The first months of the year are the time for summing up. It is worth thinking about the fate of retained earnings. Consider who has the right to use it and what you can spend it on.

The final entry in December, the amount of net profit (loss) of the reporting year is written off from account 99 "Profits and losses" to the credit (debit) of account 84 "Retained earnings (uncovered loss)". So, on account 84, after the balance sheet is reformed, a financial result is formed, which will be announced at the general meeting of shareholders (participants). If, as a result, the organization has a debit balance on account 84, this, unfortunately, indicates that the main goal of entrepreneurial activity has not been achieved: the organization has received a loss. If account 84 has a credit balance, this indicates that the organization has retained earnings that can be used.

What is retained earnings?

First, it is part of the capital of the organization. No wonder it is reflected in Sec. III "Capital and reserves" balance sheet. Capital is nothing more than the difference between an organization's assets and its liabilities.

But if assets and liabilities are associated with real objects, then capital is a kind of abstract financial value, which shows from what sources the organization exists: authorized, additional or reserve capital, retained earnings. For example, in the Chart of Accounts for accounting for the financial and economic activities of organizations (hereinafter referred to as the Chart of Accounts), approved by Order of the Ministry of Finance of Russia dated October 31, 2000 N 94n, in the commentary to account 84, retained earnings are directly named as a source of financial support for the production development of the organization.

Accordingly, if the organization's capital contains such a component as retained earnings, this is a very good sign and indicates that the organization earns more than it spends.

Secondly, the credit of account 84 shows the amount of net profit received for the entire period of activity organizations, and not just for the last year. This value represents the final result of the company's activities for the entire time of its existence, and the owners have the right to dispose of this accumulated profit at their discretion.

Thirdly, the credit balance of account 84 indicates that the profit of the organization was not aimed at withdrawing funds from the company's turnover. What this means is explained below.

Who is entitled to use retained earnings

To distribute the earned profit, to decide what expenses should be made at its expense, only the owners of organizations have the right: shareholders or participants. It is not for nothing that accountants among themselves call account 84 "account of the owner." In accordance with the current legislation, the decision on its distribution is made by the general meeting of shareholders (participants) (clause 3, clause 2, article 67.1 of the Civil Code of the Russian Federation, clause 11, clause 1, article 48 of the Law of December 26, 1995 N 208-FZ "On joint-stock companies" (hereinafter referred to as the JSC Law), subclause 7 clause 2 article 33 of the Law of February 8, 1998 N 14-FZ "On Limited Liability Companies" (hereinafter referred to as the LLC Law)).

Accordingly, the accounting decision of the participants (shareholders) will depend on the instructions that they record in the minutes of the general meeting and give to the management of the organization.

However, when making this decision, many, unfortunately, make mistakes. It is the accountant who can suggest the right decision to shareholders and participants. And our task is to help him in this.

What can and should be spent on retained earnings

The procedure for distributing profits is regulated by the Laws on JSC and LLC. As for accounting, what can be spent on retained earnings is said only in the annotation to account 84 in the Chart of Accounts. There is no more mention of how retained earnings can be spent in accounting regulations.

So, let's see what the profit is spent on.

reserve fund

For joint-stock companies, the Law provides duty on the formation of a reserve fund at the expense of net profit. Its size must be at least 5% of the authorized capital of the company (clause 1, article 35 of the JSC Law). They “spend” the fund to cover losses (in most cases), as well as to buy back their own shares and redeem their own bonds (paragraph 3, clause 1, article 35 of the JSC Law).

Limited liability companies, unlike joint-stock companies, can create a reserve fund on a voluntary basis (clause 1, article 30 of the LLC Law). The size of the reserve, the amount of annual deductions to it and the purposes for which the fund can be spent (LLCs usually also use it to cover losses) are prescribed in the company's charter.

The reserve fund is created by posting:

Debit 84 "Retained earnings (uncovered loss)" Credit 82 "Reserve capital".

In the balance sheet, it, like retained earnings, is reflected in sec. III "Capital and reserves" on line 1360. Thus, part of the net profit is actually transferred to another item of capital. But at the same time, the structure of the balance sheet improves, since the owners are actually prohibited from withdrawing funds from the company's turnover (for example, paying dividends) for the amount of the formed fund. It can be said that the reserve fund is a kind of financial safety cushion for organizations.

Dividends

The profit remaining after the formation of the reserve fund, the owners can direct to the payment of dividends. It should be noted that this is the most common way to use profits. The accrual of dividends reduces retained earnings, and their payment leads to a decrease in the organization's assets (money or property).

In accounting, the accrual of dividends will be reflected in the following entry:

Debit 84 "Retained earnings (uncovered loss)" Credit 75 "Settlements with founders".

Payment of dividends money should be reflected in the wiring:

Debit 75 "Settlements with founders" Credit 51 "Settlement accounts".

If the money was previously withdrawn from the current account for issuing it in cash, then the posting will be as follows:

Debit 75 "Settlements with the founders" Credit 50 "Cashier".

Dividends can be paid not only in money, but also in property, because the current legislation does not prohibit this. According to the Federal Tax Service of Russia, when transferring property on account of the payment of dividends, VAT must be charged (Letter of the Federal Tax Service of Russia dated May 15, 2014 N GD-4-3 / [email protected], agreed with the Ministry of Finance of Russia).

It should be noted that there are separate court decisions in which the arbitrators agree that the transfer of property on account of the payment of dividends is not a sale and is not recognized as an object of VAT (Resolution of the Federal Antimonopoly Service of the Urals District of May 23, 2011 in case N A07-14871 / 2010) . Therefore, if an organization does not include in the VAT base the value of property transferred as dividends, then it will most likely have to defend its position in court. But is it worth it? After all, if an organization decides to pay dividends in cash, but it does not have them, then first it sells the property, calculates VAT on its sale, and only then transfers the funds to shareholders (participants). In other words, in any case, in the absence of funds, you will first have to pay VAT and only then - to pay off the owners.

If, however, goods or fixed assets are transferred as dividends, the sale of which is not subject to VAT (for example, land), then it is not necessary to charge VAT.

transfer property on account of repayment of debt on payment of dividends in accounting are reflected as follows:

1) when transferring goods or finished products:

Account correspondence
	90 (sub-account "Revenue")	Recognized revenue from the sale of goods
90-1 (sub-account "VAT")		Reflected VAT
90-2 (sub-account "Cost of sales")	41 "Goods" or 40 "Finished products"	Written off the cost of goods or finished products
	76 (sub-account "Settlements with different debtors and creditors")	The debt to the participant for the payment of dividends was set off

2) when transferring a fixed asset:

Account correspondence
75 (sub-account "Settlements with the founders for the payment of dividends")	91-1 (sub-account "Other income")	Reflected the transfer of fixed assets on account of the payment of dividends
		Reflected VAT
	01 (sub-account "Fixed asset in operation")	Reflected the initial cost of fixed assets (OS)
	01 (sub-account "Retirement of fixed assets")	Amount of accumulated depreciation written off
91-2 (sub-account "Other expenses")	01 (sub-account "Retirement of fixed assets")	Residual value of fixed assets recognized as an expense

Is it legal to use profits in any other way?

Sometimes the owners of the organization make decisions on the payment of bonuses to employees at the expense of profit, material assistance, and the acquisition of fixed assets. Some decide to create so-called consumption and accumulation funds. Is it correct?

First, let's deal with expenses at the expense of profits. First, the JSC and LLC Laws do not provide for any payments from profits to anyone other than the owners. As we have already noted, account 84 "Retained earnings (uncovered loss)" is the account of owners, respectively, only they are entitled to receive dividends.

Secondly, the Ministry of Finance of Russia has repeatedly expressed the opinion that account 84 is not intended to reflect all kinds of social and charitable expenses, payments of material assistance and bonuses (Letters of the Ministry of Finance of Russia dated 19.06.2008 N 07-05-06 / 138, dated 19.12. 2008 N 07-05-06/260 and others).

From the point of view of the financial department, the expenses of the organization for the implementation of sports events, recreation, entertainment, cultural and educational events and other similar events, as well as the transfer of funds (contributions, payments, etc.) related to charitable activities by the organization, are other expenses and should be accounted for under account 91 "Other income and expenses". Only the payment of dividends is not an expense of the organization, any other disposal of assets is an expense of the current period (clause 2 of the Accounting Regulation "Organization's expenses" PBU 10/99, approved by Order of the Ministry of Finance of Russia dated 06.05.1999 N 33n).

Therefore, all kinds of bonuses, material assistance and charity expenses will also affect the net profit of the organization, but only in the period of these expenses. They have nothing to do with last year's net profit.

Thus, all kinds payments from net profit, with the exception of dividends, are illegal.

As for the formation of the consumption fund at the expense of net profit, this is simply an echo of Soviet accounting. Then real money was transferred to the production development funds, which were kept in the bank separately from the organization's funds, and it was with this money that fixed assets were acquired (commentary to account 87 of the Instructions for the application of the Chart of Accounts for accounting of the production and economic activities of associations, enterprises and organizations, approved by the Order of the Ministry of Finance of the USSR dated March 28, 1985 N 40). Today, no one transfers the money intended for the development of production anywhere.

When acquiring fixed assets, organizations simply spend funds from the current account and one asset (money) is exchanged for another (fixed asset). Account 84 in postings is not involved at all. Therefore, if the owners of the organization decide to direct the profit to the development of production, and the accountant makes an entry in the accounting Debit 84, sub-account "Profit for distribution", Credit 84 "Reserved profit", this does not affect the final balance on the credit of account 84.

By and large, this posting only indicates that the owners refused to receive dividends this year and decided not to withdraw funds from the company's turnover. But such a decision will allow the organization to improve the structure of the balance sheet, make its financial position more stable. But since the final balance on the credit of account 84 will not change, nothing prevents the owners of the organization from distributing the profit reflected in the balance sheet as undistributed in the future.

Is it possible to distribute the profits of previous years

Another question that worries both owners and accountants: is it possible to distribute the profits of past years as dividends? The answer is yes. Can. After all, neither tax nor civil legislation contains restrictions on the payment of dividends from the profits of previous years. Therefore, if the organization has "accumulated" the profit of previous years, the general meeting of shareholders (participants) can send it to pay dividends.

Neither the regulatory authorities object to this (clause 1 of the Letter of the Federal Tax Service of Russia dated 05.10.2011 N ED-4-3 / [email protected], Letter of the Ministry of Finance of Russia of March 20, 2012 N 03-03-06 / 1/133), nor the courts (Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation of June 25, 2013 N 18087/12, Decision of the Supreme Arbitration Court of the Russian Federation of November 29, 2012 N VAC-13840 / 12) . The Supreme Arbitration Court of the Russian Federation came to the conclusion that, by their economic nature, net profit and retained earnings are identical, therefore, nothing prevents owners from deciding to pay dividends not only from the net profit of the reporting year, but also from retained earnings of previous years.

The procedure for the distribution of profits in the company is carried out in accordance with Art. 28 Federal Law "On Limited Liability Companies"

Article 28
1. Societies o has the right to make a decision on the distribution of its net profit quarterly, once every six months or once a year between members of the society. Decision on determining the part of the company's profit distributed among the participants of the company, adopted by the general meeting of the company's members.

2. The part of the company's profit intended for distribution among its participants shall be distributed in proportion to their shares in the authorized capital of the company. The company's charter upon its establishment or by amending the company's charter by decision of the general meeting of the company's participants, adopted by all participants of the company unanimously, may establish a different procedure for the distribution of profits between the participants of the company. Change and exclusion of the provisions of the charter of the company, establishing such a procedure, are carried out by the decision of the general meeting of participants in the company, adopted by all participants of the company unanimously.

3. The term and procedure for payment of a part of the distributed profit of the company are determined by the charter of the company or the decision of the general meeting of the company's participants on the distribution of profit between them. The term for payment of a part of the distributed profit of the company should not exceed sixty days from the date of the decision on the distribution of profits between the participants of the company. If the period for payment of a part of the distributed profit of the company is not determined by the charter or decision of the general meeting of the company's participants on the distribution of profits between them, the specified period is considered equal to sixty days from the date of the decision on the distribution of profits between the participants of the company. (Clause 3 was introduced by the Federal Law dated 12/28/2010 N 409-FZ

If the deadline for filing claims cannot be determined, these provisions apply to claims that arose no later than three years before the date of entry into force of Federal Law No. 409-FZ of December 28, 2010. Within six months from the date of entry into force of the said Law, a person whose term for making a claim for payment of a part of the distributed profit of a business entity has expired before the date of entry into force of Federal Law No. 409-FZ of 28.12. companies accrued within three years prior to the specified date. If such a person has not exercised this right, the corresponding part of the distributed profit shall be restored as part of the undistributed profit of the business entity.

4. If during the period of payment of a part of the distributed profit of the company, determined in accordance with the rules of paragraph 3 of this article, a part of the distributed profit is not paid to the participant of the company, he has the right to apply within three years after the expiration of the specified period to the company with a claim for payment corresponding part of the profit. The charter of the company may provide for a longer period for filing this claim, while the specified period cannot exceed five years from the date of expiration of the period for payment of a part of the distributed profit of the company, determined in accordance with the rules of paragraph 3 of this article. The period for filing a claim for payment part of the distributed profit of the company in case of missing the specified period is not subject to restoration, except for the case if the participant of the company did not file this claim under the influence of violence or threat.

Thus, the profit is distributed only by decision of the general meeting of participants. While you are a member of the company, you have the right to demand the convocation of the GMS if the GMS decides on the distribution of the company's profits at the time you are among the participants in the company, in which case the company is obliged to pay you the distributed profit within 60 days.

Without OSU, no distribution of profits takes place.

Accordingly, if you sold your share to another person, then it is the other person who can demand the convocation of the GMS and the distribution of profits. As a member of an LLC with a certain share, the new owner of the share will be entitled to distributed profits.

You cannot demand payment of “your” share of retained earnings on the sole basis that you are alienating your share to a third party.

The norms of the current Federal Law of February 8, 1998 No. 14-FZ “On Limited Liability Companies” (hereinafter referred to as the LLC Law) entitle participants 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 the company, from the point of view of the Tax Code of the Russian Federation, are synonymous (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 of the Federal Law of December 26, 1995 No. 208-FZ “On Joint Stock Companies”, according to which the source of payment of dividends is the profit of the company after taxation, determined according to the accounting (financial) statements of the company. When determining net profit on the basis of 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 accordance with the general procedure 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 court practice shows, 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 Decree 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).

“The 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 by judicial practice (see Resolution of the Arbitration Court of the Central District dated 04/03/2017 No. F10-979/2017 in case No. А35-4279/2016, Resolution of the Fifth Arbitration Court of Appeal dated 08.08.2017 in case No. А59-6253/2016).

Stop Factors for Profit Distribution and Dividend Payments

The LLC Law establishes a list of cases when a 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 until the authorized capital is paid in full, before the payment of the actual value of the share or part 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 net assets of the company 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 Law on LLC, a company member 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 of state registration of the heir's right to inherited 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".

The article analyzes and summarizes non-standard situations that arise in practice in the distribution of profits in cases of payment of dividends (including intermediate ones) and changes in the composition of participants and their shares in the authorized capital. Specific examples show the solution of complex problems from the practice of tax consulting.

In some cases, in the absence of clear legal regulation of non-standard situations, the procedure for solving problems given in the article is based on the recommendations of the financial and tax departments.

The distribution of profits based on the results of financial and economic activities in an LLC is within the competence of the general meeting of participants. Recall that a limited liability company is a company created by one or more persons, the authorized capital of which is divided into shares. The participants of the company bear the risks of losses associated with the activities of the company, within the value of their shares, and upon receipt of profit, the general meeting of the participants of the company makes a decision on the distribution of net profit in accordance with the adopted policy of the company.

The main documents regulating the activities of limited liability companies, which are the Civil Code of the Russian Federation (Articles 87–94) and Federal Law No. 14-FZ of February 8, 1998 (as amended on November 30, 2011) “On Limited Liability Companies” (hereinafter - Federal Law No. 14-FZ), it is determined that net profit can be directed:

To replenish the company's funds, production development and the creation of reserves;

Social programs and bonuses for employees;

Payment of part of the profit to the participants of the company.

You should immediately pay attention to two features related to the distribution of net profit in an LLC.

First of all, the term "dividends" for LLC is not given in the regulatory documents. In relation to such societies, it is correct to speak of profit distribution according to Art. 91 of the Civil Code of the Russian Federation, art. 28, 29 of Federal Law No. 14-FZ. However, the term "dividends" has become widespread in practice, not only in relation to joint-stock companies, but to limited liability companies. Therefore, considering only the solution of practical situations, we will adhere to this generally accepted term.

Secondly, as a general rule, the announcement of the size of the annual income of the company's participants (dividends) based on the results of activities for the year refers to events after the reporting date (paragraph 3 of PBU 7/98), and in the reporting period for which net profit is distributed, no accounting entries are made . An exception to this rule is when the goals for which the net profit should be directed and the conditions for how the net profit is distributed are indicated directly in the charter of the company: once a quarter, once a half year or once a year. The payment of interim dividends is just such a case. Therefore, the accountant has every right, on the date of the decision of the general meeting of participants on the payment of part of the net profit (subclause 7, clause 2, article 33 of Federal Law No. 14-FZ), to reflect the accrual of dividends for the first quarter, six months, nine months, using the account retained earnings of the reporting year.

Having determined the general rules, regulations and features of determining the income of LLC participants, let's move on to the analysis of specific situations.

Situation 1

The founders of Triumph LLC with an authorized capital of 250 thousand rubles. are individuals: the first participant has a 24% share in the authorized capital, the second participant (non-resident) - 25%, and the third participant - 51% of the share in the authorized capital.

Is it possible to distribute the profit received at the end of 2011 in the amount of 1 million rubles. disproportionately to their shares, for example, 30% for the first and second participants and 40% for the third, if such a decision was made by all participants at the general meeting? What are the tax consequences of such a decision?

In accordance with paragraph 2 of Art. 33 of Federal Law No. 14-FZ, making decisions on the distribution of the company's net profit is the exclusive competence of the general meeting of participants. Moreover, paragraph 2 of Art. 28 of Federal Law No. 14-FZ expressly allows the right of organizations established in the form of an LLC to establish a special procedure for distributing profits - disproportionately shares in the authorized capital of the company.

Note! The procedure for distributing profits can be changed with the consent of all participants in the company and when changes are made to the relevant sections of the company's charter. No other procedure is provided for by the current legislation of the Russian Federation.

If the decision on the distribution of profits disproportionately to the shares of participants is made at the general meeting, and no changes are made to the constituent documents, another problem may arise.

For the income of individuals - participants in an LLC, received by them during the distribution of profits, preferential tax rates for personal income tax are legally established. Yes, pp. 3, 4 art. 224 of the Tax Code of the Russian Federation provides for rates of 9% for individuals who are tax residents of the Russian Federation, and 15% for individuals who are not tax residents of the Russian Federation.

In the event that at the end of the year a decision was made to distribute profits disproportionately to the shares of participants, for example, as shown in Table. 1, the application of a preferential personal income tax rate may cause disagreements with inspection and regulatory organizations.

Table 1. Profit distribution among LLC participants
LLC member	By decision of the meeting of participants	Within the share of the participant in the authorized capital	Deviation
Total

Thus, according to the Russian Ministry of Finance, part of the net profit distributed among participants disproportionately to their shares is not recognized as a dividend for tax purposes. Accordingly, these payments are taxed at the general rate for both legal entities and individuals (letters dated June 24, 2008 No. 03-03-06/1/366, January 30, 2006 No. 03-03-04/1/65).

An essentially similar position was expressed by the Federal Antimonopoly Service of the North-Western District when considering disputes related to the taxation of personal income tax payments in the form of dividends (Resolutions of June 27, 2011 No. A13-2088 / 2010, January 12, 2006 No. A44-2409 / 2005-7).

In other words, according to the opinion of the financial and judicial authorities, the overpaid part of the net profit does not meet the criteria of a dividend and a preferential rate (9 or 15%) cannot be applied to it.

Note! The official opinion boils down to the fact that it is necessary to tax at a preferential rate (in particular, at rates of 9 or 15%) only that part of the distributed profit that is proportional to the size of the share. The remainder must be taxed in the general order.

For the analyzed situation, a preferential rate of 9% should be applied to the income of the first participant within its share, that is, to the amount of 240 thousand rubles, 13% - to income in excess of its share - 60 thousand rubles.

For the second participant - a non-resident, a preferential rate of 15% is applied to the tax base of 250 thousand rubles, 30% - to income in the amount of 50 thousand rubles.

For the third participant, a preferential rate of 9% is applied to the entire amount of income.

Summarizing the above, it can be recommended in this situation, before making changes to the constituent documents, to distribute the net profit of the company at the end of the calendar year according to the decision of the general meeting of participants, and when taxing "dividends" to use a preferential personal income tax rate to that part of the income that is distributed in proportion to their shares in authorized capital of the company.

But you can do otherwise. When accruing income, apply preferential rates to the entire amount of income of participants in accordance with the decision of the general meeting, that is, disproportionately to their shares in the authorized capital, and pay income to participants after registration of changes in the constituent documents. After all, it is necessary to withhold tax on income (dividends) when they are paid (clause 2 of article 214, clause 4 of article 226, clause 2 of article 275, clause 4 of article 287 of the Tax Code of the Russian Federation).

In the event that the procedure for distributing net profit is not only changed with the consent of all participants in the company, but is also registered by amending the relevant sections of the company's charter, the participants' income (dividends) are taxed at preferential rates.

Situation 2

Let's change the conditions of the previous situation. Members of the company - individuals and residents of the Russian Federation - were accrued and paid dividends based on the results of I quarter and half year of 2011 (Table 2). In December (10.12.2011) the third participant sold a part of his share in the authorized capital in the amount of 20% to a new participant and instead of 51% became the owner of a share of 31%. The composition of the participants has changed, about which an entry was made in the Unified State Register of Legal Entities. Is it possible to distribute the annual profit taking into account the time during which the fourth participant was actually a participant in the company? Is such a decision legal if it is taken by a majority of votes at the general meeting of participants?

In accordance with Part 1 of Art. 28 of Federal Law No. 14-FZ, a company has the right to make a decision on the distribution of its net profit among the participants of the company on a quarterly basis, once every six months or once a year. The decision to determine the part of the company's profit to be distributed among the company's participants is made by the general meeting of the company's participants.

In our opinion, the issue of distribution of profit at the end of the year between the participants in the case when changes in the charter were registered in December 2011, and interim dividends were distributed based on the results of the 1st and 2nd quarters, in our opinion, can be resolved as follows.

For joint-stock companies, there are the concepts of "interim dividend" and "final dividend", which are determined on the basis of the final profit result for the past calendar year.

In essence, the interim dividend is in the nature of an advance payment, the amount of which is taken into account when declaring the final dividend. When paying the final dividend, its size is determined in the total amount for the year, taking into account advance payments of interim dividends.

Note! Although the concept of a dividend refers to a portion of net profit in joint-stock companies, a substantially similar approach can be applied to the distribution of net profit among LLC participants.

In other words, in intermediate periods, for example, based on the results of the first quarter, half a year, advance payments are accrued, and the final amount of dividends or part of net profit in limited liability companies is determined at the end of the year.

So, according to the results of the first quarter, dividends were accrued and paid in this situation (see Table 2):

The first participant - 48,000 rubles. (24% × 200,000);

The second participant - 50,000 rubles. (25% × 200,000);

Third participant - 102,000 rubles. (51% × 200,000).

The following dividends were accrued and paid at the end of the first half of the year:

The first participant - 72,000 rubles. ((24% × 500,000) - 48,000);

The second participant - 75,000 rubles. ((25% × 500,000) - 50,000);

Third participant - 153,000 rubles. ((51% × 500,000) - 102,000).

Table 2. Profit to be distributed among LLC participants
LLC member	According to the resultsIquarter, rub.	At the end of the half year, rub.	At the end of the calendar year, rub.
Fourth
Total			1 000 000

When paying the final income to the participants of the company, its size is determined in the total amount for the year, but with an offset of advance payments. Then, at the end of the year, dividends should be accrued and paid:

The first participant - 120,000 rubles. ((24% × 1,000,000) - 48,000 - 72,000);

The second participant - 125,000 rubles. ((25% × 1,000,000) - 50,000 - 75,000);

Third participant - 55,000 rubles. ((31% × 1,000,000) - 102,000 - 153,000);

The fourth participant - 200,000 rubles. (20% × 1,000,000).

The part of the LLC's profit intended for distribution among its participants is distributed in proportion to their shares in the authorized capital of the company. A different procedure can be established by amending the charter of the company by decision of the general meeting of participants in the company, adopted by all participants in the company unanimously (part 2 of article 28 of Federal Law No. 14-FZ).

Given the above procedure, it should be concluded that if the participants in the company decide to distribute profits in proportion to the time during which the new participant was actually a member of the company, then such a decision will not comply with the law. The requirements of the new participant for the payment of dividends in full at the end of the year will be recognized as legitimate. As an example of court decisions on a similar issue, one can cite the Resolution of the Federal Antimonopoly Service of the North-Western District of March 23, 2009 in case No. A56-11686 / 2008.

Please note that in this situation, interim dividends for the first quarter and six months were not accrued and were paid in a larger amount than was due to all four participants at the end of the year. However, this does not always happen.

Situation 3

Let's keep the conditions of the previous situation, but let's assume that according to the results of 2011, the profit for distribution amounted to 1 million rubles. At the same time, the profit according to the results of the first half of the year amounted to 1.3 million rubles, that is, in the second half of the year the company received a loss. How should interim dividends already paid be redistributed among the new participants?

The financial result of the organization's activities can be both profit and loss. According to Art. 29 of Federal Law No. 14-FZ, limited liability companies cannot make decisions on the payment of dividends:

Until full payment of the entire authorized capital;

Until the payment of the actual share or part of the share of a member of the company in cases provided for by law;

If the company meets the signs of insolvency (bankruptcy) or there is a possibility of such signs appearing as a result of the payment of dividends;

If the value of the net assets of the company is less than the authorized capital and reserve fund or becomes less as a result of the payment of dividends.

Pay attention to the last condition. Recall that the net assets indicator is calculated as the difference between assets and liabilities. So if the company's accounts payable are significant, net assets may well be less than the authorized capital. In this case, it is illegal to pay dividends.

But let's assume that there are no signs of bankruptcy, the value of net assets exceeds the size of the authorized capital, and at the end of 2011, a profit was received for distribution among the participants in the amount of 1 million rubles. The only obstacle is the overpaid dividends in the amount of RUB 1.3 million.

In this case, the general meeting of the company's participants may decide to credit the overpaid dividends against the upcoming dividend payments in subsequent years or to return them to the company's cash desk. However, the return of the amounts paid is carried out by the participants of the company - individuals voluntarily, the company is not entitled to forcibly demand their return.

And vice versa: a company member is not entitled to demand payment of a part of the net profit to him, if the decision on the distribution of profit was not made by the general meeting of the company participants (subparagraph “b”, paragraph 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 90, Plenum of the Supreme Arbitration Court of the Russian Federation No. 14 dated 09.12 .1999 "On some issues of the application of the Federal Law "On Limited Liability Companies"").

Also, one cannot ignore a number of ambiguous situations regarding the distribution of profits as dividends in organizations with special taxation regimes (STS, UAT, UTII), in the application of which organizations are exempted from paying income tax. Consider one of these questions using the example of the following situation.

Situation 4

LLC applies the simplified tax system with the object "income minus expenses". Does the sole founder, who is also the director of the company, have the right to accrue dividends to himself and not switch to the general taxation system?

In a company consisting of one participant, decisions on issues related to the competence of the general meeting of participants in the company are taken by the sole participant of the company individually and are drawn up in writing (Article 39 of Federal Law No. 14-FZ, letter of the Federal Tax Service of Russia for Moscow dated April 19, 2007 No. 20-12/ [email protected](a)).

The simplified taxation system is one of the four special tax regimes in force in the Russian Federation (clause 2, article 18 of the Tax Code of the Russian Federation). It is focused on simplifying the calculation and payment of taxes in the entrepreneurial activities of small and medium-sized businesses. When applying the simplified tax system, the taxpayer is exempt from paying a number of taxes, including income tax (clauses 2, 3 of article 346.11 of the Tax Code of the Russian Federation). Moreover, organizations, when working on the simplified tax system, have the right not to keep accounting records, with the exception of accounting for fixed assets and intangible assets (clause 3, article 4 of the Federal Law of November 21, 1996 No. 129-FZ (as amended on November 28, 2011) " On Accounting).

However, it should be emphasized that not to use the traditional accounting system organizations-"simplified" have the right, but not the obligation.

In the case when it comes to the distribution of profits, accounting will be the main documentary evidence of the possibility of accruing dividends and applying preferential tax rates for personal income tax.

Profit for distribution, or "net" profit, in the case of the application of the simplified tax system, is determined in accordance with the procedure provided for in paragraph 23 of PBU 4/99. A similar opinion was expressed in a letter from the Federal Tax Service for Moscow dated January 15, 2007 No. 18-11 / 3 / [email protected]

In other words, an organization that applies the simplified tax system and is exempt from paying income tax is entitled to accrue and pay dividends in full when maintaining accounting records. At the same time, there is no need to switch to the general taxation system.

Income in the form of dividends due to individuals is subject to personal income tax in accordance with Ch. 23 of the Tax Code of the Russian Federation. Therefore, in the situation under consideration, the organization - the source of dividends must fulfill the duties of a tax agent for the payment of personal income tax in accordance with paragraph 2 of Art. 214 of the Tax Code of the Russian Federation. The tax agent determines the amount of personal income tax separately for each taxpayer in relation to each payment of the specified income: at the rates of 9% - for individuals who are tax residents of the Russian Federation (clause 4 of article 224 of the Tax Code of the Russian Federation), 15% - for individuals who are not tax residents of the Russian Federation (clause 3, article 224, clause 3, article 275 of the Tax Code of the Russian Federation).

When receiving income in cash, the date of actual receipt of income is determined as income payment day, including transfers of income to the taxpayer's accounts in banks or, on his behalf, to the accounts of third parties (subclause 1, clause 1, article 223 of the Tax Code of the Russian Federation).

The status of an individual (incorporated or not in the state of the founder) does not matter for the accrual and payment of dividends. This is important only when choosing an accounting account on the basis of the Instructions for the Application of the Chart of Accounts for Accounting Financial and Economic Activities of Organizations.

So, if the founder performs the duties of a director, then the accrual of dividends is reflected on the credit of account 70 “Settlements with personnel for wages” subaccount “Settlements with employees for the payment of dividends (income from participation in the authorized capital)” in correspondence with account 84 “Retained earnings ( uncovered loss).

Note. In accordance with paragraph 1 of Art. 28 of Federal Law No. 14-FZ, the participants in the company have the right to make a decision on the distribution of profits remaining after taxation among themselves, that is, on the payment of dividends, on a quarterly basis, once every six months or once a year. Thus, the distribution of profits is a right, not an obligation. And if the founder of the organization does not want to receive dividends, but wants to use the profit for something else, he can do it.

And one more nuance related to the situation when the sole founder is the head of the company. Rostrud in a letter dated December 28, 2006 No. 2262-6-1 notes the following. Cases when the sole founder of a legal entity is also its leader (for example, the general director) are not uncommon. According to Art. 56 “The concept of an employment contract. Parties to an employment contract” of the Labor Code of the Russian Federation, an employment contract is concluded between the employee and the employer. In this situation, according to Rostrud, in relation to the general director, his employer is absent.

However, the non-application of ch. 43 "Peculiarities of labor regulation of the head of the organization and members of the collegial executive body of the organization" of the Labor Code of the Russian Federation to the relations that arise when the head is at the same time the sole founder of the organization, does not mean that other norms of labor legislation do not apply to these persons. From Art. 16 “The grounds for the emergence of labor relations” of the Labor Code of the Russian Federation, it follows that labor relations arise between an employee and an employer on the basis of an employment contract concluded, among other things, as a result of appointment to a position or approval in a position. At the same time, in this situation, on the basis of Art. 20 "Parties of labor relations" of the Labor Code of the Russian Federation, an employer is a legal entity (organization) that has entered into labor relations with an employee, and not an individual - the head of the organization.

It is not uncommon that in such situations they try to save on payroll taxes by accruing and paying the director only dividends, including intermediate ones.

But non-payment of wages to the director during the period when he, as a manager, manages the organization, signs financial documents and makes decisions, including on the payment of dividends, in our opinion, does not meet the norms of labor law. Such a situation can be the basis for disputes and conflicts with regulatory and inspection bodies, and if facts of unjustified non-calculation of wages are revealed, the organization can be brought not only to tax, but also to administrative liability (Article 5.27 “Violation of labor legislation and labor protection » Code of Administrative Offenses of the Russian Federation).

Accounting Regulation "Events after the reporting date" (PBU 7/98), approved by Order of the Ministry of Finance of Russia dated November 25, 1998 No. 56n (as amended on December 20, 2007).

Regulation on accounting "Accounting statements of the organization" PBU 4/99, approved by Order of the Ministry of Finance of Russia dated 06.07.1999 No. 43n (as amended on 08.11.2010).

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?

According to the 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:

1. 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.
2. 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.
3. 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, a tax base for personal income tax arises.

Important:

• The results of the general meeting of shareholders or participants must be documented: they pay attention to this during 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. In this case, the 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 the charters 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, the documents of the Central Bank, which regulate cash transactions, do not allow the payment of 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, receivables, securities, rights of claim). 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 to pay dividends in kind, be sure to clarify this issue with your accountants, 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 the chief accountant must do is to reflect the debt of the company for the payment of 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 for the payment of dividends arise. 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, the economic meaning and legal nature of 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 at enterprises that apply the general taxation regime and at enterprises that pay a 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 the residual value of 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.

1. Dt 75.2 (70), Kt 90.1 reflects the cost of goods and finished products, including VAT.
2. 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.

1. Write-off of the book value of 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 have the physical ability to do so. 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.

The source of payments - the enterprise (the tax agent) is not able to withhold income tax from such dividends, therefore, the company is obliged to send a notice of the impossibility of withholding income tax to the tax office at the place of registration of the individual to whom dividends are paid, and at the place of its own registration within a month . 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 it has an obligation to calculate 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 form 2 of the personal income tax, where the amount of dividends paid must also be indicated. The personal income tax rate is 13%, no additional taxes need to be paid on these amounts.

Contributions to off-budget funds, in particular to the pension fund and the Social Insurance Fund, 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 under GPC agreements providing for the performance of work or the provision of services (contract and paid services agreement).

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 tax regimes. 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 the 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 the 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 by the tax authorities into payments from net profit. 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. they are different CBCs. 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 in an employment relationship with our company, then the company 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. Here we are talking about the payment of dividends not to an individual, but to a legal entity, therefore the income tax rate of 20% appears, the company burdens the recipient of dividends with a general taxation regime. 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.