Deposits in the management company: pitfalls. Agreement on making a contribution to the property of the company Cash contributions from owners

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”.

Any of the founders of a limited liability company, and since the summer of 2016, any shareholder of a joint-stock company, can contribute additional funds to the organization’s property fund. This way you can finance your company free of charge. If this operation is completed correctly, it can be carried out in such a way that it does not increase, which means that there will be no need to redistribute the shares of participants or change the value of shares.

Let’s take a closer look at the possibility of making such a contribution, its legislative justification, correct accounting procedures and tax consequences.

What do the laws say?

Federal legislation allows making gratuitous contributions to property assets, without affecting the amount of the authorized capital. At first, this right applied only to LLCs: according to Art. 27 of the Federal Law of February 8, 1998 No. 14-FZ “On Limited Liability Companies”, the right of investors to contribute funds to the company’s fund is not limited.

Since mid-summer 2016, this possibility has been legally extended to joint-stock companies: Federal Law No. 339-FZ of July 3, 2016, which entered into force on July 15, introduced corresponding changes to the previously existing regulatory act.

Features of a gratuitous contribution from the founder

Why should participants contribute funds to the company without increasing their share and authorized capital? Such financing is intended to solve several problems simultaneously:

  • increase the organization's net assets;
  • add additional working capital;
  • acquire the necessary material or other property;
  • improve reporting indicators on the balance sheet.

Unless otherwise provided in the Articles of Association, capital is contributed in cash. The law does not prohibit authorization to make a contribution in any form, such as:

  • movable property;
  • things;
  • real estate objects;
  • share in the authorized capital of another organization;
  • shares of any other company;
  • securities;
  • intangible assets (exclusive rights, licenses, patents, etc.).

IMPORTANT! The obligatory nature of such contributions is regulated solely by the decision of the founders and is included in the statutory documents.

Options for legal recognition of transferred property

The founder, especially if he is also a legal entity, transferring property free of charge to the organization’s fund, must correctly reflect this operation in his accounting documents. Such an act cannot be recognized as a donation procedure, since its size, as a rule, exceeds the limits allowed for donations between organizations. In order for the ban on donations between legal entities, justified in paragraph 1 of Art. 575 of the Civil Code of the Russian Federation was not violated, the contribution of participants to the LLC should be considered as:

  • investment transaction;
  • generally accepted implementation.

FOR YOUR INFORMATION! In both cases, the contribution of property is considered a gratuitous transfer, so these funds are neither an expense of the transferring party nor the income of the receiving party.

Postings of gratuitous transfer of property in accounting

On the balance sheet, the procedure for gratuitous return and acceptance of property assets is carried out in accordance with clause 11 of PBU 10/99 “Organizational Expenses”, Instructions for the Application of the Chart of Accounts and Letter of the Ministry of Finance of Russia dated January 29, 2008 No. 07-05-06/18.

Sending side wiring:

  • if a contribution is made in the form of cash: debit 91-2 “Other expenses”, credit 50 or 51 “Long-term loans” or 51 “Current accounts”, the content of the transaction indicates that a cash contribution is reflected;
  • if materials, goods, etc. are transferred to the property: debit 91-2 “Other expenses”, credit 10 “Fixed assets”, 40 “Authorized capital” or 41 “Share capital”, the content of the transaction is a reflection of the transfer of non-cash contributions of funds;
  • if any property is transferred: debit 01 “Fixed assets” (disposal), 02 “Depreciation of fixed assets” or 91-2 “Other expenses”, credit 01 “Fixed assets” (operation), 01 “Disposal of fixed assets”, The recorded transaction is the write-off of the initial cost of the fixed asset accrued on it, or the transfer of a non-cash contribution.

Postings of the receiving party(depending on whether value added tax was charged):

  • if the receipt of property was considered as a sale: debit 91-2 “Other expenses”, credit 68 “Calculations for taxes and fees”, the transaction for calculating VAT when making a contribution in non-monetary form is reflected;
  • if the deposit was considered as an investment transaction: debit 91-2 “Other expenses”, credit 68 “Calculations for taxes and fees”, the restoration of VAT accepted for deduction is reflected;
  • if the contribution is made in cash: debit 75 “Settlements with founders”, credit 83 “Additional capital”, operation to reflect the monetary contribution to the property of the subsidiary; debit 50 or 51, credit 75, receipt of funds from the participant as a contribution to the property;
  • when contributing goods or materials: debit 75 “Settlements with founders”, credit 83 “Additional capital”, making a non-monetary contribution; debit 10 “Fixed assets” or 41 “Share capital” – receipt of a non-monetary contribution from a participant;
  • upon receipt of a fixed asset: debit 75 “Settlements with founders”, credit 83 “Additional capital”, making a non-monetary contribution; debit 08-4 “Investment in non-current assets, acquisition of fixed assets”, credit 75 “Settlements with founders” - receipt of fixed assets from the founder as a property contribution.

NOTE! If the contribution is made not in cash, but in property form, then the party receiving it will not be able to take a deduction for this contribution.

Reflection of a gratuitous contribution in tax accounting

As a result of gratuitous contributions made by the founders, the tax burden is slightly reduced if it is made to increase net assets. In all other cases, the contribution affects the tax accounting of the receiving party (changes the composition of the founders’ shares).

Tax consequences for the transferor

Income tax will not be taken into account, since from a tax point of view, the transferred property is not profit, and therefore, expenses and costs associated with its transfer are not recognized (clause 16 of Article 270 of the Tax Code of the Russian Federation).

can be considered in two ways:

  • if funds are transferred, or the procedure is regarded as a sale, VAT must be charged, since the object of the transaction is present (letter of the Ministry of Finance dated July 15, 2013 No. 03-07-14/27452);
  • if the transfer is considered as an investment transaction, there is no need to charge VAT, since the object of taxation itself is absent (clause 1, clause 2, article 146 of the Tax Code of the Russian Federation, clause 4, clause 3, article 39 of the Tax Code of the Russian Federation).

Tax implications for the host

Income tax is also not accepted for accrual, since according to the law the organization did not receive any taxable income. The law does not put forward additional conditions that must be observed by the receiving party (such as the amount of participation in the capital, the specifics of the disposal of the received property, etc.).

Nuances can only arise in connection with the depreciation of fixed assets received as such contributions. The received property should be assessed at market value at the time of making the contribution, but not lower than the book value of the transferring party, and then depreciated (this is permitted by letters of the Ministry of Finance of Russia dated April 28, 2009 No. 03-03-06/1/283 and dated December 5, 2008 No. 03 -03-06/1/674). It is prohibited to apply bonus depreciation.

If the received property subsequently needs to be written off or sold, their value will need to be included in tax expenses (clause 2, clause 1, article 268 of the Tax Code of the Russian Federation), since from the moment of transfer the contribution becomes the property of the organization that accepted it.

Value added tax will not be accepted for deduction, since it cannot be restored by the party transferring the contribution. There are no special provisions for VAT deduction in the case of gratuitous contributions in the tax legislation of the Russian Federation.

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.


The division of property in most cases is an integral part of the divorce process.

Civil and family legislation establishes that not only movable and immovable property, but also funds, both cash and those in bank accounts, are subject to division.

What is the procedure for dividing funds in a divorce? This article is devoted to this issue.

Principles for dividing funds during divorce

According to civil law, the division of cash or non-cash money occurs on the same principle as the division of property. If money is earned during family life, it will have to be divided equally, regardless of which spouse received the income.

However, cash has some specifics compared to property. For example, a car is registered with the traffic police, an apartment, house, cottage, land is registered with the Rosreestr and BTI authorities. All transactions with valuable property take place with the participation of a notary and the above-mentioned authorities. Therefore, it is extremely difficult to conceal property or perform an illegal transaction before a divorce. The same cannot be said about money.

If we are talking about cash, it is difficult to separate them, since it is extremely difficult to determine the amount of money. If the money is in a bank account (checking, deposit, savings) - the chances of a fair division increase significantly.

So, dividing money between husband and wife makes sense only if it appeared during the marriage, which is documented (in receipts, contracts, bank statements, receipts and other documents). This can be done by drawing up a marital agreement or in court.

How to divide funds in the account?

Let's consider several of the most common situations related to the division of a cash deposit.

  1. The cash deposit was opened before the marriage was registered. In this case, the funds placed in the account are personal property and cannot be divided.

What should you pay attention to in this case?

  • Date of conclusion of the agreement between the client and the bank. If the agreement was signed by the parties before the marriage was registered (regardless of whether there was an automatic prolongation (extension) of the term of the agreement, whether there was a replenishment or withdrawal of funds), the money is the personal property of the spouse in whose name the cash deposit was opened;
  • Origin of funds in a bank account. It happens, for example, like this: personal money was withdrawn from a bank account opened before marriage and deposited into another account in another bank (for the same amount, taking into account interest capitalization) during the marriage. In this case, the second spouse has no right to claim the money, but only if there is convincing evidence of the premarital origin of the money.
  1. The bank deposit was opened during the marriage, but the funds deposited on it were personal (received from the sale of personal property, by inheritance, as a gift), therefore, they are not subject to division between the spouses.

It should be remembered that money received as a gift or inheritance is personal and not joint property. Even if they were deposited into a bank account during the marriage, they are not subject to division. However, the “chain of events” will need to be restored and proven in court, which is not as simple as it seems. Convincing evidence is required - bank statements, payment orders, contracts, receipts.

  1. A bank deposit was opened during marriage in the name of a minor child. Even if the funds are jointly acquired, they do not belong to the spouses, but to a minor child.

This is evidenced by Part 5 of Article 38 of the RF IC - bank deposits made by a husband and wife at the expense of their common property in the name of common minor children belong to the children and are subsequently not taken into account when dividing marital property. The practice of parents opening a deposit in the name of a child is quite common, so the law protects the interests of minor children. “Children’s” money is not divided between parents.

  1. A bank deposit is opened during marriage in the name of the husband or wife, and the second spouse does not even suspect its existence.

However, it does not matter whether the second spouse knows about the deposit or not. Such funds are subject to mandatory division, since they are joint property, unless it is proven that the money is the personal property of the spouse who opened the deposit in the bank.

Helpful advice. When filing a claim in court for the division of property, you should simultaneously submit a petition for a judicial request to banking institutions about the existence of accounts opened in the name of the spouse. The banking institution will provide the necessary information within the prescribed period in accordance with Article 57 of the Code of Civil Procedure of the Russian Federation. If there is a reasonable risk that the spouse will close the account or withdraw funds before the start of the trial, the application of an interim measure should be initiated in accordance with Articles 131-132 of the Code of Civil Procedure of the Russian Federation. As a result of consideration of the petition, the court will seize bank accounts so that the spouse will not be able to dispose of joint money. In this case, it is very important to act quickly and decisively.

  1. The bank deposit was opened during marriage, but during the separation of husband and wife, when marital relations took place only legally, but not in fact.

As a general rule, such a bank deposit will be divided in half. However, if you prove the fact of separation of husband and wife (using supporting documents or witness testimony), you can prove that the money belongs to the spouse who opened a deposit or current account in the bank. According to Part 4 of Article 38 of the RF IC, the court may recognize as personal property the property that was acquired by spouses during the period of their separation and the actual termination of family relations.

  1. The bank deposit was opened during the marriage and was registered in the name of one of the spouses. Until the division of joint property in court, money was withdrawn from the account.

The spouse who wants to divide the joint money must prove that it was spent without his consent and not for family needs. In this case, the spouse who withdrew and spent the joint money will have to return half of the wasted funds.

  1. The bank deposit was opened before the marriage, but joint funds were deposited into it during the marriage.

In this case, the initial contribution is personal property and is not subject to division. However, the spouse who owns the main sum of money is obliged to pay the other spouse half of the amount contributed from the family budget, including interest accrued on it in the case of a deposit account.

Methods for dividing joint savings

A husband and wife can divide their savings in two ways:

  • extrajudicial;
  • judicial

The out-of-court method of division, of course, is preferable.

Firstly, because money is not property that can be valued. It is not always possible to prove the existence of cash savings, therefore, to accurately calculate and divide them in court. But spouses can do this on their own - peacefully and voluntarily.

Secondly, judicial procedures, in addition to disputes and disagreements, are impossible without the preparation of documents, additional costs and bureaucratic delays.

Independent division of money by spouses is also possible in several forms. One of the options is concluding a Marriage Agreement, the second is drawing up an Agreement on the division of funds. According to Article 41 of the RF IC, the Marriage Agreement is concluded (and must be certified by a notary!) before the marriage or during the marriage, and contains all the conditions for the division of marital property, including money, in the event of divorce. An agreement on the division of marital property can be drawn up during a marriage, as well as during divorce proceedings and even after a divorce, but unlike a prenuptial agreement, it allows you to divide only the property that the husband and wife have, without taking into account what may be acquired in the future.

It makes sense to resort to judicial division only if the spouses themselves cannot resolve the financial issue.

Agreement on the division of funds between spouses

A written agreement is a document in which a husband and wife set out their agreement on the procedure for dividing joint savings.

As mentioned above, a written agreement can be drawn up not only during a marriage, but also during a divorce. You cannot independently divide marital assets only if the court has already made a decision on the division of joint marital property, which is mandatory for husband and wife.

A written agreement between spouses is not subject to strict legal requirements in form and content. In addition, this document must be drawn up voluntarily and reflect the actual intentions of the husband and wife. The document can be drawn up in free form. But this does not mean that one can treat the drafting of an agreement with disdain - an illiterate document containing contradictory and controversial provisions can be declared invalid.

It is better to involve lawyers and professionals in the field of family and civil law in the process of preparing the document. On our website you can get free legal advice on any issue that is relevant to you.

The document is drawn up in free form and contains the following information:

  • place, date of drawing up and signing of the agreement;
  • information about spouses (full name, address, passport details);
  • information about marriage or divorce, if it has already taken place;
  • the exact amount of joint cash savings (located in accounts and cash);
  • a complete list of bank deposit and savings accounts in which joint funds are located (indicating the banking institution, the number of the deposit or other agreement, the full name of the spouse in whose name it was concluded, other information);
  • deadline, methods, procedure for dividing savings;

The husband and wife have the right to provide for any methods of division that they consider fair and correct, and not only 50 to 50, as family law provides, but also in other proportional ratios of shares. For example, spouses can agree that the wife, with whom the children remain to live after the divorce, gets 2/3 of the joint savings, and the husband gets 1/3.

It is advisable that the agreement indicate the exact amounts that each spouse will receive after the division, as well as the deadline and procedure for receiving the funds (postal, bank transfer, cash transfer against receipt).

  • additional provisions (for example, methods for resolving disputes, measures for failure to comply with the terms of the agreement);
  • signatures of the parties.

It is important that the document be certified by a notary (see paragraph 2 of Article 38 of the RF IC - this provision of the law applies to any marital agreement on the division of joint property, including monetary savings). However, if one of the spouses fails to comply with the terms of the agreement, it is unlikely that it will be possible to achieve forced execution through the SSP - this document does not have the legal force of a writ of execution. In this case, you will have to go to court.

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, payments 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 are 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).