Dividends for LLC participants - a step-by-step instruction for profit distribution. How is profit distributed in an LLC? Distribution of part of net profit

S. NIKITINA
Consulting group RUNA

According to the Chart of Accounts, financial accounting economic activity organizations and instructions for its use, approved by order of the Ministry of Finance of Russia dated October 31, 2000 No. 94n, the indicators “net profit” and “not distributed profit»are formed on different accounting accounts.

The net profit indicator is formed on the balance sheet account 99 "Profit and Loss" by the end of the reporting year and represents the final financial result of the organization's activities for reporting period.

Possibility to write off any expenses at the expense of net profit, except for those determined by regulatory acts on accounting, not provided. Thus, in addition to profit and loss from common species activities and other income and expenses in the debit of account 99, only expenses incurred by the organization in connection with emergency circumstances (natural disaster, fire, accident, flood, etc.), accrued tax payments on profit of organizations, as well as the amount of tax penalties due.

The amount of net profit of the reporting year is written off in the final turnovers of December as follows:

Debit 99 "Profit and Loss", Credit 84 " Undestributed profits(uncovered loss)".

Balance account 84 is designed to summarize information on the presence and movement of the amount of retained earnings (uncovered loss).

In accordance with the letter of the Ministry of Finance of Russia dated August 23, 2002 No. 04-02-06 / 3/60, retained earnings of previous years represent the balance of profit remaining at the disposal of the organization based on the results of work for the last reporting year and decisions made on its use (direction in reserves formed in accordance with the legislation or constituent documents, to cover losses, to pay dividends, etc.). Based on this, net profit is formed on the balance sheet of the organization only by the end of the current (reporting) year, i.e. we are talking about reflecting the operations of the organization on the accounts of accounting for the current period.

Analytical accounting on account 84 should be organized in such a way as to ensure the formation of information on the areas of use of funds.

According to the current legislation, the organization's net profit can be directed to contributions to the reserve capital, to the payment of dividends, the organization's capitalization, as well as to other payments by decision of the shareholders (founders) of the organization.

Deductions to the reserve capital

Reserve capital can be created in joint-stock companies and in limited liability companies. In accordance with Art. 35 of the Federal Law of December 26, 1995 No. 208-FZ (as amended on May 24, 1999) “On Joint Stock Companies” (hereinafter - Law No. 208-FZ), the reserve fund of the company is intended to cover its losses; redemption of the company's bonds; redemption of shares of the company in the absence of other means. The reserve fund cannot be used for other purposes.

Joint stock companies form a reserve capital in the amount provided for by the charter of the company, but not less than 5% authorized capital.

The reserve capital of the company is formed by mandatory annual deductions until it reaches the amount established by the charter of the company. The amount of annual deductions is provided for by the charter of the company, but cannot be less than 5% of net profit until the amount established by the charter of the company is reached.

Article 30 of the Federal Law of February 8, 1998 No. 14-FZ "On Limited Liability Companies" (hereinafter - Law No. 14-FZ) grants a limited liability company the right to create a reserve fund and other funds in the manner and in the amount provided for by the charter of the company . The procedure for using the resources of the reserve fund is determined by the supreme management body of the company.

In limited liability companies, the creation of a reserve fund, unlike joint-stock companies, is voluntary. Thus, when approving the charter, the founders express their consent in advance to the allocation of part of the profit to the formation of reserve capital. No further decision is required in this regard. Therefore, we can conclude that the direction of profit for the formation of a reserve fund is mandatory procedure that does not require the decision of the owners.

According to the Chart of Accounts, deductions to reserve capital from profit are reflected in the credit of account 82 "Reserve capital" in correspondence with the debit of account 84.

Payment of dividends

In accordance with paragraph 1 of Art. 43 of the Tax Code of the Russian Federation, a dividend is any income received by a shareholder (participant) from an organization in the distribution of profit remaining after taxation (including in the form of interest on preferred shares), for shares (shares) owned by a shareholder (participant) in proportion to the shares of shareholders (participants) in the authorized (share) capital of this organization.

According to p.p. 11 p. 1 art. 48 of Law No. 208-FZ (as amended on October 31, 2002 No. 134-FZ), the distribution of profits (including the payment (declaration) of dividends) is within the competence general meeting shareholders, and in accordance with paragraph 1 of Art. 47 of this Law, the issues provided for by the specified subparagraph must be resolved at the annual meeting of shareholders, which is held within the time limits established by the charter of the company, but not earlier than two months and not later than six months after the end of the financial year.

A joint-stock company has the right to make decisions not only on the payment of dividends based on the results of the financial year, but also on the payment of interim dividends based on the results of the first quarter, six months, nine months of the financial year (clause 1, article 42 of Law No. 208-FZ). Such a decision may be taken within three months after the end of the relevant period.

Based on Art. 33 of Law No. 14-FZ approval of annual reports and annual balance sheets, as well as making a decision on the distribution of the company's net profit among the company's participants, falls within the competence of the general meeting of the company's participants. According to Art. 28 of Law No. 14-FZ, the 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 profit to be distributed among the participants of the company is made by their general meeting, which must be held no earlier than two months and no later than four months after the end of the financial year (Article 34 of Law No. 14-FZ).

Thus, the legislation establishes strict deadlines for the distribution of net profit, including the accrual of dividends. The use of retained earnings for the payment of dividends is lawful if the relevant decision is made by the general meeting of shareholders (participants) within the time limits established by law.

Retained earnings of previous years cannot be used to pay dividends.

Considering that the source of payment of dividends is the company's profit after taxation (net profit), which is determined according to the financial statements, dividends in a joint-stock company can be accrued and paid only from the net profit of the joint-stock company of the reporting year. This point of view is reflected in the letter of the Ministry of Finance of Russia dated August 23, 2002 No. 04-02-06/3/60.

This procedure for distributing the amounts of net profit for the payment of dividends is also confirmed by arbitration practice. In paragraph 15 of the section "Disputes related to the payment of dividends" of the decision of the Plenum of the Supreme Arbitration Court Russian Federation dated November 18, 2003 No. 19 “On Certain Issues of the Application of the Federal Law “On Joint Stock Companies” clarifies that the decision to pay (declare) dividends, including the amount of the dividend and the form of its payment, is taken by the general meeting of shareholders for shares of each category (type), including preferred ones, in accordance with the recommendations of the board of directors (supervisory board) of the company. In the absence of a decision to declare dividends, the company is not entitled to pay, and the shareholders cannot demand their payment.

Dividends, the decision on the payment (announcement) of which is adopted by the general meeting of shareholders, are subject to payment within the period determined by the charter of the company or by the decision of the general meeting of shareholders. If such a period is not defined by the charter, it should not exceed 60 days, including when it is established by a decision of the general meeting (clause 16 of the resolution of the plenum of the Supreme Arbitration Court of the Russian Federation dated November 18, 2003 No. 19).

The allocation of part of the profit of the reporting year to the payment of income to the founders (participants) of the joint-stock company following the approval of the annual financial statements is reflected in the debit of account 84 and the credit of account 70 “Settlements with personnel for wages” or 75 “Settlements with founders”.

Despite the fact that, according to the Chart of Accounts, when paying interim dividends, an entry is also provided for the debit of accounts 84 and the credit of accounts 75 and 70, in our opinion, such an entry is incorrect and should not be used in the current year.

According to the Tax Code of the Russian Federation, the amount of distributed profit is recognized as a dividend, regardless of whether the profit is distributed at the end of the year or before its end. The only requirement is that it must be a net profit, i.e. profit remaining after tax.

However, as already mentioned, after the decision of the general meeting of shareholders (founders) to approve annual accounts and the distribution of profits, and until the end of the current year, the organization's account 84 reflects not net, but retained earnings, i.e. one that is undistributable. And in accordance with paragraph 2 of Art. 42 of Law No. 208-FZ, the source of payment of dividends is the profit of the company after taxation (net profit of the company). Dividends on preferred shares certain types can also be paid out of the special funds of the company previously formed for these purposes. The net profit of the company is determined according to the financial statements of the company and is reflected in the financial statements by the end of the financial year by comparing credit and debit turnovers on account 99.

In our opinion, it is advisable to reflect the accrual of interim dividends during the year with the entry: Debit 99, Credit 75. In the Profit and Loss Statement, accrued interim dividends should be reflected with a minus sign (in parentheses) after the line “Current income tax”.

Taking into account the requirement of due diligence in accounting, i.e. greater willingness to recognize expenses and liabilities in accounting than possible income and assets, preventing the creation of hidden reserves (clause 7 of the accounting regulation “ Accounting policy organization” (PBU 1/98), approved by order of the Ministry of Finance of Russia dated December 9, 1998, No. 60n), making a decision to pay dividends more frequently than once a year may lead to negative tax consequences. For example, a situation is possible in which an organization that paid dividends based on the results of the 1st quarter of 2004 from the profit formed during this period may receive a loss based on the results of work for this year.

Thus, only those organizations that have a stable financial position and are confident in increasing profits by the end of the year can afford to make a decision on the distribution of profits in the form of interim dividends.

It should be taken into account that from January 1, 2005, the income of taxpayers - individuals and legal entities from equity participation in the activities of organizations received in the form of dividends are taxed at a rate of 9%, and not 6%, as it was before. This amendment was made to paragraph 4 of Art. 224 and p.p. 1 p. 3 art. 284 of the Tax Code of the Russian Federation Federal Law of July 29, 2004 No. 95-FZ. Thus, when paying dividends in 2005 for 2004, such income will be taxed at a rate of 9%.

Other payments from profit

For accounting purposes, funds transferred in connection with the implementation of charitable activities, sporting events, recreation, cultural and educational events and other similar events in accordance with paragraph 12 of the accounting regulation "Expenses of the organization" (PBU 10/99), approved by order of the Ministry of Finance Russia dated May 6, 1999, No. 33n, are non-operating expenses and are reflected in the debit of account 91 “Other income and expenses”. However, such payments can also be made at the expense of retained earnings, since the decision to use retained earnings in a joint-stock company or a limited liability company is within the competence of the general meeting of shareholders (participants). Therefore, if it is determined by the minutes of the general meeting of shareholders (participants) that some expenses should be made at the expense of profit, this expense should be reflected in accounting in the debit of account 84.

Thus, when closing (reforming) the balance sheet after the appropriate decision is made by the shareholders (members) of the company, the direction of profit to the reserve capital, for consumption needs and for the payment of dividends to the founders should be reflected. The distribution of profits to consumption and accumulation funds is reflected in internal entries on account 84, and in analytical accounting, the used and unused parts of net profit are distinguished.

Example. According to the results of 2003, the joint-stock company received a profit in the amount of 1,200,000 rubles. The general meeting of shareholders on March 25, 2004 approved the results of the company's activities for 2003 and made a decision to pay dividends in the amount of 1,000,000 rubles. and about the direction of 200,000 rubles. for the organization of summer holidays for children. In accounting, these transactions were reflected as follows:
December 2003 final entries:
Debit 99, Credit 84, sub-account "Retained earnings of the current year" - 1,200,000 rubles. - reflected undistributed profit;
Debit 84, subaccount "Retained earnings", Credit 75, subaccount "Calculations for the payment of income" - 1,000,000 rubles. - dividends are accrued;
Debit 84, sub-account "Retained earnings", Credit 84, sub-account "Profit for use according to the approved estimate" - 200,000 rubles. - the amount of profit in 2003 was reserved for use in 2004 according to the approved estimate for the organization of children's summer holidays.
During 2004, in the debit of account 84, the sub-account “Profit for use according to the approved estimate”, in correspondence with the cash accounts (other accounts, for example, for the accounting of materials), the expenditure of the reserved amounts of profit for the summer holidays of children was reflected. Thus, when it is actually used, the balance on account 84, the sub-account "Profit for use according to the approved estimate", will not be.
The use of profit for the payment of bonuses to employees of the organization, the provision of financial assistance, to pay for cultural and sporting events, etc. The main condition is that a decision must be made by the owners of the organization on the use of net profit for these purposes.

Undestributed profits ( uncovered loss) characterizes the net profit accumulated during the existence of the organization, remaining at its disposal (after the payment of dividends, the creation of a reserve fund, etc.). This part of the profit is no longer spent, and no further entries are made in the debit of account 84. Therefore, this part of the profit is a source of financing capital investments production and non-production purposes.

In analytical accounting, retained earnings used as financial support for the development of the organization and other similar activities for the acquisition (creation) of new property, as well as those not yet used, can be separated.

In order to control the status and use of funds to finance capital investments for analytical accounting it is recommended to open two sub-accounts on account 84: “Retained earnings formed”, “Retained earnings used”. The undistributed profit of the organization is sent to the sub-account "Retained earnings formed" and an entry is made:

Debit 99-9, Credit 84, sub-account "Retained earnings formed".

As fixed assets are acquired and other capital investments are made, simultaneously with the entry on the debit of account 01 and the credit of account 08, an internal entry is applied:

Debit 84, subaccount "Retained earnings formed", Credit 84, subaccount "Retained earnings used".

If the balance of the sub-account “Retained earnings generated” becomes debit, then this indicates that the organization allows the immobilization of its own and borrowed funds, i.e. uses current assets as a source of acquisition of fixed assets.

Thus, if the decision on the distribution of profits was made at the annual general meeting of shareholders (participants), which was held within the time limits established by law, the corresponding use of profits in the debit of account 84 can be reflected in accounting records.

The procedure for submitting financial statements

Approval of the annual financial statements falls within the competence of the annual general meeting of shareholders (regular general meeting of participants). Based on the results of the approval of the annual financial statements, the organization must reflect the distribution of profits in December records, including the payment of income to the founders (participants) in the debit of account 84 in correspondence with the account 75 or 70. Thus, in the annual balance sheet in the “Capital and reserves” section, the indicator “Retained earnings (uncovered loss)” will not correspond to the amount of net profit received for the reporting year.

In paragraph 2 of Art. 15 of the Federal Law of November 21, 1996 No. 129-FZ “On Accounting” (with subsequent amendments and additions) establishes that annual financial statements must be submitted in authorized bodies within 90 days of the end of the year. Thus, it turns out that the reporting must be approved by the general meeting no later than 90 days after the end of the year.

However, in accordance with paragraph 1 of Art. 47 of Law No. 208-FZ, the annual general meeting of shareholders is held within the time limits established by the company's charter, but not earlier than two months and not later than six months after the end of the financial year; the next general meeting of participants of the LLC is held in accordance with Art. 34 of Law No. 14-FZ not earlier than two months and not later than four months after the end of the financial year. Consequently, a situation is possible in which the financial statements are approved in compliance with the deadlines established by these Laws, and the submission of reports is in violation of the deadline provided for in paragraph 2 of Art. 15 of the Law "On Accounting". At the same time, according to paragraph 2 of Art. 15 of this Law, the submitted annual financial statements must be approved in the manner prescribed by the constituent documents of the organization.

Of course, it would be optimal to hold a general meeting before the expiration of 90 days after the end of the year. However, if the organization still failed to approve the reporting within this period, then it has the right to submit it without taking into account the consideration of the results of activities for the reporting year. It is this position that the Ministry of Finance of Russia adheres to, by order of which dated December 31, 2004 No. 135n “On Amending the Instructions on the Procedure for Compiling and Presenting Accounting Statements (Order No. 67n dated July 22, 03)” clause 14 was excluded from the Instructions, where it was said about reporting, taking into account the mandatory review of the organization's activities for the reporting year.

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 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 holders valuable papers.

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

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

What to do in a situation where, 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 management company of the 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. "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, at the height of the reporting period, new member. 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 claim for 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 is worth noting that the protocol indicates only the total amount of profit that is payable.

In the future, the calculation of income is carried out on an individual basis with the execution of a separate document, for example, accounting statement. The payment process itself is carried out using a payment order, an 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.

Sometimes owners decide to create so-called "funds" of accumulation and consumption. However, such funds are not mentioned either in the Laws on JSC and LLC, or in the current regulations by bookkeeping. According to the rules for accounting for retained earnings, it is simply impossible to direct it to the acquisition of assets or to pay for any expenses due to the very nature of the concept of "net profit". Retained earnings can only be distributed as dividends.

From a letter to the editor

I ask you to help understand this situation: by the decision of the founder of the enterprise for the distribution of net profit of the year before last, it was decided to replenish: the loss coverage fund; production development fund; fund social benefits. This year, the founder wants to direct part of the funds from the funds to pay dividends. Is it legally possible?

Expert opinion

The reserve fund can be used to cover losses if the owners decide to do so.

The reserve fund is created by posting: debit of account 84 "Retained earnings (uncovered loss)" - credit of account 82 "Reserve capital". And it is reflected in the balance sheet in line 1360 in section III "Capital and reserves".

Thus, from the point of view, the creation of a reserve fund leads to a redistribution of amounts within section III balance, but part of retained earnings is "shifted" to another item of capital.

Only retained earnings can be distributed.

Sometimes owners want to use retained earnings to purchase new fixed assets, to pay bonuses to employees, or to charity. Usually in such cases they decide to create so-called "funds" of accumulation and consumption.

Such funds are not mentioned either in the JSC and LLC Laws, or in the current accounting regulations. Thus, no funds in accounting can be created. The concept of funds at the expense of profit came to us from Soviet accounting. Soviet enterprises created funds for the development of production, the funds of which were directed to the purchase of new equipment. The Instructions to the Chart of Accounts of 1985 (which has ceased to be valid) states that the funds of such a fund intended for the purchase of equipment must be kept in a bank in a special account. That is, Soviet funds at the expense of profits are real money that was allocated for specific purposes and kept in separate accounts in a credit institution, and then spent for its intended purpose.

Now everything is different. Even if the owners decide to “direct net profit to the acquisition of fixed assets,” no one credits the money intended for its purchase to some special account. That is, only the word has been preserved from the Soviet concept of "funds", while the accounting rules have changed radically.

For example, the acquisition by an organization of fixed assets leads to a redistribution of amounts within the asset balance. The organization will have less money (the balance on line 1250 of the balance will decrease), but (the balance on line 1150 will increase). In this case, the accountant should record both the expenses and the acquisition of assets in the same way as ordinary business transactions. At the same time, both the total assets of the balance sheet and capital will remain unchanged. That is, it is simply impossible to direct retained earnings to acquire assets or pay any expenses due to the very nature of the concept of “net profit”.

note

What is profit, what is capital - not "live" money, but a calculated value - the arithmetic difference between assets and liabilities (income and expenses). Conventionally, we can say that profit is “spent” when its value in the balance sheet decreases. This happens only when paying dividends and creating a reserve fund.

True, the current Chart of Accounts states that an organization can (but is not obliged) to separate “used” and “unused” retained earnings in analytical accounting. For example, you can open 84 sub-accounts for the account “Created Consumption Fund” and “Used Consumption Fund”. And when spending money for the purposes specified in the decision of the participants (for example, when purchasing an OS), make a posting: debit 84, subaccount "Created Consumption Fund", - credit 84, subaccount "Used Consumption Fund". However, from the redistribution of amounts between sub-accounts, the total balance on account 84 "Retained earnings" does not change.

When deciding on the direction of profit for other purposes (not related to the payment of dividends), the general meeting of participants (shareholders) does not create an obligation, but only the right of the company to incur expenses that are offset by this profit. Simply put, the public may, but is not required to, bear these costs.

Based on the materials of the webinar "All about dividends for an accountant and director", author - Evgeny Naidenov, head of the tax audit department of Business Audit LLC, teacher at the Potential training center.

Director

Dividends are any income received by a shareholder or participant from an organization in the distribution of profit remaining after tax on shares owned by this participant, in proportion to the participants' shares in the authorized capital of the paid organization (clause 1, article 43 of the Tax Code of the Russian Federation).

Important: Dividends are part of the net profit left after paying all taxes. If we are talking about the general taxation regime, then this is the net profit that remains after paying income tax. If we are talking about the simplified tax system, then this is the profit remaining after paying taxes on the simplified tax system. If this is UTII, then this is the net profit that remains after paying a single tax on imputed income.

How is profit calculated?

Net profit is the profit left after paying all taxes. All expenses are deducted from all income of the enterprise, the financial result is obtained and profit remains, it is the basis for calculating the tax. The amount of tax that must be transferred is determined, and the tax itself is deducted from the profit based on the results of activities. There remains a cleared amount that is at the disposal of the company, and the company has the right to dispose of the net profit at its discretion. That is, it can either use it for business development, or pay dividends.

Where is the net profit indicator recorded in the financial statements?

- In section 3 of the balance sheet “Capital and reserves”, profit appears in the line “retained earnings” or “uncovered loss”. The balance sheet shows all profits as of a certain accounting date. This line takes into account the amount of net profit not only for the last reporting period, but also for previous years, if it remained and was not distributed at the time.

- If you need to find out the amount of net profit for the reporting period, then refer to the income statement. Here, the net profit indicator for the reporting period (for example, for the reporting year) is shown on the line “Net profit or loss”.

If the company does not have a net profit, then there can be no talk of paying dividends until the loss received by the company is covered by the profit received in subsequent periods.

What if errors were made in calculating profit?

For accounting and tax legislation, the company, represented by the accounting department and the chief accountant, must make changes and correct the financial statements so that the net profit indicator is true.

- If, as a result of errors and violations, the net profit indicator was underestimated, then, after making changes to the balance sheet and reporting, additional net profit should appear, which is also distributed among the founders according to their decision.

- If, as a result of errors and violations, the amount of net profit was overestimated and dividends were already paid on the basis of incorrect information, then after correcting the errors, the net profit indicator will be slightly underestimated. As a result, a situation will arise when the founders initially distributed more net profit to themselves. There is nothing to worry about, because after a certain period, the net profit will be smaller, and the participants will distribute the profit in a smaller amount.

If errors were made in accounting and then corrected, then the founders, participants will still receive the due amounts of dividends. But the process can take time.

Net assets

This is the difference between the company's assets and its debts (liabilities). The difference between assets and liabilities is recorded in the final line 3 of the balance sheet of the enterprise. Conditions:

In accordance with the law on LLC, the amount of net assets must necessarily exceed the amount of the authorized capital. If the amount of net assets is less than the amount of the authorized capital, then the company is obliged to reduce it to the amount of net assets after the time has elapsed. This entails difficulties and risks for the company, because many small businesses have the minimum amount of authorized capital allowed by law: 10 thousand rubles for an LLC. If a situation arises in which the amount of net assets is less than this threshold amount, then, on the one hand, the company is obliged to reduce the amount of the authorized capital, and on the other hand, the amount of the authorized capital cannot be less than 10 thousand rubles.
If the company allows such a situation for a long time, then it falls under sanctions up to liquidation. As for the payment of dividends, in accordance with Article 29 of the Law on LLC and Article 43 of the Law on JSC, a decision on the payment of dividends cannot be made if at that moment the value of the net assets of the company is less than its authorized capital. Therefore, it is important to follow the size of net assets.
The payment of dividends is not allowed until the authorized capital is paid in full.

The dividend payment procedure is regulated by corporate legislation and the company's charter. The classic option is the annual payment of dividends at the end of the financial year, when the financial statements for the past year are prepared. In accordance with the law on LLC, the company must hold a regular annual meeting of participants, shareholders at the end of the year, at which the financial statements, the amount of net profit are approved, and then the company's owners decide on the distribution of net profit.

How will the net profit be distributed? This issue is within the competence of the general meeting of participants. The state does not interfere in the distribution processes, it controls the procedure in terms of taxation, because at the time of the decision to pay dividends, there is the tax base by personal income tax.

Important:

The results of the general meeting of shareholders or participants must be documented: they pay attention to this when holding audits. Often decisions on the distribution of dividends and net profit are made orally and on this basis the money is paid. Subsequently, this can lead to serious problems: if one of the owners, participants or shareholders considers that he has been deprived, he has the right to go to court to restore his violated rights. If there is no document drawn up on paper, then it will be difficult for any of the parties to the conflict to refer to it.
In the absence of the minutes of the general meeting, the accounting department does not have the right to reflect business transactions, make postings for the accrual and payment of dividends. In accordance with the law on accounting 402-FZ, the facts of economic activity are recorded in accounting only on the basis of primary documents. V this case primary document is the decision of the general meeting on the payment of dividends, drawn up on paper.

Regularity of dividend payments

Article 29 of the LLC Law and Article 42 of the JSC Law provide that a company has the right to pay dividends quarterly, once every six months and annually.

If members of the company, owners or shareholders want to distribute dividends more often than once a year, then they need to reread the articles of association and find the section that says in what order and how often dividends can be paid. Often the texts of statutes are formed on the basis of general principles and available blanks: when creating a company, few people think about how often they would like to distribute dividends. Therefore, if the charter states that dividends are distributed annually, then before deciding to change the frequency, it is necessary to amend the charter.

The dividend payment period is no more than 60 days from the date of the decision on payment. After its expiration, a shareholder who has not received dividends may regard this fact as a violation of their rights. He can go to court or otherwise influence the company, so it is also important to follow the terms of payment.

Often, enterprises, drawing up the minutes of the general meeting, where decisions are made on the distribution of net profit and on payment, immediately fix the payment schedule:

- to make it clear how the amounts will be paid;

- in the case of small businesses, the number of owners is small. Usually they are all physically present at the general meeting, where decisions are made on the distribution of net profit, payment of dividends and sign the minutes. If the text contains a schedule of dividend payments, and if part of them is paid later than in 60 days, then having the signatures of the owners, it will subsequently be difficult for any of the shareholders to make claims regarding the timing of payment.

Forms of payment of dividends from the point of view of the director

- The classic option is payment in cash, cash or non-cash. If this moment is important for owners, shareholders and participants, then it will not be superfluous to indicate in the minutes of the general meeting in what form and how dividends will be paid.

For owners who are used to receiving cash dividends from the cash register, there are subtleties and limitations. Our legislation, documents of the Central Bank, which regulate cash transactions, it is not allowed to pay dividends at the expense of cash proceeds received by the cash desk of the enterprise. Withdrawal can be carried out only at the expense of funds that were specially received from the bank or at the expense of other amounts that were returned to the company's cash desk in various ways.

– Payment not in cash, but in the form of property owned by the company (in the form of fixed assets, materials, finished products, accounts receivable, securities, claims). That is, any assets that are on the balance sheet of the enterprise and are recorded in the financial statements approved by the participants.

This issue is quite troublesome and more expensive in terms of taxation. Because, according to the Ministry of Finance and the Federal Tax Service, the payment of dividends by any property other than money is recognized as a sale. From the point of view of Article 39 of the Tax Code, a change in ownership of goods, works, services is recognized as a sale. Therefore, if dividends are paid, for example, by fixed assets, then the original owner was an enterprise, and an individual becomes the new owner. The status of this property changes, there is a sale and, as a result, the taxable base. If we are talking about the general taxation regime, then there is VAT and income tax. If we are talking about a simplified taxation system, then additional income appears here.

If we are talking about UTII, then the situation is more subtle. Depending on the type of activity carried out by an enterprise transferred to UTII, most likely, a property transfer operation will not fall under this type. That is, under a transaction for the alienation of property and the transfer of fixed assets, the enterprise will not be on UTII, but on a general taxation regime or on a simplified one, if there is permission to use the simplified tax system.

Thus, before making a decision on the payment of dividends, in cash, be sure to clarify this issue with your accounting department, auditors or lawyers so that you understand what such a dividend payment will cost the company.

Distribution of net profit of previous years and payment of dividends from it

There are no restrictions and problems for the company, because all net profit can be distributed in accordance with the decisions of the owners. It is advisable to note this moment in the minutes of the general meeting, at which a decision is made on the distribution and payment of dividends. It is better to state directly: “according to the results of a certain reporting period, for 2019, such and such net profit was received. As of the reporting date, December 31, 2019, the enterprise also has retained earnings of previous years in such and such an amount. A decision is made to distribute all net profit, which is reflected in the balance sheet: that which was received during the reporting period, for 2019, and that which remained at the disposal of the enterprise from previous years. The figures are indicated directly and reflect what proportion of net profit is directed to the payment of dividends.

Accountant

The first thing to do Chief Accountant- reflect the company's debt to pay dividends to its shareholders, participants or owners. The amounts must be calculated and charged for each participant. Wiring depends on the situation:

the participant is employed in the company - Dt 84 Kt 70;
the participant does not work in the organization or is a legal entity - Dt 84 Kt 75.

The entry reflects the accrual of dividends based on the decision of the general meeting. Without a paper version of the minutes of the general meeting, on which the decision on the distribution of dividends is fixed, this entry cannot be made. Therefore, the posting must be generated on the date of signing the corresponding payment protocol.

After the appearance of the posting in the balance sheet of the enterprise, accounts payable in liabilities to the participants on the payment of dividends. The turnover on the debit of account 84 reduces the net retained earnings, which is recorded in section 3 "Balance". The source of dividend payment is net profit, economic sense and legal nature this operation is fully consistent with reality and does not contradict the law.

Forms of payment of dividends from the point of view of an accountant

— Consider the classic option when dividends are paid in cash.

Dt 75 (70) is credited with personal income tax account 68, because in this case the enterprise that is the source of dividend payment is recognized as a tax agent in accordance with Article 226 of the Tax Code. The tax agent is obliged to withhold and transfer to the budget the withheld amount of personal income tax.

In accordance with Article 224 of the Tax Code, the tax rate on income received by an individual in the form of dividends is set at 13% for residents and 15% for non-residents of the Russian Federation. Of the total amount due to receive dividends, 13% must be given to the state in the form of tax - this operation is reflected in the first entry.

The remaining amount, 87%, is paid to the shareholder, participant, owner of the enterprise in cash non-cash or through the cashier. Therefore, the posting is formed with correspondence: Dt 75 (70) and Kt 50 (51).

After the first two postings are formed, the payables for the payment of dividends on account 75 or 70 are completely closed. After paying the tax and transferring it to the budget (the third entry is Dt 68.NDFL, Kt 50 (51)), the company fulfilled all obligations to the owners of the company and to the state in terms of withholding and transferring the amount of income tax.

— Another option for paying dividends is a payment at the expense of the property of the enterprise.. If the general meeting decided to pay dividends by transferring fixed assets or materials to shareholders, then the disposal of these assets should be reflected through 91 accounts. We reflect these operations as follows:

1) Dt 75 (70), Kt 91.1. Correspondence is made here for the cost of fixed assets, materials, including VAT. VAT is taken into account in cases where property is paid by enterprises that apply the general taxation regime and by enterprises that pay single tax on imputed income.

2) Dt 91.2, Kt 68 VAT in the amount of VAT is reflected if the general taxation regime and UTII are applied.

3) Dt 91.2, Kt 01 or 10 accounts. This reflects the book value of materials or residual value fixed assets.

Why 91 accounts? These are other income and expenses of the enterprise, because the disposal of fixed assets, materials, that is, assets not intended for further sale, is carried out through the 91st accounts, and not through the 90th.

If dividends are paid by the transfer of goods or finished products, then the disposal of these assets should be reflected in the sales accounts. Therefore, in this case, the 90th accounts will be involved. The last three correspondences reflect this situation.

Dt 75.2 (70), Kt 90.1 reflects the cost of goods and finished products, including VAT.
The second correspondence is the amount of VAT, Dt 90.3, Kt 68 VAT.

VAT arises if the general taxation regime is applied. It may occur when paying dividends at an enterprise that uses UTII, depending on what is being transferred. If goods intended for retail sale are transferred, then VAT does not arise, because such a transfer falls under the definition of retail sale, will be included in retail turnover and will fall into the type of activity that the enterprise uses on UTII.

Write-off book value goods or finished products: Dt 90.2, Kt 41 or 43 accounts.

When dividends are paid in non-monetary form, the company (the source of the payment) still has the obligation to withhold tax, because it is a tax agent. On the other hand, the company does not physical ability do it. If the payment is made in kind, then there is no money. It is impossible to recover these amounts in another way, especially if the founder, shareholder or owner is not an employee of the company.

At the source of payments - enterprises (at tax agent) there is no way to keep income tax from such dividends, therefore the company is obliged to send a notice within a month of the impossibility of withholding income tax in tax office at the place of registration of the individual to whom the dividends are paid, and at the place own registration. In this situation, there will be no claims against the enterprise. Having received such information, the tax authorities will independently contact the individual and demand payment of the amount of tax due.

If a company pays dividends in cash (in cash or non-cash form), then she has an obligation to calculate the tax, withhold it, transfer it to the budget, and at the end of the year, by March 1, submit information on the amounts paid in favor of individuals in the form of 2 personal income tax, where you must also indicate the amount of dividends paid. personal income tax rate is 13%, no additional taxes need to be paid on these amounts.

Contributions to off-budget funds, in particular in Pension Fund and in the FSS, they are not withheld from dividends paid. Since, in accordance with 212-FZ, the basis for calculating contributions, in particular to the pension fund, are:

— payments within the framework of labor relations,

- payments for GPC agreements providing for the performance of work or the provision of services (contract and contract paid provision services).

The chief accountant must be able to clearly identify payments to employees of the company. If money is paid on the basis of an employment contract and a person receives it for the performance of labor duties, then these are payments within the framework of labor relations. They are subject to contributions to off-budget funds.

Dividends cannot be classified as such payments, because they are paid to individuals, regardless of how well or poorly they worked. A dividend payment is a distribution of the net profit that remains after paying all taxes. Even those owners of the company, shareholders and participants who are employees and often managers of the company, receive dividends not for the results of their work, but for the result of the entire company, because:

1) profit remained at the disposal of the company

2) net profit is the result of the activities of not only the head

This means that the payment of dividends is not a payment within the framework of an employment relationship. That is why dividends are not subject to contributions to off-budget funds. The FSS mentioned this several times in letters.

How much taxes do you need to pay before you get a net profit?

Here you can compare different modes taxation. Under the general taxation regime, the income tax rate is 20% of the profit received by the company as a whole from financial and economic activities. Compare this, for example, with the rate provided for the simplified tax system with the object of taxation income minus expenses. The general rate for all is 15%. The price of dividends in the first and second cases is different, because in order to distribute dividends under the general taxation regime, you need to pay 20% to the state, and being on a simplified tax system - only 15%.

If we talk about UTII, it is difficult to say how much interest you need to pay in order to distribute dividends, because the amount of UTII tax does not depend on revenue, income, expenses, but depends on financial result. Knowing the size of this tax, seeing the result of financial and economic activity, it is also possible to calculate the tax burden. It will not exceed the amounts provided for the general taxation regime.

Thus, if a company is on special tax regimes(STS, UTII), the tax burden when paying dividends is significantly lower than for situations where the company is on the general taxation regime.

Periodicity of dividend payment

Russian corporate legislation provides for several options for paying dividends: quarterly, semiannually, and at the end of the year. If the leaders of your company are interested in the option in which dividends will be paid quarterly, then the chief accountant must definitely warn them about the risks that arise in connection with this.

1) The charter should provide for the quarterly distribution of profits and the payment of dividends. Each fact of the distribution of net profit and the direction for the payment of dividends must be recorded and recorded on paper, there must be a fixed decision of the general meeting.

2) Recall that dividends are the distribution of net profit remaining after paying all taxes. With a quarterly payment, this situation may arise. According to the results of the first quarter, the company had a net profit distributed through dividends. According to the results of the first half of the year, the company still has profit, and it is also distributed through dividends. Following the results of 9 months, the company again had a net profit, the company is working with a plus and feels quite confident, therefore, according to the results of this period, dividends are distributed in the same way.

But if at the end of the reporting period a loss is recorded at the enterprise, then the payments that were made during the year, following the results of the first quarter, six months and 9 months, will be reclassified tax authorities in payments from net income. They will need to pay not only personal income tax at a rate of 13%, but also a fee sy contributions to off-budget funds at an aggregate rate of 30%, because at the end of the year there was a loss, and the amounts paid cannot be qualified as dividends.

The accounting department should voice this idea to shareholders so that they understand that if they want to pay themselves dividends more often than once a year, then they need to ensure that the company ends up with a profit every year. Otherwise, there will be an additional tax burden on the company and directly on the shareholders.

Since these payments will be reclassified from dividends to payments from net profit, personal income tax can be paid at a rate of 13%. At the same time, the already paid 9% of the dividends most likely will not be able to be offset against the payment of 13%, because. it different CSCs. A problem arises: who should be responsible for the return of the paid 9% from dividends? On the one hand, the taxpayer is an individual who receives dividends. If the shareholder of the company is an employee of our company, then this work can be shifted to the accounting department, although this is quite troublesome. But if the shareholder and participant of the company is an individual who is not a member of our company in labor relations, then the enterprise has no opportunity, grounds and rights to engage in the 9% return procedure. As a result, a person is left alone with the tax authorities. He will have to interact with them himself, to return income tax.

If the shareholder who received dividends from us, which were later reclassified into payments from net profit, is not an employee of the company, then we cannot withhold 13% from him, and the enterprise, as a source of payment, is obliged, under Article 226 of the Tax Code, to submit a notice of the impossibility to withhold income tax to the tax office, and the KO will communicate directly with this individual.

3) Since the net profit that the enterprise has left is the property of this company and the property of shareholders, the shareholders, participants, owners of the enterprise can dispose of this money in any way they like. In particular, a decision may be made on the disproportionate distribution of net profit. For example, an LLC has two owners, each of whom owns 50%. In this situation, no one can forbid these participants to distribute the net profit not 50/50 in accordance with their shares. They can decide on a non-proportional distribution, for example, in the ratio of 90 and 10. The amount exceeding its share will no longer be recognized as a dividend, because the dividend is recognized as part of the net profit to be distributed in accordance with the share that belongs to the shareholder, owner or participant.

As a result, out of 90 rubles received, 50 rubles will be recognized as dividends, personal income tax at a rate of 13% must be paid on them, and contributions to extra-budgetary funds will not need to be paid: an amount of 40 rubles is recognized as a payment from net profit. Personal income tax is withheld from it at a rate of 13%, and contributions to extra-budgetary funds are paid at an aggregate rate of 30%: there is a letter from the Federal Tax Service on this subject. This is about paying dividends. to an individual, and legal, therefore, the income tax rate of 20% appears, the company burdens the recipient of dividends general regime taxation. Thus, if a shareholder or owner receives a net profit in a larger amount than he is entitled to in accordance with his share, then this will no longer be recognized as a dividend.

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

The procedure for distributing net profit in an LLC

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

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

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

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

Convening and holding a general meeting of participants

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

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

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

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

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

The procedure for paying dividends is established by the charter of the company or is prescribed directly in the minutes of the general meeting of participants in the company. The LLC Law does not define the form in which dividends are paid. As shows arbitrage practice, in addition to monetary form, dividends can also be paid in non-monetary form, for example, by transferring finished products, goods, and property rights subject to valuation to participants in the company (see Resolution of the Federal Arbitration Court of the Volga-Vyatka District of 04.04.2012 in case No. A82-11199 / 2010, Resolution of the Federal Arbitration Court of the East Siberian District of March 4, 2011 in case No. A33-11998 / 2009).

If declared dividends are not paid when due

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

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

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

In addition to the requirement to pay dividends, the participant is also entitled to receive interest from the company in accordance with Art. 395 of the Civil Code of the Russian Federation. This is confirmed judicial practice(see Ruling of the Arbitration Court Central District dated 04/03/2017 No. F10-979 / 2017 in case No. A35-4279 / 2016, Resolution of the Fifth Arbitration Court of Appeal dated 08.08.2017 in case No. A59-6253 / 2016).

Stop Factors for Profit Distribution and Dividend Payments

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

Some jurisprudence

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

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

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

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