Agreement on making a contribution to the property of the company. Deposits in the management company: pitfalls Documents establishing ownership of funds

Cash and non-cash currency is an important economic category that occupies a special place in the lives of citizens. Current legislation prescribes that funds are property. This means that in the event of a divorce, the joint “stash” or contribution of the husband and wife is subject to division, the insurance contract for a home or office applies to banknotes located in a closet or safe, banknotes can be given as a gift or left as an inheritance, or other transactions and transactions can be made with them.

Answers to the questions of what category of values ​​banknotes belong to and what provisions of the law are applicable to them are provided by the articles of the Civil Code of the Russian Federation.

Art. 128 of the Civil Code of the Russian Federation is devoted to the description of objects of civil law. It lists the following:

• things;
• other property;
• results of work performed and services provided;
• intellectual property;
• other values ​​(honor, dignity, etc.).

From the text of the regulatory act it follows that cash (coins, bills) and securities in the form of documents are classified as “things”. This means that the same legal norms that apply to movable material assets apply to them.

Non-cash funds, shares, bonds that exist purely in electronic form are included in the category “other property”, but do not cease to be subject to regulation by the provisions of the Civil Code of the Russian Federation.

The idea of ​​legislators is concretized in Art. 213 Civil Code of the Russian Federation. It states that citizens and companies can own any property if it is not included in the legislative list of exceptions. Since money is not an exception, it can legally belong to both individuals and organizations. The owner disposes of the valuables at his own discretion, and his good will can only be limited by a court decision.

If the company's charter states that the general director has the right to dispose of all movable and immovable property, this means that he can make decisions regarding the expenditure of cash and non-cash funds. If the owners want to limit the manager’s access to cash flows, they should additionally stipulate this in the constituent documentation.

The interpretation of money reflected in the Civil Code of the Russian Federation also applies for insurance purposes. For example, if a legal entity insures all movable property, banknotes located in the company's cash register and safes are covered by the contract.

The RF IC understands money as property subject to division upon divorce of spouses. Regardless of which division procedure is chosen (judicial or voluntary), savings in the safe and on deposit, funds on the cards of the husband and wife are considered as joint assets.

Features of the circulation of cash and non-cash money

Cash can exist in two forms:

• cash;
• cashless.

Cash is bills and coins of Russian or foreign currency. Non-cash means funds in accounts in credit institutions, in electronic wallets.

If non-cash transactions are not limited by law, then special requirements are established regarding cash. According to Central Bank Directive 3073-U, adopted in 2013, settlements between individual entrepreneurs and companies under one agreement cannot exceed 100 thousand rubles. The balance must be carried out through the current accounts of legal entities.

If cash payments are made in foreign currency, their maximum amount is set as 100 thousand in ruble equivalent, calculated at the exchange rate of the Central Bank of the Russian Federation at the time of receipt of funds at the cash desk of the recipient company.

Current legislation sets a limit on the amount of cash in the company's cash desk. The company is obliged to calculate the limit and take the excess to the bank for crediting to the current account.

A relatively new word in payments is the emergence of electronic money. The rules for working with these values ​​and their legal status are determined by Federal Law No. 161, adopted in 2011. The regulation states that virtual banknotes are classified as property. The legislation does not establish any limits or restrictions on settlements with them.

Demand for money as property

The demand for money is the number of bills and coins that economic entities would like to have with them for calculations, accumulation, and speculation. It is not limitless, as is commonly thought, but can be measured. Determining its size is as significant an event for the Central Bank of the Russian Federation as studying the need for ready-made bouquets is for a flower shop.

The economic theory formulated by Keynes and his followers names three motives for the emergence of demand for cash:

• Transactional is the desire of citizens and organizations to have cash with them so as not to experience difficulties when purchasing goods and services. This motive is due to the fact that banknotes mediate payments between individuals and legal entities. The level of demand is determined by the amount of income of business entities.
• The precautionary motive is the desire of the population and business entities to have a little more money than is required according to their calculations, in case of making unexpected, “emotional” purchases. The need for “additional” banknotes is determined by income level.
• Speculative (demand as for property) - dictated by the desire of citizens and companies to preserve what they have acquired. They choose cash because of its maximum liquidity. The downside is that notes retain value but do not increase value, so demand falls as bond rates and stock yields rise.

In modern conditions, the importance of Keynesian theory for understanding the demand for cash is decreasing. New ways of saving savings (electronic wallets, bank deposits) and payment (debit and credit cards, electronic payments, etc.) are emerging. When determining society's need for banknotes, the Central Bank of the Russian Federation must take into account “new trends”.

1. Participants of the company are obliged, if provided for by the charter of the company, by decision of the general meeting of participants of the company, to make contributions to the property of the company. Such an obligation of the company's participants may be provided for by the company's charter when the company is founded or by introducing amendments to the company's charter by decision of the general meeting of the company's participants, adopted unanimously by all the company's participants.

The decision of the general meeting of the company's participants on making contributions to the company's property may be adopted by a majority of at least two-thirds of the total number of votes of the company's participants, unless the need for a larger number of votes to make such a decision is provided for by the company's charter.

2. Contributions to the property of the company are made by all participants of the company in proportion to their shares in the authorized capital of the company, unless a different procedure for determining the amount of contributions to the property of the company is provided for by the charter of the company.

The company's charter may provide for the maximum value of contributions to the company's property made by all or certain participants of the company, and may also provide for other restrictions associated with making contributions to the company's property. Restrictions related to making contributions to the company's property established for a specific participant in the company in the event of alienation of his share or part of the share do not apply to the acquirer of the share or part of the share.

(see text in the previous edition)

Provisions establishing the procedure for determining the size of contributions to the company's property disproportionate to the size of the shares of the company's participants, as well as provisions establishing restrictions associated with making contributions to the company's property, may be provided for by the charter of the company upon its establishment or included in the company's charter by decision of the general meeting of the company's participants. , adopted unanimously by all members of the society.

Amendments and exclusions of the provisions of the company's charter establishing the procedure for determining the size of contributions to the company's property disproportionate to the size of the shares of the company's participants, as well as restrictions associated with making contributions to the company's property established for all participants of the company, are carried out by decision of the general meeting of the company's participants, adopted by all participants society unanimously. Amendments and exclusions of the provisions of the company's charter that establish the specified restrictions for a certain participant of the company are carried out by decision of the general meeting of the company's participants, adopted by a majority of at least two-thirds of the votes of the total number of votes of the company's participants, provided that the company participant for whom such restrictions are established, voted for such a decision or gave written consent.

Last update: 02/20/2018

How it happens transferring money for an apartment (method of cash payments) depends on the type of market in which we buy or sell an apartment.

Payments for an apartment through a letter of credit

Letter of Credit- this is a banking service that represents the obligation of the bank, on behalf of the client, to make a payment from the client’s account to a specified person ( recipient) upon presentation of the agreed documents.

The essence is the same as safe deposit box, but in the cell calculation cash, and here - cashless .

The bank in which the Buyer opens a letter of credit is called issuing bank .

The bank that will issue money to the Seller is called executing bank (may be the same bank as the issuer).

The provision by the Seller of documents confirming the sale of the apartment and the transfer of ownership is called - method of execution of a letter of credit .

Letter of Credit May be covered (deposited) or uncovered (guaranteed). In the first case issuing bank actually transfers money to the account executing bank , and in the second case the money is stored in the account issuing bank until the moment execution of a letter of credit .

Letter of Credit it could also be revocable or irrevocable . Here we are talking about an arbitrary possibility issuing bank recall letter of credit from executing bank .

In practice, settlements through a letter of credit are most often used covered irrevocable letter of credit. It is this type of it that allows the interests of both the Seller, the Buyer, and the bank to be taken into account to the greatest extent.

♦ Sequence of actions when paying through a letter of credit ♦

At the same time, payments via letter of credit in the secondary real estate market have a number of difficulties (compared to payments through a safe deposit box):

• Big number of documents for the bank when opening a letter of credit;
• More high price such a service, compared to renting a cell;
• Large time spent to prepare payments through a letter of credit;
• Small number of banks providing letter of credit services;
• This service is ordered quite rarely, so work fine few people can handle it;
• Additional bank commissions , incl. for cashing out money from the account ( for the Seller - the recipient of the money);
• Possible difficulties for the Buyer upon return of money in case of failure of the transaction . The executing bank may freeze the funds in its account and return them to the Buyer after a lengthy investigation, incl. judicial

As is the case with payments through a safe deposit box, the executing bank is not responsible for the authenticity of the documents provided by the Seller. In addition, the bank is required to report major transactions to the tax office, which does not make transaction participants very happy.

And the most important thing payments via letter of credit practically impossible with "alternative transactions", of which there are a lot on the market.

Because of the above inconveniences, as well as because of the popular love for cash, letter of credit in apartment purchase and sale transactions used extremely rarely. And in the primary housing market, instead of a letter of credit, they use a payment instrument very similar to it - ( more details about them - follow the link).

Calculations in a mortgage loan transaction

If the Buyer takes, then the form of payment may differ slightly from those described above, because still takes part in them creditor bank .

Depending on the creditor bank , money for the apartment can be transferred to the Seller as cash (through the cell, as a general rule), and transferred to the Seller’s account by bank transfer (here the bank personally negotiates with the Seller on the terms of the transfer).

In case of cell, the creditor bank may require additional papers from the Seller for cell access with money. For example, Extract from the Unified State Register, receipt for money for the sold apartment, a receipt from Rosreestr on acceptance of a package of documents for registration, etc.

"SECRETS OF A REALTOR":

A detailed algorithm of actions when buying and selling an apartment is presented in the interactive map. Opens in a pop-up window."> STEP-BY-STEP INSTRUCTIONS (will open in a pop-up window).

An agreement on making a contribution to the property of a company is a conventional concept, which in everyday speech denotes a set of documentation confirming the transfer of certain property of an LLC participant to replenish the property of the legal entity itself. Next, we will look at what documentation must be completed in such cases.

What is a contribution to LLC property

A contribution to LLC property is cash or other types of property (including real estate, securities, etc.) that an LLC participant must contribute to replenish the property of the legal entity.

The obligation to make such contributions must be regulated by the constituent documentation of the LLC. In addition, the highest management body of the LLC must make an appropriate decision on the fulfillment of this obligation by the participants of the legal entity (Clause 1, Article 27 of Law No. 14-FZ).

Decisions made by an LLC to make a contribution to the property of a legal entity are successfully appealed in the courts, if such an obligation was not fixed in the charter (for example, the resolution of the 15th AAS dated June 27, 2011 in case No. A53-961/2011, paragraph 24 of the resolution “On some questions..." dated 12/09/1999 of the plenum of the Supreme Arbitration Court of the Russian Federation No. 90, plenum of the Supreme Arbitration Court of the Russian Federation No. 14 (hereinafter referred to as Resolution No. 90/14)).

Important! A contribution to the property of an LLC and a contribution to the authorized capital of an LLC are not the same thing.

We present the differences in the table.

Basis for comparison	Contribution to the authorized capital of LLC	Contribution to LLC property
Mandatory	Mandatory in any case (Article 14 of the LLC Law)	Mandatory if provided for in the charter (Clause 1, Article 27 of the Law “On LLC”)
Deposit form	The minimum amount of authorized capital (10,000 rubles) only in money, the rest - in money, things, property rights (Clause 2 of Article 66.2 of the Civil Code of the Russian Federation)	In money, unless another procedure is provided for by the charter of the LLC or by a decision of the general meeting (Clause 3, Article 27 of the Law “On LLC”)
Impact on the size of the authorized capital	Increases the authorized capital of the LLC	Does not affect the size of the authorized capital (clause 14 of resolution No. 90/14)

Note! If it is necessary to establish certain restrictions on the types of property that can be made as a contribution to the property of the LLC, they should be enshrined in the charter.

Making a cash deposit

Let us assume that the charter of the LLC establishes the obligation for the participants of the legal entity to make contributions to its property. This procedure can be carried out only after the relevant decision has been made by the highest management body of the LLC.

The legislator has not established special requirements for the form and content of such a decision (the basic requirements for the preparation of minutes of general meetings of an LLC can be found, for example, in the article “Drawing up a protocol on the liquidation of an LLC - sample 2018 - 2019”). In addition to the standard attributes, it should also indicate:

• the amount of contribution of each participant or the algorithm for calculating it;
• deadlines for making contributions by LLC participants;
• method of making a contribution.

As stated above, money or other property may be contributed for the designated purposes (in the latter case, a corresponding provision in the charter is required).

If the contribution is made in cash by an individual participant, this fact can be confirmed:

• act of acceptance and transfer (for example, if cash was transferred to an authorized person of the LLC);
• accordingly, a receipt from an authorized person of the LLC on receipt of such funds;
• an extract from the personal account of an LLC participant about sending money in non-cash form, etc.

In a similar way, you can confirm the transfer of money by a participant in an LLC who is a legal entity.

Cash contributions from participants can also be formalized as an increase in net assets through the creation of additional capital. Then the LLC does not generate taxable income (subclause 3.4, clause 1, article 251 of the Tax Code of the Russian Federation).

Making a non-monetary contribution

When transferring a contribution in non-monetary form, an individual LLC participant must draw up an appropriate acceptance certificate (of course, the presence of the above provisions in the charter and the decisions of the participants in the general meeting of the LLC must be ensured).

The situation is more complicated when real estate is transferred, since the transfer of the right to it is subject to state registration. In this case, the real estate object transferred in favor of the LLC becomes the property of such a legal entity by virtue of the provisions of clause 1 of Art. 66 Civil Code of the Russian Federation.

Note! The legislator has not established a special list of documents required for state registration of the transfer of rights to an object of real estate transferred as a contribution to the property of an LLC. You can use the list of documentation given in clause 58 of the Administrative Regulations of the Federal Service for State Registration, Cadastre and Cartography..., approved. by order of the Ministry of Economic Development of Russia dated 06/07/2017 No. 278.

In this situation, the question also arises about the need to evaluate non-monetary property. Taking into account the fact that the amount of deposits in monetary terms is usually prescribed in the decision of the general meeting of LLC participants, and clause 2 of Art. 27 of Law No. 14-FZ regulates that the size of such a contribution is proportional to the size of the share of the corresponding LLC participant (unless a different procedure for calculating the amount of the contribution is approved in the charter), an assessment of such property is necessary (see by analogy, Article 15 of Law No. 14-FZ) .

Transfer of non-monetary contribution by a participant - a legal entity

A legal entity making a contribution to the property of a subsidiary should evaluate such a transaction to determine whether it is large. If it was not approved in the prescribed manner by the highest management body of the LLC, it can be appealed (resolution of the Federal Antimonopoly Service of the Central District dated May 22, 2008 in case No. A68-GP-49/4-04).

If an organization transfers real estate to its subsidiary to replenish its assets, it is necessary to carry out state registration of the transfer of rights to it (see the previous block of our article).

Note! If the charter of an LLC does not provide for the right of participants to make contributions disproportionate to their shares in the authorized capital, when transferring real estate by one of the LLC participants, controversial situations may arise on this basis when the contribution of one of the participants is clearly disproportionate to the contribution of other participants (see the resolution of the Federal Antimonopoly Service of the North-Western District dated October 18, 2010 in case No. A13-3496/2010).

The transfer of a contribution to the property of a subsidiary legal entity is considered a gratuitous transfer, therefore the transferring party does not include the cost of the transferred property in tax expenses (clause 16 of Article 270 of the Tax Code of the Russian Federation).

Rules for the disposal of property contributed by a participant as a contribution to the LLC

Is it possible to return items contributed by a member(s) of an LLC as a contribution to the property of the company?

This cannot be done, because The Law “On LLC” does not contain provisions on the possibility of such a return, except in the case of liquidation of the organization.

Risks! In addition, such a transfer of property may be regarded as a gift. This is especially fraught for legal entities engaged in commercial activities. By virtue of sub. 4 paragraphs 1 art. 575 of the Civil Code of the Russian Federation, donations between commercial organizations are prohibited.

You can return the property by declaring in court the decision of the general meeting regarding the transfer of real estate and things as a contribution to the property of the LLC as invalid.

How to sell property contributed as a contribution to an LLC?

Such property is the property of the Company. The latter can dispose of it (rent, sell, etc.) on a general basis.

Agreement for contribution to LLC property

As such, the legislation does not provide for an agreement to make a contribution to the property of an LLC. Typically, this term refers to a set of documentation that allows you to properly formalize the transfer of funds, things, property rights, etc. to the ownership of an LLC as a contribution to its property.

At the same time, the law does not prohibit drawing up such an agreement in addition to the act of acceptance and transfer of property, for example, to make the terms of the transaction more specific.

So, you can replenish the property of an LLC by making a contribution under the combination of the following conditions:

• This obligation of the participants of a legal entity is fixed in its charter.
• The highest management body of the LLC made a decision on making contributions. Such a decision should reflect the main parameters of the procedure: the amount of deposits, the timing of their payment, the types of property that can be used for the designated purposes.

The fact of transfer of property is usually confirmed by an act of acceptance and transfer, although the document can also be drawn up in the form of an agreement.

The transfer of rights to real estate objects transferred as a contribution to the property of an LLC is subject to the state registration procedure.

1. Contributions to the company’s property should be considered as a gratuitous transfer of property and taken into account as part of other income in accordance with clause 8 of PBU 9/99 “Income of the organization”, since they do not change the size and nominal value of the shares of the company’s participants in the authorized (share) capital, that is, they are not contributions to the authorized capital and are not subject to return. In this case, the amount of income is recognized on the date of receipt of funds in accordance with clause 16 of PBU 9/99.

According to the Chart of Accounts, gratuitous receipt of funds to the cash desk or to the current account of an organization is reflected in the debit, respectively, of account 50 "Cash" or 51 "Cash Accounts" and the credit of the account, subaccount "Gratuit Receipts". At the same time, the amount of funds received free of charge is reflected in other income by entries in the debit of the account and the credit of the account, subaccount "Other income".

So, the following entries are made in the company’s accounting records:

- the amount of the founder’s debt is reflected as gratuitous receipts (based on the decision of the general meeting of the company’s participants);

- funds were received from the founder as a contribution to the company;

Debit, sub-account "Gratuitous receipts" Credit, sub-account "Other income"
- other income is reflected in the amount received from the founders as contributions to the property of the LLC.

It should be noted that this method of accounting for participants’ contributions to the company’s property contradicts the requirements of PBU 9/99. According to clause 2 of PBU 9/99, the income of an organization is recognized as an increase in economic benefits as a result of the receipt of assets (cash, other property) and (or) repayment of liabilities, leading to an increase in the capital of this organization, with the exception of contributions from participants (owners of property).

2. The Ministry of Finance of Russia recommends reflecting in accounting the contribution to the company’s property under the credit of account 83 “Additional capital” (see, for example, letters of the Ministry of Finance of Russia dated January 29, 2008 N 07-05-06/18, dated April 13, 2005 N 07-05 -06/107). That is, when funds are received, the following entries are made in accounting:

Debit, subaccount "Settlements for contributions to the company's property" Credit
- reflects the amount of the founder’s debt on contributions to the company’s property (based on the decision of the general meeting of the company’s participants);

Debit () Credit, subaccount "Settlements for contributions to the company's property"
- funds were received from the founder as a contribution to the company.

However, there is no direct indication for recording such transactions using the account in the Chart of Accounts. Moreover, the list of transactions that can be reflected in additional capital is closed, and there are no transactions with contributions to the company’s property in it.
Thus, we believe that the organization should independently choose and consolidate the method of reflecting the contributions of the founders in the order on accounting policies in accordance with PBU 1/2008.

Land plot

In accounting, land plots can be classified as fixed assets in accordance with paragraph 2 of clause 5 of PBU 6/01 “Accounting for fixed assets” if they meet the requirements established in clause 4 of PBU 6/01, namely:

a) use in the production of products, when performing work or providing services, or for the management needs of the organization;

b) use for a long time, i.e. useful life exceeding 12 months or normal operating cycle if it exceeds 12 months;

c) the organization does not intend to subsequently resell these assets;

d) the ability to bring economic benefits (income) to the organization in the future.

The initial cost of fixed assets received free of charge is recognized as their current value on the date of acceptance for accounting as investments in (clauses 7, 10 of PBU 6/01). According to paragraph 1 of Art. 66 of the Land Code, the market price of land is determined in accordance with the Federal Law of July 29, 1998 N 135-FZ “On Valuation Activities in the Russian Federation”.

In this case, as a result of the gratuitous receipt of an asset, the organization receives other income in the amount of the market value of this asset (clauses 7, 10.3 of PBU 9/99 “Income of the organization”).

Based on clause 11 of PBU 9/99 and clause 29 of the Methodological guidelines for the accounting of fixed assets, approved by order of the Ministry of Finance of Russia dated October 13, 2003 N 91n, the acceptance for accounting of fixed assets transferred free of charge is reflected in the debit of the account for accounting for investments in non-current assets in correspondence with the deferred income account with subsequent reflection in the debit of the fixed assets account in correspondence with the credit of the account for investments in non-current assets.

It should be noted that in letters dated 02/17/2006 N 03-03-04/1/126, dated 04/05/2005 N 03-03-01-04/1/158, the Ministry of Finance of Russia explained: “Acceptance of land plots for accounting as part of fixed assets are carried out on the basis of a duly approved act of acceptance and transfer of fixed assets and documents confirming their state registration in the Unified State Register of Rights with the assignment of a cadastral number by the body carrying out the activities of maintaining the State Land Cadastre."

Based on the decision of the general meeting of company participants, the following entry is made in the accounting records:

Debit, subaccount "Settlements for contributions to the company's property" Credit, subaccount "Gratuitous receipts"
- reflects the amount of the founder’s debt on contributions to the company’s property.

On the date of transfer of the land plot, the organization must make the following entries in its accounting records.