Specified in the act on the division of property (200 million rubles.);
According to the tax accounting of the transferring party (ie partnership) (300 million rubles).
We believe that in this case it is necessary to be guided by the value indicated in the act, i.e. 200 million rubles.
First, it is consistent with paragraph 5 of Art. 274 of the Tax Code, in accordance with which non-operating income received in kind is taken into account when determining the tax base based on the transaction price, taking into account the provisions of Art. 40 of the Code (by virtue of paragraph 1 of Article 40 of the Tax Code for the purposes of taxation, the price of goods, works or services specified by the parties to the transaction is accepted).
Secondly, in paragraph 2 of Art. 277 of the Tax Code directly establishes that when liquidating an organization and distributing the property of the liquidating organization, the incomes of taxpayers – shareholders (participants, shareholders) of the liquidated organization are determined on the basis of the market price of the property received by them, at the time of receiving this property, less actually paid by the respective shareholders (participants, shareholders) this organization the value of shares (shares, units).
Thus, since the value of the returned property exceeds the cost of the initial deposit (200 million rubles + 70 million rubles – 300 million rubles), the participant does not have any tax liabilities. In this connection, the participant does not reflect any income or expenses in the tax accounting. 1
The possible tax risks in this situation, in our opinion, are related to the uncertainty in the question of how to assess the participant’s initial contribution to the partnership. The study of the provisions of the legislation, as well as explanations of the Ministry of Finance of Russia and arbitration practice, makes it possible to distinguish two approaches to determining the value of a deposit:
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In the valuation agreed by the participants of the partnership (300 million rubles);
According to the tax accounting of the transferring party (25 million rubles).
The first approach is based on the fact that, in the absence of the procedure for assessing the value of a deposit in Chapter 25 of the RF Tax Code, a participant is guided by the provisions of clause 18 of PBU 20/03 2, according to which contributions made by participants in a simple partnership (joint activity) are taken into account by a comrade who conducts common business, Separate (on a separate balance sheet) in the valuation provided by the contract.
This method of evaluation is also consistent with the provisions of Art. 1042 of the Civil Code of the Russian Federation, which established that a monetary assessment of the contribution of a comrade is made by agreement between the comrades.
According to the second approach, which is recommended by the tax authorities, the transferred property should be valued based on its value according to the participant’s tax records. Their position is based on art. 277 of the Tax Code of the Russian Federation, according to which the property (property rights) received in the form of a contribution (contribution) to the authorized (share) capital of the organization for profit tax purposes is taken at the value (residual value) received as a contribution (contribution) to the charter ( stock) capital of property (property rights). The value (residual value) is determined based on the tax accounting data of the transferring party as of the date of transfer of the ownership right to the said property (property rights), taking into account the additional costs that, with such deposit (contribution), are made by the transferring party, that these expenses are defined as a contribution (contribution) to the authorized (share) capital. If the receiving party cannot document the value of the entered property (property rights) or any part thereof, the value of this property (property rights) or its part is recognized as equal to zero.
In a letter to the Moscow Department of the Ministry of Internal Affairs of the Russian Federation on December 15, 2003 No. 23-10 / 2/69744, it was explained that “the item of fixed assets that is the first comrade’s contribution is estimated in tax accounting at the residual value of this object, account of the transferring party, similar to the procedure established by Clause 1, Article. 277 of the Tax Code for the assessment of property received as a contribution to the authorized capital. ”
In our opinion, this approach is not without grounds, since: