Commission for transferring dividends. “Question: About JSC accounting for expenses related to the payment of dividends for income tax purposes Bank commission for transferring dividends to an individual

The founders set the task of paying dividends due to them for previous years from the profits received. What is the correct course of action for an accountant in this case?

Action plan:

2. Protocol for the distribution of profit in the context of each participant in the company - the presence at the enterprise of a protocol for distribution of profit signed by the participants - dividend calculation;

3. Reflection of the distributed profit of each participant in accounting - accrual of dividends in the reporting period according to the protocol for previous periods - dividend payment;

4. Bank payment of dividends - amount, Commission of the bank, withholding personal income tax from dividends;

5. A package of documents required by the bank when transferring dividends.

6. Bank for receiving dividends - card of an individual;

1. Charter - composition and size of shares of the founders;

2. Protocol for the distribution of profit in the context of each participant in the company - the presence at the enterprise of a protocol for distribution of profit signed by the participants;

PROTOCOL No.1
EXTRAORDINARY GENERAL MEETING OF PARTICIPANTS
LIMITED LIABILITY COMPANIES
"Society"

Moscow November 30, 2018
Opening time of the extraordinary general meeting of participants: 12.00.
Closing time of the extraordinary general meeting of participants: 13.00.
Venue: Moscow, st. Voroshilova, 67, office 54.
Start time of vote counting: 10.00.
Total number of participants: 3.
Total number of persons present at the meeting: 3, of which participants: 3.
Participants present:

Citizen of the Russian Federation Ivanov Ivan Ivanovich (passport: series 1234 No. 567891, issued by the Oktyabrsky Department of Internal Affairs of Moscow, subdivision code 013-019, registered at the address: Moscow, Novoslobodskaya St., 77), share in the authorized capital 50% ;

Citizen of the Russian Federation Petrov Petr Petrovich (passport: series 1234 No. 567892, issued by the Oktyabrsky Department of Internal Affairs of Moscow, division code 013-019, registered at the address: Moscow, Novoslobodskaya St., 99), share in the authorized capital 30% .

Citizen of the Russian Federation Sidorov Sidr Sidorovich (passport: series 1234 No. 567893, issued by the Oktyabrsky Department of Internal Affairs of Moscow, division code 013-019, registered at the address: Moscow, Novoslobodskaya St., 55), share in the authorized capital 20% .

Appoint I.I. Ivanov as Chairman of the meeting.
The secretary of the meeting is P.P. Petrova.
The person who counted the votes: Ivanov I.I..

There is a quorum to make a decision.
Agenda:
1. Direction of profit received by LLC " Society" for 2014, 2015, 2016, 2017, for the payment of dividends.
2. Approval of the timing and procedure for payment of dividends.
Listened:

Proposal of Ivanov I.I.
1. In accordance with Art. 29 of the Federal Law “On Limited Liability Companies” there are no restrictions on the payment of dividends.
As of January 1, 2018, the amount of net profit determined on the basis of accounting data is RUB 46,000,000.
Distribute net profit among the participants in proportion to their shares in the authorized capital for 2014 and pay dividends to: Ivanov I.I. - 5,000,000 rubles, to P.P. Petrov – 3,000,000 rubles, Sidorov S.S. -2,000,000 rub.

Distribute net profit among the participants in proportion to their shares in the authorized capital for 2015 and pay dividends to: Ivanov I.I. - 7,500,000 rubles, to P.P. Petrov – 4,500,000 rubles, Sidorov S.S. -3,000,000 rub.

Distribute net profit among the participants in proportion to their shares in the authorized capital for 2016 and pay dividends to: Ivanov I.I. - 6,000,000 rubles, to P.P. Petrov – 3,600,000 rubles, Sidorov S.S. -2,400,000 rub.

Distribute net profit among the participants in proportion to their shares in the authorized capital for 2017 and pay dividends to: Ivanov I.I. - 4,500,000 rubles, to P.P. Petrov – 2,700,000 rubles, Sidorov S.S. -1,800,000 rub.

Voted: “for” - 3 votes, “against” - none, “abstained” - none.
2. Pay dividends to participants in cash from the cash desk (transfer to a personal account) before December 5, 2018.
Voted: “for” - 3 votes, “against” - none, “abstained” - none.
Decided :
1. On the first question: “In accordance with Art. 29 of the Federal Law “On Limited Liability Companies” there are no restrictions on the payment of dividends.
Distribute net profit determined on the basis of accounting data in the amount of 43,000,000 rubles. between the participants in proportion to their shares in the authorized capital and pay dividends to: Ivanov I.I. - 23,000,000 rubles, to P.P. Petrov – 13,800,000 rubles, Sidorov S.S. -9,200,000 rub..”
2. On the second question: « Pay dividends to participants in cash from the cash register (transfer to a personal account) before December 5, 2018.”
Chairman of the meeting - Ivanov I.I. ______________
Secretary of the meeting - Petrov P.P._________________ _
The counting of votes at the extraordinary general meeting of participants was carried out by Ivan Ivanovich Ivanov.

I have read the protocol. I have no objections or additions. The adoption by the General Meeting of the decisions specified in the minutes and the composition of the company participants present at their adoption, I confirm _______________ I.I. Ivanov

I have read the protocol. I have no objections or additions. The adoption by the General Meeting of the decisions specified in the minutes and the composition of the company's participants present at their adoption, I confirm _______________ P.P. Petrov

3. Reflection of the distributed profit of each participant in accounting - accrual of dividends in the reporting period according to the protocol for previous periods;

This is how dividends are calculated for all participants, according to the profit distribution protocol. According to the final reformation, profits accumulated from 2014 to 2017. Dividends are accrued on the basis of a signed profit distribution protocol:

4. Bank payment of dividends - the amount of the bank’s commission, withholding personal income tax from dividends;

This is what the dividend distribution card looks like for each member of the company: accrual and payment with withholding personal income tax of 13% for tax residents of the Russian Federation:

For information purposes, a summary of dividends paid is formed; there may be more than one protocol for the distribution of profits, so you can clearly track payments and debt balances in this way:

The bank commission is charged minus budget contributions, the total payment in this example is 41 million rubles. withheld personal income tax 13% for tax residents of the Russian Federation - RUB 5,330,000. The base for calculating the bank commission is RUB 35,670,000. Depending on the bank, the commissions are different, for example:

5. A package of documents required by the bank when transferring dividends;

The bank will request, and the organization, in turn, must provide copies of the following documents:

Profit distribution protocol, certified copy;

Accounting balance(form f-1 )

Report O profits And losses(form f-2 )

Receipt for acceptance of the balance sheet in electronic form or financial statements with a mark on its acceptance.

The organization submits these documents within 10 days to both the dividend payment bank and the dividend transfer (receipt) bank. Failure to provide a package of documents will result in the suspension of movement on the current account.

6. Bank for receiving dividends - card of an individual - savings account of an individual;

A more detailed table of the amount of commission in banks when transferring from a current account or withdrawing cash to the accounts of individuals looks like this:

Banks make changes to the commission depending on the size of the funds transfer.

7. Placing free funds on deposit for individuals - term and at what interest rates.

After withdrawing funds and placing them in savings accounts of individuals, participants can set the goal of placing free funds on deposit. Banks may offer the following approximate placement conditions:

Information about the most favorable conditions and interest rates rates By deposits V banks track online in the public domain, the rate depends on many factors and bank conditions.

Tax on income on deposits

The Tax Code of the Russian Federation provides for taxation of deposits in the following cases:

If the deposit is in rubles - no more than the refinancing rate of the Central Bank of the Russian Federation + five percentage points

If the interest rate on a foreign currency deposit exceeds 9% .

For 2018, this figure is 13.5% per year. If the rate on the deposit program is higher, you need to pay tax on interest income.

The tax rate is 35% for residents of the Russian Federation and 30% for non-residents.

In this case, not all income received from the deposit is taxed, but only the part received as a result of exceeding the interest rate on the deposit of the threshold rate. In order to calculate the tax base (the amount subject to tax), you must first calculate the interest accrued at the nominal deposit rate, and then make a similar calculation at the threshold rate. The difference between these amounts will be the tax base. To obtain the tax amount, all that remains is to multiply this amount by the tax rate.

Topics: Personal income tax

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We read in issue No. 49 (2009) of the magazine the answer to the question about withholding personal income tax from the bank commission when transferring dividends to bank cards of individuals. We (LLC using the simplified tax system) transferred dividends to an individual to a deposit account in the same bank and withheld personal income tax of 9%.

In our case, should we have withheld personal income tax from the bank commission from transferring dividends? What rate is 9% or 13%? Typically, commissions on account transactions for a month are withdrawn at the beginning of the next month, which turns out to be in 2010, already in a different tax period. Was it necessary to pay personal income tax on the commission during the transfer of dividends in 2009 or during the withdrawal of the commission from the organization’s account already in 2010? Is it possible to withhold personal income tax from this employee’s salary? How to correct errors and transfer taxes and penalties?

Your situation is almost completely similar to that discussed in No. 49 "A-E" for 2009.

After all, according to clause 1.5. Regulations on the issue of bank cards and on transactions carried out using payment cards, approved by the Central Bank of the Russian Federation on December 24, 2004 No. 266-P, a settlement (debit) card is intended for transactions by its holder within the amount of funds established by the issuing credit institution ( expenditure limit), settlements for which are carried out at the expense of the client’s funds located in his bank account, or a loan provided by the issuing credit institution to the client in accordance with the agreement bank account in case of insufficient or absence of funds in the bank account (overdraft).

That is, transferring money to a bank card is essentially transferring money to the bank account to which the bank card is opened.

Let us remind you that under a bank account agreement The bank undertakes to accept and credit funds received to the account opened for the client (account owner), carry out the client’s orders to transfer and withdraw the corresponding amounts from the account and conduct other operations on the account ( clause 1 art. 845 of the Civil Code of the Russian Federation).

Now let's figure out what it is deposit.

According to Art. 834 Civil Code of the Russian Federation under contract bank deposit (deposit) one party (the bank), which accepted the sum of money (deposit) received from the other party (depositor) or received for it, undertakes to return the deposit amount and pay interest on it on the terms and in the manner prescribed by the agreement.

In this case, the rules on the agreement apply to the relationship between the bank and the depositor on the account to which the deposit is made. bank account(Chapter 45 of the Civil Code of the Russian Federation), unless otherwise provided by the rules of Chapter 44 of the Civil Code of the Russian Federation “Bank deposit” or does not follow from the essence of the bank deposit agreement.

Thus, transferring money to a deposit is essentially transferring money to a bank account physically...

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05 Apr 2018, 07:05

Many banks almost simultaneously raised the tariff for transferring funds to the accounts of individuals (loan repayment, dividend payment). The higher the transfer amount, the higher the tariff.

The Central Bank of the Russian Federation does not introduce tariff restrictions; in a number of banks it can reach 15%. Now, when choosing a bank, a business must be guided not only by the tariff for opening an account, but also take into account tariffs for other operations.

Until 2016, the bank’s commission for transferring funds to individuals’ accounts was a small percentage (0.1 - 0.5%). However, over the past year the practice has changed dramatically. A number of banks changed the percentage from minimal (0.1%) to unaffordable (10%-15%, see Appendix 1). At the same time, the commission was increased in most banks.

What transactions are subject to increased commission?

Banks charge higher commissions for all transfers to individuals, with the exception of 1-2 cases. One of the “low-tax” transfers is transactions on salary projects. However, there are a number of transactions, the transparency of which excludes a dubious nature, but nevertheless they are subject to a bank commission.

1. Payment of dividends to shareholders and company participants.

The operation is simultaneously accompanied by the payment of tax, therefore, “cash out” is excluded. In this case, a situation arises where, having already paid 13% personal income tax, you will have to pay an additional bank commission (usually either 1% or as a general percentage for transfers to individuals).

2. Repayment of the loan to the shareholder, participant of the company.

In the Russian business environment, a loan from a business owner is a common practice.

Loan repayment is a transparent mechanism; cash flow occurs in accordance with the loan agreement. However, it is subject to higher fees.

The fight against cashing out / bank income

Banks explain that such actions are aimed against the laundering of proceeds from crime, against the financing of terrorism and are generally dedicated to compliance with No. 115-FZ.

The question arises: is increasing the commission the most rational method of combating money laundering? Does an increased commission help combat illegal financial schemes or help increase bank income?

The court's view: “in favor of banks”

In case No. A23−4459/2015, it was established that the defendant Bank, as part of its ongoing program in the field of money laundering and preventing cases of dubious customer transactions, introduced a progressive commission scale in the column “Payments in favor of an individual.”

The arbitration court explained that a unilateral change by the bank to the terms of the tariff plan is legal and based on the terms of the bank account agreement. In other words, the client independently agrees with the potential possibility of the bank changing the tariff, especially in the absence of statements of disagreement with the tariffs.

The court responded to a fair argument about the bank’s abuse of rights as follows: “ By setting the fee for transferring funds in favor of individuals in the amount of 0.9% - 15%, the bank put itself at a disadvantage when compared with other banks that set a lower fee for similar transactions, since it increased the likelihood of customer outflow in case of disagreement of the latter with changed tariffs».

Conclusion

The lack of regulation by the Central Bank of the Russian Federation and the arbitrary increase in tariffs forces businesses to consciously choose a servicing bank. In our opinion, at the moment it is necessary to focus not only on the tariff for opening and maintaining an account, but also to analyze in detail other tariffs.

Appendix 1. Summary table of bank tariffs

Bank

Commission for transfer from legal account. person/individual entrepreneur to the account of an individual

Gazenergobank (now)

1) 3% is the general rule

2) 11% - if a legal loan is provided within 7 working days. person, individual entrepreneur - sender

1) Clause 4.2.2.2 Tariff
2) Clause 4.2.2.1 Tariff

Gazenergobank (formerly)

15% — “Remote” tariff (currently not in the list of bank tariffs)

From January 1, 2015, the personal income tax rate on dividends in favor of residents increased from 9 to 13 percent. Therefore, the problem of reclassifying dividends into other income, subject to this tax at a rate of 13 percent, when working with residents, disappeared by itself. In this case, the company will not be able to save on personal income tax. If the founders are not residents of Russia, it is still possible to pay tax on dividends at a rate of 15 percent instead of the usual 30 percent (clause 3 of Article 224 of the Tax Code of the Russian Federation).

Personal income tax from bank commission

Often, the company transfers dividends to the bank cards of individual participants. As a rule, banks charge a commission for such transfers. in a letter dated September 15, 2010 No. ШС-37-3/11236, she indicated that in this situation, by transferring dividends to bank accounts, the company fulfills its responsibility to ensure that participants (shareholders) receive income. The bank's services for transferring dividends are provided directly to the company, and payment for these services is made solely in its interests, and not in the interests of those receiving dividends. Accordingly, the bank's commission when paying dividends by bank transfer does not form the participant's income in kind, subject to taxation. Similar conclusions were made by the Federal Antimonopoly Service of the Volga-Vyatka District in its resolution dated 08.11.10 No. A43-2399/2010.

Moreover, if the recipient of dividends is also an employee of the company, then, according to the Russian Ministry of Finance, the organization paying the dividends has obligations. The Financial Department explains that services provided in the interests of an individual (paid in full or in part by third parties) are recognized as his taxable income , received in kind (subclause 2, clause 2, article 211 of the Tax Code of the Russian Federation). If an organization transfers amounts to employees’ bank cards that are not paid by labor legislation, the fee for servicing such cards is subject to personal income tax (letter dated November 25, 2008 No. 03-04-06-01/351).

Personal income tax on dividends not received

Often in practice, companies transfer dividends by postal order. However, due to the absence of an addressee, the funds are returned back to the company’s account.

According to the Russian Ministry of Finance, when transferring income by postal order, the date of payment of income is determined on the day the transfer is made (letter dated November 2, 2007 No. 03-04-06-01/375). Indeed, according to the rules of Article 223 of the Tax Code of the Russian Federation, the day of receipt of income is the day of its actual payment (including its transfer to the account of the taxpayer or third parties). Thus, no later than the day following the day the postal transfer was made, the tax agent transfers to the budget the amount of tax withheld from dividends paid (clause 6 of Article 226 of the Tax Code of the Russian Federation). The fact that dividends paid by postal transfer were subsequently returned to the organization’s current account does not matter for the tax agent’s fulfillment of the obligation to withhold personal income tax, which occurred at an earlier date.

A similar situation arises if the company transfers dividends to the bank for subsequent payment to the founders in cash. In this case, the company withholds personal income tax from all amounts transferred to the bank and submits to the tax authority in the prescribed manner information on income in form 2-NDFL. In this case, the fact that the taxpayer-shareholder received or did not receive cash from the bank does not matter. This was indicated by the Russian Ministry of Finance in letter dated 02.25.13 No. 03-04-06/5296. If the taxpayer did not contact the bank to receive the dividends due to him, then the bank, upon expiration of the established period, returns the funds to the company’s account. When a shareholder applies directly to the company to receive dividends from which tax was previously withheld, and re-transfers funds to the bank or when paying them to the taxpayer, there is no need to send information in Form 2-NDFL to the tax authority.

Exchange differences on dividends in foreign currency

In practice, many companies (in particular, organizations with foreign investments) pay dividends in foreign currency. In this case, in the author’s opinion, it is advisable to distribute profits in rubles, and then convert the required amount into currency at the exchange rate on the day of payment, securing the corresponding provision in the shareholders’ decision. At the same time, on the date of actual payment of dividends, the foreign currency exchange rate against the ruble may change, which will lead to negative exchange rate differences. According to local inspectors, the company has no right to take such amounts into account in tax expenses.

The Presidium of the Supreme Arbitration Court of the Russian Federation, in Resolution No. 16335/11 dated May 29, 2012, sided with the companies. According to the court, paragraph 1 of Article 270 of the Tax Code of the Russian Federation, excluding the amount of accrued dividends from tax expenses, does not prohibit taking into account exchange differences arising during their revaluation when taxing profits. In addition, the Tax Code of the Russian Federation does not contain restrictions on the inclusion in tax expenses of negative exchange rate differences that arose in connection with the revaluation of obligations to pay dividends (subclause 5, clause 1, Article 265 of the Tax Code of the Russian Federation).

Dividends to non-residents

As a general rule, dividends paid to individuals who are not tax residents of the Russian Federation are subject to personal income tax at a rate of 15% (clause 3 of Article 224 of the Tax Code of the Russian Federation). But only if the inspectors do not doubt that the income paid is really a dividend.

When can personal income tax be assessed?

Payments more often than quarterly. From a literal reading of the norms of civil legislation, it follows that a company has the right to pay dividends no more often than once a quarter, half a year, 9 months or based on the results of a financial year (clause 1, article 42 of Law No. 208-FZ and clause 1, article 28 of Law No. 14-FZ). In this regard, tax authorities often do not recognize monthly payments to participants made from net profit as dividends and regard the disputed amounts as wages. As a result, additional personal income tax is charged to the participant, as well as fines to the company - the tax agent.

But the courts do not agree with this. Thus, the FAS of the East Siberian District in its resolution dated 08/11/05 No. A33-26614/04-С3-Ф02-3800/05-С1 indicated that Article 43 of the Tax Code of the Russian Federation does not provide for the frequency of payments as the main feature of a dividend. This means that net profit distributed monthly for tax purposes is recognized as dividends, which are taxed at reduced rates. The FAS Moscow District in its resolution dated July 20, 2009 No. KA-A41/6492-09 (upheld by the ruling of the Supreme Arbitration Court of the Russian Federation dated December 18, 2009 No. VAS-13819/09) noted that even if the company paid dividends not monthly, but based on quarter or year, it would not affect the amount of its tax liability. In connection with this, the court did not see in the actions of the tax agent organization an offense under Article 123 of the Tax Code of the Russian Federation.

Dividends are not proportional to shares. As a general rule, the company distributes dividends in proportion to the shares of participants in the authorized capital (clause 2 of Article 28 of Law No. 14-FZ and clause 2 of Article 32 of Law No. 208-FZ). Moreover, according to paragraph 1 of Article 43 of the Tax Code of the Russian Federation, a dividend for tax purposes is any income received by a shareholder (participant) from an organization when distributing profits remaining after taxation in proportion to its shares in the authorized capital of this organization. In this regard, in the event of a disproportionate distribution of net profit, payments to company participants are not recognized as dividends for tax purposes (letter of the Ministry of Finance of Russia dated 07.30.12 No. 03-03-10/84, brought to the attention of local tax authorities by letters of the Federal Tax Service of Russia dated 08.16.12 No. ED-4-3/13610 and Federal Tax Service of Russia for the city dated 08.23.12 No. 16-03/078698@).

Untimely dividends paid. In practice, dividends are often paid to shareholders (participants) within a period exceeding the legally established 60 days. Considering this situation, the Ministry of Finance of Russia in letter dated September 19, 2011 No. 03-04-06/3-225 noted that violation of the dividend payment deadline does not affect the tax rate established for this type of income. Consequently, disputed amounts are subject to personal income tax at a rate of 15% (clause 3 and article 224 of the Tax Code of the Russian Federation).

Dividends to a former shareholder. It happens that at the time of making the decision on the distribution of profits, the shareholder was a participant in the company, but upon the actual payment of dividends he already left the membership (sold his share). In this case, local tax authorities believe that the amounts received are not dividends and are taxed at a general personal income tax rate of 30%.

However, the Ministry of Finance of Russia, in letter dated November 1, 2011 No. 03-04-05/3-826, expressed the opposite point of view. Thus, the financial department indicated that the date of actual payment of distributed dividends after the withdrawal of a participant from a limited company does not affect the tax rate established for this type of income. Consequently, the tax agent has the right to withhold tax at a lower rate.

Dividends from retained earnings from previous years. Neither civil law nor Article 43 of the Tax Code of the Russian Federation defines the period for receiving net profit, at the expense of which the company has the right to pay dividends. Consequently, the organization can distribute at the end of the current reporting period both the profit received in this period and the retained profit of previous years.

In letter dated March 20, 2012 No. 03-03-06/1/133, the Russian Ministry of Finance indicated that the company has the right to recognize payments from the profits of previous years as dividends. But provided that the funds from which dividends are planned to be paid are not used to form a reserve fund or a corporatization fund. It does not matter in what periods such retained earnings were formed.

Interim dividends. The Federal Tax Service of Russia takes the position that if a company has no profit at the end of the year, then the amounts distributed among individual participants based on the results of reporting periods are not dividends (letter dated March 19, 2009 No. ШС-22-3/210@) . Tax authorities point out that, within the meaning of paragraph 1 of Article 43 of the Tax Code of the Russian Federation, dividends are the income of a company participant when distributing profits remaining after taxation. And if the company suffered a loss, then the disputed payments are not recognized as dividends.

However, some courts have indicated in this regard that a company has the right to decide to pay dividends if there is profit in the tax period for which these dividends are accrued. Consequently, the status of the disputed amounts in this situation does not change (for example, resolution of the Federal Antimonopoly Service of the North-Western District dated 03.02.12 No. A66-3355/2011).

When can you save on personal income tax?

An international treaty may establish tax rates on dividends that are different from those in the Tax Code of the Russian Federation. Then international agreements apply (Article 7 of the Tax Code of the Russian Federation). The list of international treaties on the avoidance of double taxation signed by the Russian Federation is given in the letter of the Federal Tax Service of Russia dated January 15, 2009 No. BE-22-2/20@.

Thus, the Ministry of Finance of Russia, in letters dated October 3, 2012 No. 03-08-05 and dated August 21, 2008 No. 03-08-05, considered the procedure for taxation of dividends paid by a Russian organization to individuals who are tax residents of the United States and Israel. In these cases, the dividend rate will be 10%.

It is important to remember that in order to obtain an exemption from personal income tax, offset, receive tax deductions or other tax privileges, a non-resident must provide the tax agent with confirmation that he is a resident of a state with which a double tax treaty has been concluded during the relevant tax period ( Clause 2 of Article 232 of the Tax Code of the Russian Federation). In addition, it is necessary to obtain an application for taxation of income at a reduced rate or for exemption from the Russian Federation (letter from the Ministry of Finance of Russia dated 08.21.08 No. 03-08-05 and the Federal Tax Service of Russia for Moscow dated 06.10.08 No. 28-11/056333 “ On the procedure for paying personal income tax on income received by a foreign citizen").

A. Weinberg,
general counsel

In practice, most of the company's difficulties arise from questions of the legality of monthly payment of dividends, as well as accounting for postal and banking expenses associated with the payment of such amounts. In addition, tax authorities often challenge the “dividend” nature of payments if they do not correspond to their literal interpretation given in the Tax Code of the Russian Federation

In accordance with the Tax Code of the Russian Federation, a dividend is any income received by a shareholder (participant) from an organization when distributing profits remaining after taxation in proportion to the shares of shareholders (participants) in the authorized capital of this company.

The organization has the right to pay dividends based on the results of the first quarter, half-year, 9 months or financial year (Federal Law dated 02/08/98 No. 14-FZ “On Limited Liability Companies”, hereinafter referred to as , and Federal Law dated 12/26/95 No. 208-FZ “ About joint stock companies”, hereinafter - ). The procedure and timing of dividend payment are determined by the company's charter or a decision of the general annual (extraordinary) meeting of its participants (Article and Law No. 208-FZ, Article and Law No. 14-FZ). In this case, the period for paying dividends should not exceed 60 days from the date of the decision on the distribution of profits (Law No. 14-FZ and Law No. 208-FZ). Violation of such a deadline may not only result in administrative liability, but also lead to tax risks.

When paying dividends to individuals (including individual entrepreneurs), the company is recognized as a tax agent for personal income tax (and the Tax Code of the Russian Federation). At the same time, the taxation procedure depends on whether the recipient of the dividends is a resident or non-resident of the Russian Federation (see also the box below). In practice, companies often face difficulties when classifying certain amounts as dividends, as well as when taking into account the costs associated with their payment.

Courts do not agree with the reclassification of dividends if such amounts are paid more often than quarterly

From a literal reading of the norms of civil legislation, it follows that a company has the right to pay dividends no more than once a quarter, half a year, 9 months or based on the results of a financial year (Law No. 208-FZ and Law No. 14-FZ). In this regard, tax authorities often do not recognize monthly payments to participants made from net profit as dividends and regard the disputed amounts as wages. As a result, additional personal income tax is charged to the participant, as well as penalties and fines to the company - the tax agent.

But the courts do not agree with this. Thus, the FAS of the East Siberian District indicated that the Tax Code of the Russian Federation does not provide for the frequency of payments as the main feature of a dividend. This means that net profit distributed monthly for tax purposes is recognized as dividends, which are taxed at reduced rates.

If dividends are paid to an individual resident entrepreneur, then regardless of what tax regime he applies, the company withholds personal income tax at a rate of 9%

Disproportionally distributed net profit is not recognized as dividends

As a general rule, the company distributes dividends in proportion to the shares of participants in the authorized capital (Law No. 14-FZ and Law No. 208-FZ). Moreover, according to Article 43 of the Tax Code of the Russian Federation, a dividend for tax purposes is any income received by a shareholder (participant) from an organization when distributing profits remaining after taxation in proportion to its shares in the authorized capital of this organization. In this regard, in the case of a disproportionate distribution of net profit, payments to company participants are not recognized as dividends for tax purposes (brought to the attention of local tax authorities by letters and the Federal Tax Service of Russia for Moscow dated 08.23.12 No. 16-03/078698@).

The courts take a similar point of view. In particular, the Federal Antimonopoly Service of the North-Western District has repeatedly noted that payments within amounts proportional to the participant’s contribution are recognized as dividends and are taxed at a preferential rate of 9%. Accruals made in excess of such amounts are not recognized as dividends and are taxed at the usual rate for individuals of 13% (resolutions, and). Contains similar conclusions.

Official position

According to the Russian Ministry of Finance, the fact of late payment of dividends does not change the status of such amounts

In practice, dividends are often paid to shareholders (participants) within a period exceeding the legally established 60 days. Considering this situation, the Russian Ministry of Finance noted that violation of the dividend payment deadline does not affect the tax rate established for this type of income. Consequently, disputed amounts are subject to personal income tax at a rate of 9 or 15% (clause and article 224 of the Tax Code of the Russian Federation).

It is important to remember that failure to pay dividends on time entails the imposition of an administrative fine on officials - from 20,000 to 30,000 rubles, on legal entities - from 500,000 to 700,000 rubles. ()

The legality of accounting for costs associated with the payment of dividends will most likely have to be proven in court.

As a rule, the payment of dividends is accompanied by certain costs - postage, bank commission for transferring funds to the accounts of participants, etc. According to the financial department, the organization does not have the right to take such costs into account when calculating income tax. After all, dividends are paid out of the net profit remaining after taxation, and the company does not take such amounts into account when calculating income tax (). Accordingly, the payment of dividends is not an activity aimed at generating income for the company. In this connection, related expenses associated with the payment of dividends (including expenses for bank services, postal fees for transferring dividends), according to the Russian Ministry of Finance, are not included in the income tax base ().

The presence of legal disputes on this issue indicates that local inspectors agree with the opinion of the financial department and refuse companies to recognize disputed costs. In this case, the courts, as a rule, support taxpayers. Arbitrators' arguments: expenses must be documented and economically justified (). In the situation under consideration, the organization’s activities are aimed at generating income and are inextricably linked with the right of its participants to receive dividends (and the Civil Code of the Russian Federation). At the same time, the costs associated with the fulfillment of the duties assigned to the organization by law are justified from a tax point of view (resolutions of the Federal Antimonopoly Service, Volga Region and districts). In addition, the courts specify that postal costs and expenses for bank services related to the payment of dividends, the company can confirm, in particular:

— minutes of the annual meeting of shareholders of the organization;
— payment documents confirming the payment of dividends and the withholding of tax on these amounts;
— an agreement with the bank for the delivery of valuables (cash) and for cash management services;
— a memorial order confirming the transfer of money in payment for bank services for the delivery of valuables, cash withdrawal, etc.

Comptrollers oppose the inclusion in tax expenses of the cost of postal transfers when sending dividends by mail

According to the Federal Tax Service of Russia, the company has the right not to withhold personal income tax from the bank commission paid when transferring dividends to an individual’s bank card

Often, the company transfers dividends to the bank cards of individual participants. As a rule, banks charge a commission for such transfers. The Federal Tax Service of Russia indicated that in this situation, by transferring dividends to bank accounts, the company fulfills its obligation to ensure that participants (shareholders) receive income. The bank's services for transferring dividends are provided directly to the company, and payment for these services is made solely in its interests, and not in the interests of individuals receiving dividends. Accordingly, the bank's commission when paying dividends by bank transfer does not form the participant's income in kind, subject to taxation. The Federal Antimonopoly Service of the Volga-Vyatka District made similar conclusions.

Moreover, if the recipient of dividends is also an employee of the company, then, according to the Russian Ministry of Finance, the organization paying the dividends has the responsibilities of a tax agent. The Financial Department clarifies that services provided in the interests of an individual (paid in full or in part by third parties) are recognized as taxable income received in kind (). If an organization transfers amounts to employees’ bank cards, the payment of which is not established by labor legislation, the commission for servicing such cards is subject to personal income tax ().

The organization withholds personal income tax regardless of whether the addressee has received the dividends due to him

According to the Ministry of Finance of Russia, if an organization transfers amounts to employees’ bank cards, the payment of which is not established by labor legislation, the commission for servicing such cards is subject to personal income tax

Often in practice, companies transfer dividends by postal order. However, due to the absence of an addressee, the funds are returned back to the company’s account.

According to the Russian Ministry of Finance, when transferring income by postal transfer, the date of payment of income is determined on the day the transfer is made (). Indeed, according to the rules of the Tax Code of the Russian Federation, the day of receipt of income is the day of its actual payment (including its transfer to the account of the taxpayer or third parties). Thus, no later than the day following the day the postal transfer was made, the tax agent transfers to the budget the amount of tax withheld from the dividends paid (). The fact that dividends paid by postal transfer were subsequently returned to the organization’s current account does not matter for the tax agent’s fulfillment of the obligation to withhold personal income tax, which occurred at an earlier date.

A similar situation arises if a company transfers dividends to a bank for subsequent payment to shareholders in cash. In this case, the company withholds personal income tax from all amounts transferred to the bank and submits information on income according to the established procedure to the tax authority. In this case, the fact that the taxpayer-shareholder received or did not receive cash from the bank does not matter. The Russian Ministry of Finance pointed this out. If the taxpayer did not contact the bank to receive the dividends due to him, then the bank, upon expiration of the established period, returns the funds to the company’s account. When a shareholder applies directly to the company to receive dividends from which tax was previously withheld, and re-transfers funds to the bank or when paying them to the taxpayer, there is no need to send information to the tax authority.

Payments to a former shareholder are recognized as dividends if at the time of the decision on their distribution he still owned his share

It happens that at the time of making the decision on the distribution of profits, the shareholder was a participant in the company, but upon the actual payment of dividends he already left the membership (sold his share). In this case, local tax authorities believe that the amounts received are not dividends and are taxed at a general personal income tax rate of 13%.

Dividends to a US tax resident are taxed at a rate of 10%, since such a rate is provided for by international agreement

The Russian Ministry of Finance came to the conclusion that the payment of dividends from retained earnings of previous years is legal

Neither the civil legislation nor the Tax Code of the Russian Federation defines the period for receiving net profit, at the expense of which the company has the right to pay dividends. Consequently, the organization can distribute at the end of the current reporting period both the profit received in this period and the retained profit of previous years. For a long time, the Russian Ministry of Finance did not recognize as dividends payments to shareholders made from retained earnings of previous years (). At the same time, in some explanations, officials drew attention to the fact that the issue of accruing dividends to company participants from retained earnings does not at all fall within the competence of the Russian Ministry of Finance (letters, and).

But subsequently the position of the financial department changed. The Russian Ministry of Finance indicated that the company has the right to recognize payments from the profits of previous years as dividends. But provided that the funds from which dividends are planned to be paid are not used to form a reserve fund or a corporatization fund. In letters, the financial department confirmed that dividends paid to resident individuals from retained earnings of previous years are subject to personal income tax at a rate of 9% (). It does not matter in what periods such retained earnings were formed.

However, some companies mistakenly consider part of their own funds as retained earnings. Thus, the Federal Antimonopoly Service of the Moscow District confirmed that the company does not have retained earnings from previous years, since the disputed amounts were previously received free of charge from the founder and used to repay the loan. In the absence of retained earnings, the company was not entitled to pay dividends. As a result, the court came to the conclusion that the funds distributed between the participants are not dividends and are taxed at a personal income tax rate of 13%.

Paying interim dividends is risky from a tax perspective

The Federal Tax Service of Russia takes the position that if a company has no profit at the end of the year, then the amounts distributed among individual participants at the end of the reporting periods are not dividends and are taxed at a rate of 13% (). Tax authorities point out that, within the meaning of Article 43 of the Tax Code of the Russian Federation, dividends are the income of a company participant when distributing profits remaining after taxation. And if the company suffered a loss, then the disputed dividend payments are not recognized 1 .

When paying dividends to a non-resident, it is important to take into account the provisions of double taxation agreements

As a general rule, dividends paid to individuals who are not tax residents of the Russian Federation are subject to personal income tax at a rate of 15% (). If an international treaty establishes different tax rates on dividends (), then these are the rates that apply. The list of international treaties on the avoidance of double taxation signed by the Russian Federation is given in.

Thus, the Ministry of Finance of Russia, in letters, reviewed the procedure for taxation of dividends paid by a Russian organization to individuals who are tax residents of the United States and Israel. In these cases, the dividend rate will be 10%.

It is important to remember that in order to obtain an exemption from personal income tax, offset, receive tax deductions or other tax privileges, a non-resident must provide the tax agent with confirmation that he is a resident of a state with which a double tax treaty has been concluded during the relevant tax period ( ). In addition, it is necessary to obtain an application for taxation of income at a reduced rate or for exemption from paying tax in the Russian Federation (letter from the Federal Tax Service of Russia in Moscow dated June 10, 2008 No. 28-11/056333 “On the procedure for paying personal income tax on income received by a foreign citizen ").

The company has the right to take into account negative exchange differences arising when paying dividends in foreign currency in tax expenses

In practice, many companies (in particular, organizations with foreign investments) pay dividends in foreign currency. At the same time, in the author’s opinion, it is advisable to distribute profits in rubles, and then convert the required amount into foreign currency at the Bank of Russia exchange rate on the day of payment, securing the corresponding provision in the shareholders’ decision. At the same time, on the date of actual payment of dividends, the foreign currency exchange rate against the ruble may change, which will lead to negative exchange rate differences. According to local inspectors, the company has no right to take such amounts into account in tax expenses.

For a long time, this position of controllers was confirmed by arbitration practice. The courts noted that obligations to pay dividends can be expressed in foreign currency, but cannot go beyond the limits of net profit calculated in rubles (decrees of the Federal Antimonopoly Service of the Moscow District and).

1 On the procedure for taxation of interim dividends, see also the article “Tax subtleties of paying dividends in the middle of the year” // RNA, 2012, No. 18, p. 26.

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