According to Article 415 of the Civil Code of the Russian Federation, one of the ways to terminate obligations is debt forgiveness. Such an action is allowed if the transaction does not affect and does not infringe on the rights of third parties, does not contradict the fundamentals of law and order.

The Presidium of the Supreme Arbitration Court of the Russian Federation also gave a classification to the relationship between an employee and enterprises in Resolution No. 104 of 12/21/2005. A debt forgiveness deal has content that corresponds to clause 1 of article 572 of the Civil Code of the Russian Federation, that is, it is regarded as a donation.

Employees, by virtue of clause 1 of article 210 of the Tax Code of the Russian Federation, must pay personal income tax, since they receive income in the amount of the forgiven debt. According to clause 28 of article 217, if the amount of income of citizens is less than 4000 rubles, tax liability does not arise.

One of the ways to help a legal entity in a difficult financial situation is to issue a loan. The loan agreement is made in writing. A loan can be interest-bearing (providing for the return of not only the main part of the debt, but also a certain amount accrued for the use of funds) and interest-free.

If for some reason the borrower cannot repay the received loan, then the latter can be forgiven by the lenders. Let us examine in more detail how one legal entity can forgive a loan to another, and what consequences this action entails.

In what cases is it possible

The concept of "debt forgiveness" is provided. Debt forgiveness is the complete release of the borrower from the payment of existing debt.

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Such a procedure is possible only if the lender does not cause damage to third parties by his actions. For example, an organization transfers cash to another company, which is used to purchase new equipment necessary for production.

With the funds received, the borrower company pays for the supply of the necessary equipment to another organization. The lender has the right to forgive the borrower's debt only if this does not affect the enterprise - supplier of equipment.

One legal entity may forgive a debt to another legal entity in the following cases:

due to the inability of the debtor to repay the loan received (regulated);
in connection with the termination of the activities of a legal entity acting as a borrower, that is, the liquidation of a legal entity (regulated);
in connection with the adoption by one of the state bodies of any act, as a result of which the payment of debt becomes impossible (regulated).

The main features of debt forgiveness between legal entities

From the point of view of lawyers, the operation of debt forgiveness is interpreted in different ways. Some believe that this action refers to donation, which is unacceptable between legal entities.

However, Russian legislation (in particular) clearly regulates this action, which differs in the following aspects:

Debt forgiveness is purely a two-way deal. The decision to terminate obligations under the loan agreement cannot be made only by the lender or borrower;
debt forgiveness in the usual form does not imply any compensation. Otherwise, the action is transferred to the category of receiving compensation, which are counted towards payment of the existing debt;
debt can be forgiven not only resulting from the conclusion of a loan agreement, but also other requirements, for example, resulting from the imposition of penalties;
in order for a loan forgiveness agreement to differ from a donation agreement, it is necessary to economically justify the expediency of performing this action.

How to arrange

Since debt forgiveness, as mentioned above, is a bilateral transaction, it must be formalized in one of the following ways:

an agreement on the forgiveness of the entire amount or part of the debt;
an additional agreement to the current loan agreement on the forgiveness of the entire amount or a certain part of the debt.

Before starting the procedure for drawing up a debt forgiveness agreement, the lender must send a notice to the borrower organization in the following form:

As can be seen from the sample document, the notification should contain information:

on the underlying document, which in this case is the loan agreement;
on the amount of existing debt and the timing when the latter must be fully repaid;
about the intention of the lender to forgive the debtor of his obligations in respect of the entire debt or a certain part of it.

If the borrower wishes to agree with the lender, then one of the documents indicated above should be drawn up.

Sample Agreement

Most often, in the event of a decision to forgive an existing debt, an additional agreement is concluded between the parties to the loan agreement in the following form:

Thus, the presented document indicates the mutual consent of the creditor and the debtor to forgive the debt in a certain amount, formed upon the conclusion of a certain loan agreement between them.

The debt forgiveness agreement, as one of the existing legal norms for determining this action, does not have a clear form. Therefore, such a document can be concluded in any form, but only in writing.

What are the tax implications

Tax legislation in the Russian Federation is presented in a document called the Tax Code. In accordance with this document, every person who is a citizen of the Russian Federation is obliged to pay certain taxes.

The main taxes that legal entities are required to pay include value added tax and income tax.

Value added tax applies exclusively to goods and property of enterprises. In the case of forgiveness of a debt granted by one company to another and expressed in cash, this type of tax does not arise. And you don't have to pay for it.

The taxable base for corporate income tax consists of direct income generated as a result of the activities of the enterprise and income associated with the implementation of third-party activities, which are called non-operating.

If the legal entity - the borrower enters into a debt forgiveness agreement, then the entire amount of the loan should be treated as non-operating income. Consequently, the borrowing company is obliged to pay income tax on the entire amount of forgiven debt.

All rules and laws have their exceptions. This applies to the payment of corporate income tax.

If the organization-lender forgives the debt of the organization-borrower, and the lender is the founder of the borrower (that is, the borrower is a subsidiary) and the share of the lender in the authorized capital of the borrower is more than 50%, then the forgiven debt is not included in non-operating expenses. And therefore not subject to income tax.

How debt forgiveness is reflected in legislation

The fundamental documents regulating the activities of legal entities on the territory of the Russian Federation are the Civil and Tax Codes.

Debt forgiveness is detailed in Chapter 26 of the Civil Code of the Russian Federation. In addition, it is necessary to use, which explains all aspects of the loan agreement, including those concluded between legal entities.

According to these documents, a loan agreement between legal entities with or without interest must be concluded in writing.

The contract should stipulate all the most important aspects of the transaction being concluded, regarding the amount of the loan, the term for its repayment, the conditions for repayment, and so on.

All changes to the main loan agreement are possible only in the form of additional agreements, which, like the main agreement, are concluded in writing. The same applies to debt forgiveness agreements.

Based on chapter 26, forgiveness of the principal amount of the debt or a certain part of it is possible only by mutual agreement of the parties.

In terms of taxes arising from legal entities, as a result of the conclusion of a loan agreement and an agreement on debt forgiveness, one must rely on the Tax Code of the Russian Federation.

Value added tax is regulated by chapter 21 of this document.
Legal entities are required to pay income tax in accordance with Chapter 25 of the Tax Code.

In addition to the main documents, the most important acts explaining the forgiveness of the debt of one legal entity to another include:

corresponding Letters of the Ministry of Finance of Russia. In particular and ;
the rulings of the Arbitration Court (for example,);
decisions of the Courts of Arbitration of various districts (for example,) relating to earlier disputes over debt forgiveness.

All of these documents can be found on information sites and in more detail you can get acquainted with the legislative framework regarding the implementation of debt forgiveness.

Nuances in the design

Interest-bearing and interest-free loans are significantly different from each other.

An interest-bearing loan is issued on the condition that the borrower returns to the lender not only the entire amount of the principal debt, but an additional amount, which will be charged as a percentage of the main part.

In most cases, interest-bearing loans are repaid in parts consisting of the amount of principal and interest for a certain period, according to the payment schedule.

If an additional agreement is concluded between the borrower and the lender on the forgiveness of an interest-bearing loan, then, as a rule, it applies exclusively to the amount of the remaining debt.

The agreement additionally stipulates the actions to be taken with respect to the remainder of the unpaid interest. This amount can be forgiven along with the balance of the principal debt or collected from the borrower.

No additional payments are required for the interest-free loan issued. Consequently, there will be no additional conditions in the debt forgiveness agreement.

There are also significant differences in the payment of taxes arising from debt forgiveness.

If income tax is levied on the amount of forgiven debt issued on an interest-bearing loan, then the unpaid amount of interest (if forgiven) is also credited to taxable income, thereby increasing the latter.

Information about the company KSK GROUP

KSK Group has been leading its history since 1994. From the moment of foundation to the present day, the company has been one of the market leaders in consulting services in the field of audit, taxes, law, valuation and management consulting. Over 20 years of work, more than 2,000 projects have been implemented for the largest Russian companies.

KSK Group offers a comprehensive and practical solution to the most urgent tasks facing financial and general directors of companies and business owners. An individual approach, a deep understanding of the needs and goals of clients, combined with practical knowledge, allow us to solve these problems as efficiently as possible.

The team of KSK groups is a team of more than 350 specialists with unique experience in implementing projects for both medium and large Russian corporations.

Currently, KSK Group offers a full range of services and solutions for business:

audit according to Russian and international standards;
tax and legal consulting;
outsourcing and automation of business processes;
funding decisions;
marketing solutions and business strategy development;
management and personnel consulting;
assessment and expertise;
support of capital transactions;
due diligence.

Debt forgiveness is often practiced in relationships between commercial organizations, and the reasons for this may be different. However, in any case, two key questions arise: is debt forgiveness legal in principle and what tax consequences will this operation entail for the parties? Consider a similar situation on the example of operations for the supply of goods.

Legality of concluding a debt forgiveness agreement

In practice, debt forgiveness is formalized either by concluding an appropriate agreement (bilateral transaction) or by sending a debt forgiveness notice to the debtor (unilateral transaction).

The agreement or notice sent to the debtor must specify:

what debt is forgiven;
reasons for the debt;
the amount of debt forgiven.

In order to confirm by the parties the amount of debt specified in the agreement (notice) on debt forgiveness, it is advisable to preliminarily reconcile the calculations.

Let us now consider the features of taxation of profits from the creditor and the debtor when making such a transaction.

Tax accounting at the creditor company

Forms of debt forgiveness

Creditor's income from the sale of goods

For an accrual creditor, the forgiveness of a debt for payment for goods sold does not entail an adjustment to the proceeds from their sale previously recognized for tax purposes (). If the cash method is used, in which the date of receipt of income is the day the taxpayer receives money or property, then the question of adjustment, of course, does not arise.

Creditor's losses incurred as a result of debt write-off

The amount of voluntarily forgiven and written off receivables of the debtor to the creditor is not a bad debt in the understanding, therefore, to take into account losses as part of non-operating expenses on the basis of subpara. does not seem possible.

With regard to accounting for tax purposes the profit of a debt voluntarily forgiven to a debtor, the following options are possible.

OPTION 1

Write-off of receivables at the expense of the creditor's net profit.

According to the Russian Ministry of Finance, an organization cannot take into account, when forming the tax base for income tax, a part of the debt written off on the basis of a debt forgiveness agreement, since these costs cannot be considered as reasonable expenses in accordance with ( , ).

Specialists of the Federal Tax Service of Russia on the issue of determining the tax consequences of debt forgiveness adhere to the following point of view: debt forgiveness for the purposes of taxation of profits should be considered as a gratuitous transfer of property rights, as a result of which the worsening position of the creditor does not reduce its tax base for income tax in accordance with (letter of the Federal Tax Service of Russia dated November 22, 2004 No. 02-5-11 / [email protected], ).

Accordingly, following the position of the Ministry of Finance and the Federal Tax Service of Russia, the resulting receivables must be written off at the expense of the net profit of the creditor company.

OPTION 2

Recognition of receivables as non-operating expenses of the creditor and reduction of the taxable base.

The list of non-operating expenses that can be taken into account for income tax purposes is open (), which means that any costs that meet the requirements of validity and documentary exposure () and are not directly named in ("Expenses not taken into account for tax purposes) can be recognized in tax accounting ").

At the same time, in litigation that arises over the legality of including amounts under debt forgiveness agreements in expenses, the judiciary often makes negative decisions. For example, the Fifteenth Arbitration Court of Appeal indicated that neither during the audit nor during the trial, the taxpayer provided evidence of the direction of its actions to receive receivables and did not take actions to collect the debt in court. The statute of limitations for debt collection has not expired at the time of debt forgiveness. Having assessed the totality of these circumstances, the court indicated that the taxpayer did not provide evidence of the impossibility of collecting the disputed receivables (). Other courts adhere to a similar position (,).

Thus, the use by the creditor of this accounting option for the purposes of taxation of the profits of a debt voluntarily forgiven to the debtor company is possible only if the creditor has evidence that debt forgiveness is aimed at generating income. It should be noted that the mere fact of sending a debt forgiveness notice to the debtor in the absence of a creditor's commercial interest is not such evidence.

In order to avoid claims from the tax authorities, in the absence of evidence of a commercial interest, the write-off of "forgiven" receivables to the creditor should be carried out at the expense of the net profit of the creditor company.

VAT

The forgiveness of the debt to the buyer does not entail any VAT consequences for the creditor, since by the time the debt was forgiven, the tax base on the value of the shipped goods had already been determined and there were no grounds for adjusting the calculated VAT amount ( , ). This position is confirmed by arbitration practice ().

Debt forgiveness also does not fall under the closed list of cases in which it is necessary to restore VAT (). Arbitration practice on the issue of VAT recovery upon debt forgiveness has not yet been formed.

Tax accounting at the debtor company

income tax

Income generated from debt forgiveness

The Ministry of Finance of Russia emphasizes that when debt is forgiven, non-operating income is recognized on the basis of a written off accounts payable ().

Costs for the purchase of goods

If the debtor uses the accrual method, then when the debt is forgiven, the procedure for tax accounting for expenses in the form of the cost of purchased goods (works, services) is not adjusted, since these expenses are recognized regardless of the fact of payment ().

VAT

After the goods purchased under the supply agreement are accepted for accounting, provided that the supplier’s invoice is correctly drawn up, the buyer has the right to accept the VAT amount for deduction, provided that the purchased goods are intended for use in VAT-taxable transactions ( , ). Debt forgiveness does not imply any adjustment to the amount of the tax deduction.

The list of cases in which the taxpayer is obliged to restore (in whole or in part) VAT that was previously legally deductible is given in. This list is closed and is not subject to broad interpretation ( , ).

The specified list does not provide for the recovery of VAT, previously accepted for deduction on the delivered goods, when writing off accounts payable to the supplier in case of debt forgiveness.

Thus, in our opinion, there are no grounds for restoring VAT in the situation under consideration. Law enforcement practice on this issue has not developed.

Inna Batsyleva,
Head of Tax Consulting and Tax Dispute Resolution Department at KSK Group

Forgiveness of debt. Debtor's tax consequences

Debt forgiveness is not always a free deal. A typical example is the discounts provided for the fact that the buyer has fulfilled certain conditions of the contract. Meanwhile, the difference between debt forgiveness and gratuitous transfer is extremely important. Indeed, by proving that the debt has been written off on a reimbursable basis, the buyer will greatly simplify the calculation of taxable profit, and also avoid additional losses on VAT.

income tax

Consider two situations:

the debt is forgiven free of charge;
in exchange for the forgiveness of the debt, the buyer assumed any obligations.

Free debt forgiveness

If the creditor, forgiving the debt, does not require anything in return, the debtor actually receives property free of charge - the money that he would have to pay for the purchase or repayment of the loan. Let us make a reservation that the Civil Code of the Russian Federation prohibits commercial organizations from entering into gift agreements with each other that provide for gifts worth more than 500 rubles. Therefore, the gratuitous forgiveness of debt, the amount of which exceeds this limit, will be legal if the creditor is either a non-profit organization or an individual, say, the founder of the debtor.

But back to tax accounting. According to paragraph 8 of Art. 250 of the Tax Code of the Russian Federation, debt forgiven free of charge must be included in non-operating income. Moreover, the income is estimated at the market value of the property received.

But what is the market value of debt? Obviously, it is equal to the market price of the property, works or services for which the debt has been forgiven. It is necessary to evaluate such property (works, services) according to the rules of Art. 40 of the Tax Code of the Russian Federation. At the same time, the income on the forgiven debt for fixed assets should not be less than their residual value in the account of the seller. And the minimum market price of debt for goods (works, services) cannot exceed the costs of the seller for their manufacture or purchase (performance, provision). The conclusion about such restrictions can be drawn from the same paragraph 8 of Art. 250 of the Tax Code of the Russian Federation.

Note that property received free of charge is not subject to income tax if it came from:

the founder, whose share in the authorized capital of the recipient exceeds 50 percent;
organization, the authorized capital of which consists of more than half of the recipient's contribution.

This exemption is set out in s. 11 p. 1 art. 251 of the Tax Code of the Russian Federation. You can use it if the property (with the exception of money) is not transferred to third parties within a year.

But, alas, officials believe that when debt is forgiven, the benefit on property received free of charge cannot be applied. Thus, the Ministry of Taxation of Russia in the Letter of September 17, 2003 N 02-5-11 / 210-AZh859 stated that when a debt is forgiven, not property is transferred free of charge, but a property right. The benefit provided for in s. 11 p. 1 art. 251 of the Tax Code of the Russian Federation does not apply to property rights. And the Ministry of Finance of Russia forbade the use of this benefit when forgiving a debt in Letters of March 17, 2006 N 03-03-04 / 1/257 and April 7, 2006 N 03-03-02 / 79.

The situation is ambiguous. If we consider the forgiveness of debt as the transfer of property rights, then the benefit cannot really be used. And to prove that when the debt is forgiven, it is not the right that is transferred, but the property, it will be necessary in court. It is difficult to say how the case will end, since such judicial practice has not yet developed.

Reimbursable debt forgiveness

Now suppose that the seller forgives the debt in exchange for some action or obligation on the part of the buyer. As we have already said, such a situation does not in any way fall under the concept of "free transfer". Therefore, in this situation, it is necessary to be guided not by paragraph 8, but by paragraph 18 of Art. 250 of the Tax Code of the Russian Federation. It says that non-operating income includes the amount of accounts payable written off after the expiration of the limitation period or for other reasons. Just one of these "other grounds" can be considered the forgiveness of debt.

It would seem that it is indifferent for the buyer on the basis of which paragraph of Art. 250 of the Tax Code of the Russian Federation to include forgiven debt in income - clause 8 or clause 18. In both cases, debt increases taxable income. However, there is a difference. If paragraph 8 prescribes to calculate income at market value, which is always troublesome and threatens with disputes with tax authorities, then paragraph 18 does not contain such a requirement. In other words, guided by paragraph 18 of Art. 250, the buyer will include in the income exactly the amount of the debt that the seller has forgiven him. In addition, when applying paragraph 18 of Art. 250 of the Tax Code of the Russian Federation, the buyer has the opportunity to take into account the "input" VAT in the costs. We will tell you more about this below.

Thus, when making a debt forgiveness, it makes sense to write in the agreement (contract or other document) that the buyer assumes any obligations in return. Then it will be possible to include the forgiven amount in income on the basis of paragraph 18 of Art. 250 of the Tax Code of the Russian Federation.

But, unfortunately, officials still do not see much difference between the norms from paragraphs 8 and 18 of Art. 250. Let's take such a striking example of reimbursable debt forgiveness as the discount given to the buyer for fulfilling certain terms of the contract. So, in Letters of September 15, 2005 N 03-03-04 / 1/190 and of November 14, 2005 N 03-03-04 / 1/354, the Ministry of Finance of Russia instructs buyers to include such discounts in non-operating income on the basis of paragraph 8 of Art. 250, that is, at the market price. This approach is incorrect, and (alas, so far only theoretically) it can be challenged in court. True, here it is worth comparing possible legal costs with the expected benefits from defeating the inspectors. It is possible that the risk of losses from losing will be much more significant.

However, in some situations, officials, on the contrary, propose to apply paragraph 18 of Art. 250 of the Tax Code of the Russian Federation, when the creditor forgives the debt disinterestedly. Thus, in Letter No. 03-03-04/1/257 of March 17, 2006, the Russian Ministry of Finance classifies debt forgiveness as a write-off of accounts payable in such a situation. A Russian firm owes money to a foreign company. The founder of the Russian organization acquired the right to claim the debt from the creditor, and then forgave it to his "daughter". The officials decided that in this case the debtor should reflect non-operating income in his tax records on the basis of clause 18 of Art. 250 of the Tax Code of the Russian Federation. The conclusion is illogical, since the founder did not present any counterclaims to the debtor. However, it is not worth arguing with the Russian Ministry of Finance. After all, this approach is convenient for taxpayers. But it is impossible to extend the explanations of officials on one specific issue to other cases of "gratuitous" forgiveness of debts. The case may go to court, and it will be difficult for the firm to prove that forgiveness of the debt without reciprocal obligations is not a gratuitous transfer.

From January 1, 2006, VAT on purchased goods, works or services can be deducted without transferring money to the seller. If the seller subsequently forgave the debt, several questions arise for the buyer's accountant.

Do I need to recover the VAT accepted for deduction? It would seem that the answer is unequivocal - it is not necessary. After all, all the conditions for the deduction were met: the invoice was received, the goods were credited and used in activities subject to VAT. Yes and ch. 21 of the Tax Code of the Russian Federation does not say anything about restoring the tax on forgiven debts. Moreover, the supplier, having sold the goods, charged VAT payable to the budget, including on that part of the proceeds, the debt for which was subsequently forgiven.

Thus, the budget was not affected.

Meanwhile, officials have an opposite opinion on this matter. They still claim that a buyer who does not intend to pay for the goods loses the right to a deduction. The basis for this conclusion is the repeated statements of the Constitutional Court of the Russian Federation that a deduction is possible only if the buyer has incurred real costs (see, for example, Ruling of the Constitutional Court of the Russian Federation of November 4, 2004 N 324-O). If the debt is forgiven, then there are no real costs. Therefore, deduction is not possible.

In our opinion, the conclusions of officials are based on outdated statements of judges and currently have no legal basis. Another thing is that it will have to be proven in court. And it will not be easy to do this, given that arbitration judges will undoubtedly listen to the conclusions of the Constitutional Court of the Russian Federation.

Note. When debt is forgiven, the VAT accepted for deduction must be restored

Elena Vikhlyaeva, Chief Specialist of the Department of Indirect Taxes of the Department of Tax and Customs Tariff Policy of the Ministry of Finance of Russia

From January 1, 2006, the Tax Code of the Russian Federation does not require that the "input" VAT be deducted from the buyer. However, if the seller has forgiven the debt for the sold goods, the buyer is obliged to restore the "input" VAT, which was accepted for deduction upon posting this goods. The fact is that in this situation, the tax will never be transferred to the supplier, and, accordingly, the buyer will not incur real costs when purchasing the goods. And the Constitutional Court of the Russian Federation in Ruling of November 4, 2004 N 324-O came to the conclusion that in such cases the buyer does not have the right to deduct VAT. And although this Definition was issued at a time when VAT was deductible after payment, the principle of the reality of costs remains relevant.

How to account for the recovered tax? But suppose the VAT on the forgiven debt is restored. It is good if in the tax accounting of the buyer the debt forgiven on a reimbursable basis was included in income as a written off accounts payable, that is, on the basis of clause 18 of Art. 250 of the Tax Code of the Russian Federation. Then VAT on this debt can be attributed to non-operating expenses. So allows you to do pp. 14 p. 1 art. 265 of the Tax Code of the Russian Federation.

The situation is much worse if the forgiven debt was taken into account in income as property received free of charge. In this case, there is no reason to include the restored tax in expenses. Therefore, it is advisable to formalize debt forgiveness as a reimbursable operation. This will allow the recovered VAT to be included in non-operating expenses.

Example. In August 2006, Alfa LLC bought a consignment of goods from Delta LLC for 118,000 rubles. According to the terms of the contract, this purchase must be paid no later than September 29, 2006. Moreover, if the total amount of goods that Alpha LLC purchases from Delta LLC during 2006 exceeds 1,000,000 rubles, the buyer receives a discount upon payment - 10 percent of the outstanding debt. Alpha LLC by September 2006 purchased from Delta LLC goods in the amount of 1,200,000 rubles. and took advantage of the discount.

Is it possible to forgive a debt to a legal entity

Thus, in September 2006 LLC Alfa transferred 106,200 rubles to LLC Delta as payment for the August purchase. (118,000 rubles - (118,000 rubles x 10%)).

In tax accounting, the accountant of Alfa LLC reflected the discount as part of non-operating income as a written off accounts payable on the basis of clause 18 of Art. 250 of the Tax Code of the Russian Federation. At the same time, the VAT attributable to the discount was restored and written off as non-operating expenses on the basis of paragraphs. 14 p. 1 art. 265 of the Tax Code of the Russian Federation.

In the accounting of Alpha LLC, such entries are made.

In August 2006:

Debit 41 Credit 60

100 000 rub. (118,000 - 18,000) - the cost of goods is reflected;

Debit 19 Credit 60

18 000 rub. - reflected VAT;

18 000 rub. — accepted for VAT deduction.

In September 2006:

Debit 60 Credit 91 sub-account "Other income"

11 800 rub. (118,000 rubles x 10%) - reflects the discount received from the supplier;

Debit 68 subaccount "Calculations for VAT" Credit 19

———-¬
— ¦1800 rub.¦ (18,000 x 11,800: 118,000) — reversed
L———-
(restored) previously accepted for deduction of VAT attributable to the amount
discounts;

Debit 91 sub-account "Other expenses" Credit 19

1800 rub. - included in non-operating expenses of VAT;

Debit 60 Credit 51

RUB 106,200 - paid goods.

L.D. Vorontsov

Expert of the magazine "Glavbuh"

Sviridova Tatiana

Your organization owes another organization//Accounts receivable//

What is fraught with debt forgiveness for a creditor

If the creditor releases the debtor from his obligations, then there is a debt forgiveness, which is permissible provided that this does not violate the rights of other persons in relation to the creditor's property (Article 415 of the Civil Code of the Russian Federation).

Debt forgiveness is a two-way deal whereby the creditor expresses his will to end the obligation in a certain way. At the same time, the consent of the debtor to forgive the debt is mandatory (Article 407, 415 of the Civil Code of the Russian Federation). Thus, debt forgiveness presupposes the presence of a clearly expressed will of the creditor to release the debtor from the obligation to repay the debt. The silence of the creditor, inaction, failure to present their demands for the provision of dues cannot be considered debt forgiveness.

It is important to note that the demand for performance of an obligation is a right, not an obligation, of the creditor. Consequently, the creditor has the right to waive his claims, except in cases where the rights and legitimate interests of third parties are violated (for example, a mother cannot refuse to receive alimony for a minor child (clause 1 of article 60, clause 3 of article 80 of the Family Code RF)).

It is possible to forgive a debt to a counterparty (organization, citizen), in particular, under a contract for the sale of goods (for the amount of payment), under a loan agreement (for the amount of the loan and (or) interest for the use of borrowed funds).

How to apply for debt forgiveness

The legislation establishes certain requirements for the execution of a debt forgiveness agreement, in case of violation of which the court may recognize the agreement as not concluded.

The debtor is primarily interested in the correct execution of the agreement, since it is important for him to eliminate the risk that after some time the creditor will challenge the debt forgiveness agreement and still demand to fulfill the obligation.

The creditor is also interested in the competent execution of the debt forgiveness agreement so that the court does not recognize it as not concluded, especially if the debt forgiveness is due to some kind of counter obligations of the debtor. when the deadline for its execution has expired, etc. In order to avoid the risk of subsequent recognition of debt forgiveness as a donation agreement, special attention must be paid to ensuring that the agreement specifies in detail all the benefits that the creditor will receive from debt forgiveness.

In addition, the parties can draw up a bilateral document, or the creditor himself has the right to prepare the document alone. Forgiveness of a debt, for example, can be formalized by a letter from the creditor (determination of the Supreme Arbitration Court of the Russian Federation dated February 28, 2011 No. VAS-255/11).

By virtue of part 1 of article 139 of the Arbitration Procedure Code of the Russian Federation, a debt can also be forgiven by concluding and approving a settlement agreement by the court, which the parties have the right to conclude at any stage of the arbitration process, including during the execution of a judicial act.

It should be noted that debt forgiveness is not allowed in case of violation of the rights of others in relation to the creditor's property, for example, if debt forgiveness is made before the announcement of the commencement of bankruptcy proceedings of the organization.

Debt forgiveness or donation?

According to paragraph 4 of paragraph 1 of Article 575 of the Civil Code of the Russian Federation, commercial organizations are not entitled to give each other anything, with the exception of ordinary gifts, the value of which should not exceed 3,000 rubles.

Despite the fact that debt forgiveness and gift are different transactions, in some cases the Supreme Arbitration Court of the Russian Federation believes that debt forgiveness between commercial organizations should be considered as a gift. This may be when the court establishes that the creditor intended to release the debtor from the obligation of debt as a gift (clause 3 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 21, 2005 No. 104 “Review of the practice of application by arbitration courts of the norms of the Civil Code of the Russian Federation on certain grounds termination of obligations”; hereinafter – information letter No. 104).

In order to prove that debt forgiveness is not a donation, it is necessary to confirm the economic feasibility of the transaction, that is, to show the relationship between debt forgiveness and the receipt by the creditor of property benefits under any obligation between him and the debtor. An analysis of arbitration practice made it possible to identify a number of circumstances that may indicate that debt forgiveness will give the creditor a property benefit. In particular, evidence of property benefit for the creditor may be:

receiving the amount of debt in the unforgiven part without going to court (clause 3 of the information letter No. 104);
the obligation of the debtor to perform in favor of the creditor any actions on favorable terms;
compensatory nature of the transaction for the assignment of the right to claim (determination of the Supreme Arbitration Court of the Russian Federation dated June 30, 2009 No. VAS-8125/09), etc.
continuation of joint commercial activities (decree of the Federal Antimonopoly Service of the North Caucasus District dated July 9, 2010 in case No. A53-21595 / 2009);
an amicable agreement aimed at settling mutual claims, where debt forgiveness is one of the conditions (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 15, 2010 No. 2833/10).

If the court establishes that the actions of the creditor contain signs of donation, then a restriction is imposed on the relationship under this transaction, prohibiting donation between organizations in the amount of more than 3,000 rubles (an exception is a contribution from the founding organization, if such an obligation is provided for in the charter of the LLC) (Art. 572, 575 of the Civil Code of the Russian Federation, clause 2, article 14, paragraph 5, clause 1, article 29 of the Law of February 8, 1998 No. 14-FZ). This means that if the contract is concluded for a large amount, the transaction through the court can be recognized as void, as contrary to the law (clause 1, article 166, article 168 of the Civil Code of the Russian Federation).

The tax implications of debt forgiveness for the creditor

It is important to remember that debt forgiveness, in fact, carries a certain tax risk for the creditor. It lies in the fact that the tax inspectorate may consider it unlawful to attribute the amount of forgiven debt to non-operating expenses, which reduce the tax base in order to calculate income tax (clause 2, clause 2, article 265, clause 2, article 266 of the Tax Code of the RF Tax Code of the Russian Federation) .

In this matter, the tax authorities refer to the clarifications of the financial department, which believes that debt forgiven both in full (letter of the Ministry of Finance of Russia dated August 21, 2009 No. 03-03-06 / 1/541) and in parts (letter of the Ministry of Finance of Russia dated March 18, 2011 No. 03-03-06 / 1/147). In a letter from the Ministry of Finance of Russia dated March 18, 2011 No.

What is more profitable in terms of taxes: forgive the debt or wait for the statute of limitations to expire

No. 03-03-06 / 1/147, the specialists of the financial department indicated that the amount of forgiven debt under no circumstances meets the criteria of economic feasibility and focus on generating income. Clause 2, clause 2, article 265 of the Tax Code of the Russian Federation cannot be applied to it, since this provision refers to bad debts, and the forgiven debt, by virtue of clause 2, article 266 of the Tax Code of the Russian Federation, is not such. Since voluntary debt forgiveness is a gratuitous transfer of property, therefore, on the basis of paragraph 16 of Article 270 of the Tax Code of the Russian Federation, such debt cannot be taken into account in tax expenses (letter of the Ministry of Finance of Russia dated July 12, 2006 No. 03-03-04 / 1/579 ).

Meanwhile, a similar approach to debt forgiveness Presidium of the Supreme Arbitration Court of the Russian Federation in a resolution of 15.07.2010. No. 2833/10 (hereinafter referred to as Resolution No. 2833/10) recognized as erroneous. The court pointed out that the list of non-operating expenses and the taxpayer's losses equated to such expenses is not exhaustive. This allows the taxpayer to take into account in the composition of expenses that reduce the tax base for income tax, including losses associated with debt forgiveness.

At the same time, a reservation was made on the binding nature of the interpretation of legal norms given in the decision when considering similar cases by lower arbitration courts.

However, the tax authorities are inclined to assert that the position of the Supreme Arbitration Court of the Russian Federation, favorable to taxpayers, applies only to those cases where the parties have concluded not just an agreement on debt forgiveness, but an amicable agreement.

Decree No. 2833/10 was adopted in a case in which the creditor forgave part of the debt to the debtor by concluding a settlement agreement, so there is a risk that the tax authorities will consider this ruling as extending its effect only to similar cases. When forgiving a debt, for example, by concluding a civil law agreement, the tax authorities will use the previously adopted clarifications of the Russian Ministry of Finance.

The Federal Tax Service of Russia in letters dated 12.08.2011. No. SA-4-7/13193 and dated December 22, 2010. No. ШС-37-3 / 18261 indicated that if an organization can prove that debt forgiveness is aimed at generating income (the presence of a commercial interest), it has the right to take into account the amount of forgiven debt when calculating income tax. In this case, commercial interest, for example, can be expressed in reaching an amicable agreement aimed at settling the mutual claims of the parties. At the same time, the expenses incurred by the organization will comply with the requirements of paragraph 1 of Article 252 of the Tax Code of the Russian Federation. Since the list of non-operating expenses (including losses equated to non-operating expenses) is not closed, the company has the right to take into account the amount of forgiven debt. In the absence of attempts by the organization to collect the debt, it could be written off at the time of the expiration of the limitation period in accordance with paragraph 2 of paragraph 2 of Article 265 of the Tax Code of the Russian Federation. The tax department refers to the position of the Presidium of the Supreme Arbitration Court of the Russian Federation, given in the resolution of 15.07.2010. No. 2833/10.

However, the risk of claims for such expenses still remains, since it is not known what explanations tax inspectors will be guided by when conducting audits.

Sviridova Tatyana Vladimirovna
General Director of the audit firm Svirita LLC
Auditor
Certified consultant on taxes and fees
Forensic Expert

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Debt Forgiveness: Accounting and Tax Accounting

Any pecuniary obligation in the performance of which the original connection between the creditor and the debtor is lost must be terminated in accordance with the terms of the concluded agreement. According to ch. 26 of the Civil Code of the Russian Federation, termination of obligations can occur for several reasons, one of which is debt forgiveness. The reflection in accounting and tax accounting of the consequences of this operation will be discussed in the article.

Termination of obligations by forgiveness of debt does not contradict the legislation of the Russian Federation. In accordance with Art. 415 of the Civil Code of the Russian Federation, the obligation is terminated by the release by the creditor of the debtor from his obligations, if this does not violate the rights of other persons in relation to the property of the creditor. According to the author, the norms of this article can be applied only in relation to operations carried out at the expense of entrepreneurial activity. Therefore, we will consider the tax and accounting operations of debt forgiveness for the entrepreneurial activities of organizations.

Debt Forgiveness Tax Accounting Income Tax

Like all organizations, budgetary institutions are payers of income tax, therefore, the provisions of Ch. 25 "Corporate income tax" of the Tax Code of the Russian Federation, in this regard, they need to know the features of tax accounting for debt forgiveness.

Since there is no concept of "debt forgiveness" in the tax legislation, we will proceed from its definition given in the Civil Code. This right is granted by Art. 11 of the Tax Code of the Russian Federation, according to which the concepts and terms of civil law used in tax legal relations are applied in the sense in which they are used in the specified branch of legislation. Tax authorities, when conducting desk audits of the correctness of calculating income tax, equate debt forgiveness with the gratuitous transfer of property or property rights. The Ministry of Finance expressed its opinion on this matter in Letter No. 03-03-04/1/579 dated 12.07.2006, with which it is not always possible to agree. Let's explain why. Operations for forgiveness of debt and gratuitous transfer of property or property rights have significant differences. Let's list them. For debt forgiveness:

obligations are terminated unilaterally (one desire of the creditor is enough);
no contract is required;
debt forgiveness on a reimbursable basis is not excluded.

Free transfer of property or property rights is always accompanied by:

conclusion of an agreement between the donor and the donee;
the absence of counter obligations on the part receiving such a gift.

This is confirmed by paragraph 2 of Art. 248 of the Tax Code of the Russian Federation, which states that property (works, services) or property rights are considered received free of charge if the receipt of this property (works, services) or property rights is not associated with the recipient's obligation to transfer property (property rights) to the transferor ( perform work for the transferor, provide services to the transferor).

Based on the foregoing, the main difference between these operations is that with a gratuitous transfer there are no counter obligations on the part of the donee, however, the termination of obligations upon forgiveness of a debt is not necessarily gratuitous. For example, one party partially forgives the debt to the other party, and in return, the rest of the debt is transferred to its account. This situation was considered by the Presidium of the Supreme Arbitration Court of the Russian Federation in Information Letter No. 104 dated December 21, 2005. The judges came to the conclusion that the relationship between the creditor and the debtor to forgive the debt can be qualified as a donation only if the court establishes the intention of the creditor to release the debtor from the obligation to pay the debt as gift. The Information Letter of the Supreme Arbitration Court of the Russian Federation dated December 20, 2005 N 97 also states: if the partial forgiveness of the debt was aimed at restoring the debtor's solvency and no evidence was presented indicating the intention of the creditors to gift the debtor, such debt forgiveness is not recognized as a donation. As can be seen from the above documents, it is sometimes possible to prove the compensatory nature of a forgiven debt only in court. But it is realistic to equate debt forgiveness for tax purposes with a gratuitous transfer only if the creditor does not require anything in return from the debtor. If this condition is not met, then the tax accounting rules established for a gratuitous transfer do not apply to paid debt forgiveness. In this regard, it is necessary to consider the taxation of the debt forgiveness operation of the creditor organization and the debtor organization on a reimbursable and non-reimbursable basis.

Creditor organization. If the debt is forgiven free of charge, then in accordance with paragraph 16 of Art. 270 of the Tax Code of the Russian Federation, it is impossible to include this amount in expenses that reduce the tax base for income tax.

With reimbursable debt forgiveness, the creditor requires the debtor to perform certain actions that are indicated in the agreement.

In this case, the creditor organization can prove the reimbursable nature of this operation if its purpose is the subsequent generation of income. The action of paragraph 16 of Art. 270 of the Tax Code of the Russian Federation in this case should not apply to reimbursable debt forgiveness. You can use pp. 20 p. 1 art. 265 of the Tax Code of the Russian Federation, which allows you to reduce the taxable base for any reasonable non-operating expenses. It should be noted that based on the above information letters (the tax authorities refer debt forgiveness to a gratuitous transfer), the creditor organization will probably have to defend its position in the arbitration court.

Organization-debtor. Considering the gratuitous forgiveness of debt from the position of the debtor organization, we note that in accordance with paragraph 8 of Art. 250 of the Tax Code of the Russian Federation property (works, services) received free of charge or property rights when calculating income tax are included in non-operating income. At the same time, it should be taken into account that the assessment of income should be carried out on the basis of market prices, determined taking into account the provisions of Art. 40 of the Tax Code of the Russian Federation. Information about prices is confirmed by the taxpayer - the recipient of property (works, services) documented or through an independent assessment.

With a reimbursable debt forgiveness, the debtor organization will no longer use paragraph 8, but paragraph 18 of Art. 250 of the Tax Code of the Russian Federation, according to which non-operating income includes the amount of accounts payable (obligations to creditors) written off not only due to the expiration of the limitation period, but also for other reasons. A debt forgiveness operation can be that other ground.

The question arises: does it matter on the basis of which paragraph - 8 or 18 Art. 250 of the Tax Code of the Russian Federation - should the amount of forgiven debt be included in non-operating income? It does, because according to paragraph 8, as already mentioned, income is determined at market value, which is fraught with significant difficulties and disputes with the tax authorities, and paragraph 18 does not contain such a requirement. Consequently, in the case of reimbursable debt forgiveness, the debtor organization will include in non-operating income exactly the amount that the creditor organization forgave it. The reimbursable nature of debt forgiveness provided for in the agreement will protect the debtor organization from the negative consequences of this operation.

value added tax

Let us consider the features of debt forgiveness taxation in the accounting of a creditor organization and a debtor organization that carry out operations subject to VAT and are its payers.

Creditor organization. According to paragraphs. 1 p. 1 art. 146 of the Tax Code of the Russian Federation, the transfer of ownership of goods, the results of work performed, the provision of services free of charge is recognized as their sale. Thus, if a debt forgiveness operation is classified as a gratuitous transfer, then it is subject to VAT. At the same time, from 01.01.2006, in accordance with paragraph 2 of Art. 2 of the Federal Law of July 22, 2005 N 119-FZ "On Amendments to Chapter 21 of Part Two of the Tax Code of the Russian Federation and on Recognizing Certain Provisions of Legislative Acts of the Russian Federation on Taxes and Duties as Invalid" (hereinafter - Law N 119-FZ), if an institution paying VAT previously determined the tax base "on payment", then it must calculate VAT on the amount of the forgiven debt and transfer it to the budget. If the accounting policy during the period of formation of receivables for tax purposes provided for the accrual of VAT "on shipment", then it is not necessary to calculate VAT, since it has already been accrued and paid to the budget upon shipment.

Please note: organizations that have received the right to exemption from the performance of duties of a VAT payer under Art. 145 of the Tax Code of the Russian Federation or in the case of classifying taxable transactions as transactions that are not subject to taxation in accordance with Art. 149 of the Tax Code of the Russian Federation, when writing off the amount of receivables, they are required to calculate and pay to the budget the amounts of VAT presented to buyers before obtaining the right to exemption. That is, taxpayers apply the procedure for determining the tax base (exemption from taxation) that was in effect on the date of shipment of goods (works, services) (clause 8, article 149 of the Tax Code of the Russian Federation).

Organization-debtor. In the event of accounts payable before 01.01.2006, the amounts of "input" VAT on goods (works, services) received could not be deducted, since the fact of payment of tax amounts to suppliers was a necessary condition for this. When debt is forgiven, VAT amounts must be charged in tax accounting on the basis of paragraphs. 14 p. 1 art. 265 of the Tax Code of the Russian Federation for non-operating expenses, if accounts payable (obligations to creditors) for such a supply are written off in the reporting period in accordance with clause 18 of Art. 250 of the Tax Code of the Russian Federation. This rule will be valid until the first tax period of 2008. If the accounts payable arose after 01/01/2006, then the fact of payment does not affect the organization's right to receive a VAT deduction, therefore, when debt is forgiven, it is not necessary to include tax amounts in expenses.

When performing a debt forgiveness operation after 01/01/2006, the question arises: should the amount of VAT previously accepted for reimbursement be restored? On this occasion, the Ruling of the Constitutional Court of the Russian Federation dated 04.11.2004 N 324-0 states that a deduction is possible only if the buyer has made real costs. Therefore, if the buyer has not incurred the costs, then the deduction is not due to him. Despite the fact that the court ruling was issued before the entry into force of Law N 119-FZ, when, as indicated above, the moment of acceptance for VAT deduction was the fact that the tax amount was paid to the supplier, during desk audits by the tax authorities, this court decision is taken into account.

The nuances of debt forgiveness between legal entities

You can argue with them using paragraph 3 of Art. 170 of the Tax Code of the Russian Federation, which lists the main cases of VAT recovery. This list does not contain the basis for its restoration under the debt forgiveness operation.

Reflection of the debt forgiveness operation in accounting

As already noted, the concept of debt forgiveness, given in the Civil Code, is absent in the tax legislation, and it is not in the budget legislation either. Consider how this operation should be reflected in the accounting of the creditor organization and the debtor organization (budgetary institutions).

Creditor Organization

In the budget accounting registers, the creditor organization has accounts receivable. When a decision is made to forgive a debt, the entire procedure for writing it off (accounts receivable in full or in part) in accounting is reduced to reflecting this operation in budget accounts. However, the budget legislation does not contain rules for writing off debt. Neither the Instructions for Budget Accounting, approved by Order of the Ministry of Finance of Russia dated February 10, 2006 N 25n, nor Appendix N 1 to it, there is a direct indication of which account should be used when writing off debt. The author of the article recommends reflecting the write-off of receivables under the debt forgiveness operation using the analytical accounts of account 401 01 240 "Expenses for gratuitous and non-refundable transfers to organizations." The accounts receivable of the debtor organization are recorded in the accounting records in the debit of the corresponding analytical account 205 00 560 "Settlements with income debtors". Therefore, the write-off of the amount of debt in accounting should be reflected in the posting:

Debit of accounts 401 01 241 "Expenses on gratuitous and non-refundable transfers to state and municipal organizations", 401 01 242 "Expenses on gratuitous and non-refundable transfers to organizations, except for state and municipal organizations"

Credit of account 205 00 000 "Settlements with income debtors".

Organization-debtor

In the accounting of the debtor organization, the unpaid amount for the delivered goods, works, services is listed on account 302 00 000 "Settlements with suppliers and contractors". The amount of debt forgiveness will be reflected in the accounting as follows:

Debit account 302 00 000 "Settlements with suppliers and contractors"

Credit of accounts 401 01 151 "Income from other budgets of the budget system of the Russian Federation", 401 01 180 "Other income".

Consider an example of how a debt forgiveness operation is reflected in the accounting records of a creditor and a debtor.

Example 1. In December 2005, budgetary organization No. 1 provided services (under Article 226 of the ECR) to budgetary organization No. 2 in the amount of 118,000 rubles. (including VAT - 18,000 rubles). In February 2007, organization No. 1, in order to restore the solvency of organization No. 2, informed it of the forgiveness of a debt in the amount of 40,000 rubles. The organizations drew up an appropriate agreement, in which they also indicated that organization No. 2 undertakes to pay the remaining debt in February - 78,000 rubles. payment order, which was done. Settlements were made as part of an income-generating activity. Organizations are subordinate to different main managers of budget funds of the same level. The moment of determining the tax base for VAT in the period when debts arose was determined "by shipment".

These operations in the budget accounting of the creditor organization are reflected as follows:

Since the debt forgiveness operation considered in the example in order to restore the debtor's solvency, according to the decision of the arbitration court (Information Letter of the Supreme Arbitration Court of the Russian Federation of December 20, 2005 N 97) is reimbursable, the amount of debt forgiven can be attributed in accordance with paragraphs. 20 p. 1 art. 265 of the Tax Code of the Russian Federation for the purpose of calculating income tax on non-operating expenses.

The debt forgiveness operation of the debtor organization will look like this:


December 2005
Included in expenses
Reflected VAT on rendered
February 2007
Amount reflected in accounting forgiven debt
VAT deducted from the amount forgiven debt<*>
Payment transferred remaining amount of debt
The amount of VAT shown taxable