Exit from LLC: taxes and tax consequences
Almost any action in the field of entrepreneurial activity is the basis for the occurrence of tax consequences. Exiting a participant from an LLC is no exception. This fact raises a number of tax issues for both the exiting participant and the remaining participants and the company itself. Let's consider such consequences in more detail.
1. Personal income tax for a member leaving the company.
The exercise by a participant of a company of the right to withdraw from it is one of the cases when such a participant receives taxable income.
Compensation paid against the actual value of the share of the withdrawn participant forms taxable income. Since when a participant leaves the company on the basis specified in Art. 26 of the Law N 14-ФЗ “On limited liability companies”, the sale of a share in the authorized capital of a legal entity does not take place, the income of an individual in the form of the actual value of the share is subject to personal income tax withholding by the tax agent the tax on the full amount of income without deducting expenses associated with receipt of these incomes.
In other words, the taxpayer is not entitled to take into account the costs associated with paying a share in the authorized capital, since such a right arises only in case of sale of a share, and not when leaving the company (Letter of the Federal Tax Service of Russia dated 05/11/2005 N 02-3-07 / 136 @).
Participants should keep in mind that if the owner of the share, in order to minimize tax obligations, tries to sell the share not by leaving the company, but by selling it, he must take into account the possibility of claims from the tax authority, including the risk of the tax authority re-qualifying the relevant transactions and additional charges of tax, penalty and penalty to him (Resolution of the Arbitration Court of the Moscow District of 15.12.2014 N Ф05-13557 / 2014).
2. Personal income tax and income tax for the remaining participants in the company - individuals and legal entities.
The question of personal income tax and income tax arises when distributing the share of a private trader left among the remaining participants in the company in proportion to their shares. The Tax Code does not provide an unambiguous answer to this question.
There are two points of view:
1. when distributing the share of the participant who left the LLC in proportion to the shares of the remaining participants of the participants of taxable income for the purposes of calculating income tax and personal income tax does not arise.
2. The position of the Ministry of Finance of Russia is the opposite of the one voiced, so the first point of view is likely to have to be defended in court.
3. Income tax for the company in case of refusal of the participant to receive the actual value of the share.
A participant applying for withdrawal from the company may refuse to receive the actual value of the share - the current legislation does not provide for a ban on such a refusal.
A refusal to receive the actual value of a share must be in writing. Only with the availability of relevant supporting documents will the company be able to correctly reflect this procedure in accounting. In addition, the possibility of a legal dispute with the tax authority is not ruled out.
The funds remaining at the disposal of the company as a result of the participant’s refusal to receive the actual value of the share are received free of charge. Such property will constitute non-operating income of the company, which should be included in the tax base for corporate income tax. The grounds for using the benefits provided for in paragraphs. 11 p. 1 Article 251 of the Tax Code of the Russian Federation, in this situation, no.
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