Joint activity (simple partnership). Features of taxation of a simple partnership Advantages and disadvantages of all types of partnerships

A simple partnership is an association of two or more independent legal entities or individual entrepreneurs to conduct joint activities- achievements common purpose, the implementation of one or more major projects, the successful completion of which directly depends on the participation of each of the comrades - companies that have entered into a simple partnership agreement.

The uniqueness of a simple partnership agreement is that it allows not only to connect several companies with the goal of achieving a joint result, but also to be flexible enough to regulate the tax consequences of each of the companies.

To begin with, let's turn to the Civil Code of the Russian Federation, according to which, under a simple partnership agreement (a joint activity agreement), two or more persons (partners) undertake to combine their contributions and act jointly without forming legal entity to make a profit or achieve another purpose that does not contradict the law. Participants of a simple partnership agreement in the field entrepreneurial activity can only be commercial organizations and/or individual entrepreneurs.

Accordingly, they cannot participate in a simple partnership agreement non-profit organizations, municipalities, individuals without IP status.

As a contribution to joint activities, each of the participants can contribute any property, money, professional knowledge, skills and abilities. And even business reputation. Depending on the capabilities of each comrade and the specific goals of joint activities.

The contribution of each partner is subject to monetary value by agreement of the parties (with the exception of Money), the shares of each do not have to be equal, which allows you to redistribute the income received in favor of the person with the lowest tax rate.

Let us schematically depict the construction of a simple partnership agreement (joint activity).

At the same time, each of the comrades conducts the usual economic activity by concluding contracts, performing work, providing services, producing and/or selling goods. At the same time, nothing changes for third parties: participants in a simple partnership may not advertise the conclusion of such an agreement (the so-called silent partnership).

A clear managerial effect of using this contractual structure is achieved when:

Use of common property representing an indivisible object;

Implementation by independent companies of separate cycles of a single process (production, assembly, installation).

For example, a property is owned jointly by two or more persons, one of whom is not involved in operations. The conclusion of a simple partnership agreement will allow the second owner, as a partner conducting common affairs, to single-handedly conclude lease agreements, service agreements, etc., after which they will distribute already net income (“all income minus all expenses”) in favor of each of the owners in agreed proportions.

Another example. A trading and manufacturing company combines their contributions to carry out joint activities in the production of a specific type of product. Trade company at the same time, it purchases raw materials, sells finished products, conducts common affairs, records income and expenses and distributes profits between participants. The contribution of the manufacturing company will be manufacturing skills. Given that the tax base for calculating income tax in this case is not the entire amount of the sale of each company, but only the profit distributed in its favor, this significantly expands the possibilities for applying the simplified tax system. And if the joint activity is related to production food products, there may be an additional bonus in the form of a reduced STS rate “income minus expenses” and an insurance premium rate of 26% (instead of the usual 34% since 2011). V Sverdlovsk region for such companies it is 5%.

It is possible that one or more participants in a simple partnership will also carry out other activities that go beyond the scope of joint activities. In this case, separate accounting of income and expenses should be provided.

Another feature of this agreement is the absence of clear rules and requirements for accounting for the financial results of a simple partnership. Relevant Chapter Civil Code The Russian Federation contains mainly dispositive norms that make it possible to establish “other” in the agreement (starting from the assessment of the contribution to the joint activity, the distribution of the burden of incurring expenses and the share of participation in profits, to the establishment of the regime of ownership of the participants in the property contributed by each of them as a contribution).

PBU 20/03 "Information on participation in joint activities" is intended to establish the rules for reflecting the results of participation in joint activities in accounting. However, there are practically no clear rules in it. For example, even such an important issue as the distribution of labor costs for the employees of each of the comrades is at the mercy of the contracting parties.

In practice, joint activities are as follows: each of the comrades performs the function entrusted to him, including concluding expenditure contracts, and the comrade in charge of common affairs keeps records of absolutely all income and expenses, both on the basis of his own documents and on the basis of documents, presented by other friends. Income and expenses are accounted for on an accrual basis (requirement of clause 4, article 273 of the Tax Code of the Russian Federation).

At the end of the tax period, the comrade in charge of common affairs distributes financial results between all partners in proportion to the size of their contributions; it is this income that will be taken into account by the comrades for tax purposes, it is from it that it is necessary to pay income tax or a single tax under the simplified tax system.

In accordance with Article 174.1 of the Tax Code of the Russian Federation, all activities of a simple partnership are subject to value added tax, regardless of what taxation regimes are used by its participants. In other words: even if all participants in a simple partnership apply the simplified taxation system, all proceeds from joint activities will be subject to VAT. At the same time, there is also the right to apply tax deductions for VAT. But the already distributed profit of each of the participants will be taxed at the simplified tax rate.

It is noteworthy that VAT paid to their suppliers by "simplified" companies will also be deductible, which, when they manage independent activity impossible.

Thus, from the point of view of taxation, the considered construction of a simple partnership will allow:

To deduct all "incoming" VAT, including VAT paid by "simplifiers";

Take into account for tax purposes not the proceeds of each comrade, but the distributed (cleared from expenses) income, which significantly expands the reserves for the use of the simplified tax system (when calculating the maximum amount of income, not the proceeds are taken as the basis, but the distributed income, which is lower);

Optimize taxes on income by transferring part of the proceeds from a friend who pays income tax at a rate of 20% to fellow “simplifiers” who are payers of a single tax at rates of 5%, 10% or 15% (the establishment of reduced single tax rates under the simplified tax system is the prerogative of the subjects of the Russian Federation);

Optimize social payments, since a friend who applies the simplified tax system and implements production activities, may apply a premium rate of 26%.

Given the above advantages, the conclusion of a simple partnership agreement is often considered by the tax authority as an attempt to obtain an unreasonable tax benefit. At the same time, it is obvious that the conclusion of a simple partnership agreement also has a clearly expressed managerial effect, since it allows, with the help of a contractual instrument (and not in an administrative manner), to simultaneously satisfy essentially opposite needs: to provide independence to individual divisions and preserve business processes, guaranteeing successful completion of projects.

Under a simple partnership agreement, two or more persons undertake to combine their contributions and act jointly without forming a legal entity for profit or other purposes. The parties to such an agreement concluded for the implementation of entrepreneurial activities can only be:

• individual entrepreneurs;
• commercial organizations.

The parties to the agreement make their contribution to the common cause, for example, money, other property, professional and other knowledge, skills and abilities, and the contribution can be business reputation and business connections. Monetary valuation of deposits is made by agreement of the parties.

Each participant has the right to act on behalf of all partners, unless the agreement establishes that the conduct of business is carried out by individual partners or jointly by all parties to the agreement. At jointly administered affairs for the commission of each transaction requires the consent of all partners.

If a simple partnership agreement is connected with the implementation of entrepreneurial activities by its participants, the partners are jointly and severally liable for all common obligations, regardless of the grounds for their occurrence.

VAT and income tax

Features of determining the tax base for income received by participants in a simple partnership agreement are established by Article 278 of the Tax Code.

Partners are obliged to independently pay income tax in proportion to their share in the common property. A participant conducting common affairs informs each partner about the amount of profit distributed in his favor from activities under this agreement on a quarterly basis until the 15th day of the month following the reporting (tax) period (clause 3 of article 278 of the Tax Code of the Russian Federation).

At the same time, it should be remembered that the “profitable” base does not include the cost of contributions to a simple partnership (clause 3, article 270 of the Tax Code of the Russian Federation). The share of profit distributed in favor of a participant in a joint activity is reflected in non-operating income on the last day of the reporting (tax) period (clause 4, article 278 of the Tax Code of the Russian Federation). The parties to the agreement, in accordance with paragraph 3 of Article 286 of the Tax Code, must pay only quarterly advance payments based on profit for the reporting period.

It should be borne in mind that the losses of the partnership are not subject to distribution among the partners and are not taken into account by them when taxing (clause 4 of article 278 of the Tax Code of the Russian Federation).

At the same time, it should be remembered: participants in partnerships must keep separate records of operations for ordinary and joint activities. Thus, in the decision of the Federal Antimonopoly Service of the Far Eastern District of June 13, 2006 No. Ф03-А37 / 06-2 / 814, the judges indicated that in the absence of separate accounting for income and expenses, all proceeds and expenses will be taken into account when taxing profits.

With regard to value added tax, then you need to pay attention to the following. When concluding a simple partnership agreement, the participants must determine which of them will keep a general record of transactions subject to VAT. Tax reporting to the inspection at the place of registration must be submitted by a friend responsible for common affairs. As stated in letter No. 10-3-13/3159-4698 dated 07.08.2001 of the Ministry of Taxation of Russia, Chapter 21 of the Tax Code does not provide for the submission of a separate tax return for sales of goods in joint activities.

Thus, the participant conducting business is obliged to calculate and pay VAT on all proceeds from the sale of goods (works, services) under a simple partnership agreement. In the presence of invoices issued by sellers and executed in the prescribed manner, the partner has the right to accept VAT for deduction.

Moreover, the metropolitan tax authorities in a letter dated 10/17/2006 No. 19-11 / 90800 noted that if another participant (non-acting taxpayer) is indicated as a buyer in invoices issued by suppliers, then the counterparty needs to make corrections to the document.

Accounting of the parties to the agreement

The procedure for recording joint operations in accounting is regulated by PBU 20/03. At the end of the reporting period, the financial result obtained from activities under a simple partnership agreement is distributed among the participants in the manner prescribed by the agreement (clause 19 PBU 20/03).

A partner who conducts common business compiles and presents to others the information necessary for the formation of reporting, tax and other documentation (clause 20 PBU 20/03). At the same time, the property received from other comrades on the credit of account 80 “Contributions of comrades” to the debit of accounts 01, 10, etc., is credited to a separate balance sheet.

As for the other parties to the agreement, they include their property contributed as a contribution to financial investments at the cost at which they are reflected in the balance sheet at the time the agreement enters into force. At the same time, the partner reflects the operation associated with the transfer of property to joint activities, an entry on the debit of account 58 “Financial investments”, subaccount 58-4 “Deposits under a simple partnership agreement” and the credit of the corresponding accounts 01, 10, etc.

When forming the financial result, the participants include in the composition of other income (expenses) profit (losses) on joint activities to be received or distributed among the partners.

"Simplified" comrades

Companies operating on the simplified tax system can also be participants in a simple partnership agreement. At the same time, paragraph 3 of Article 346.14 of the Tax Code establishes that these comrades must apply income reduced by the amount of expenses as an object of taxation. Thus, "simplified" firms that pay income tax are not entitled to participate in joint activities. This was recalled by specialists of the financial department in a letter dated 02.04.2007 No. 03-11-05/56.

The Tax Code establishes special rules for the payment of VAT when carrying out operations under a simple partnership agreement. Thus, according to Article 174.1 of the Tax Code, a participant in a partnership, including a “simplifier”, is recognized as a payer of value added tax. Thus, a company applying the simplified tax system cannot use VAT exemption in this case. This point of view was expressed more than once by financiers (letter of the Ministry of Finance of Russia dated February 21, 2006 No. 03-11-04 / 2/49). However, there is another point of view on this matter. So, the Tax Code establishes only one restriction for comrades using the simplified tax system - the choice of the object of taxation. There are no other restrictions. And the provisions of Article 174.1 of the Tax Code apply only for the purposes of Chapter 21 of the Code, that is, they apply only to VAT payers, which the “simplifiers” are not. This position is also shared by the judiciary (decisions of the Federal Antimonopoly Service of the West Siberian District dated December 4, 2006 No. F04-7977 / 2006 (28867-A27-34), dated October 26, 2006 No. F04-7200 / 2006 (27937-A27-7), dated 20.09.2006 No. Ф04-6040/ 2006 (26514-А27-14)).

However, to argue with the tax authorities in 2008, the comrades who have been transferred to the “simplified” system will not succeed. After all, the Law of May 17, 2007 No. 85-FZ established that participants in a simple partnership agreement that maintain general accounting must pay VAT on joint operations. Therefore, if a firm (individual entrepreneur) applying the simplified tax system keeps a general record of the partnership’s operations, then it must transfer tax to the budget in relation to the partnership’s operations in the generally established manner, and can also deduct input VAT on goods, work, services purchased in in accordance with the said agreement.

Many firms that use the simplified tax system are concerned about the question of whether they should keep accounting for joint activities. After all, organizations that have switched to a simplified taxation system are exempt from accounting (clause 3, article 4 of the Law of November 21, 1996 No. 129-FZ). However, the financial department, in its explanations, claims that this privilege cannot be used when conducting joint activities. Letter No. 22-2-16/8195-ak185 dated 06.10.2003 of the Ministry of Taxation of Russia states that when organizations and individual entrepreneurs applying the USN are combined into a simple partnership, accounting for common property and business transactions should be kept in accordance with accounting rules. Thus, if a partner applies the "simplification" and maintains a separate balance sheet, he must make accounting entries, and reflect the results of joint activities in the Book of Income and Expenses.

Expert of the company "Garant" S.V. Granovskaya

The procedure for creating a simple partnership and the regulation of its activities are established by Chapter 55 of the Civil Code of the Russian Federation. Usually, joint shared construction by legal entities and citizens of buildings, structures, residential buildings is carried out on the basis of a joint activity agreement. In this case, the agreement may have different names: an agreement on participation in shared construction, an agreement on equity participation, an agreement on joint activities, etc. But in the presence of the above signs, such an agreement, as a rule, is regarded as a simple partnership agreement.

Agreement about equity participation in construction may contain conditions, features, signs and elements of other types of contracts - then it can be qualified as a mixed contract. The relations of the parties under such an agreement will be applied in the relevant parts of the rules on contracts, the elements of which are contained in a mixed agreement (including the rules on a simple partnership agreement in the part regulated by this type of obligations). Moreover, unless otherwise provided by the parties to the agreement or does not follow from the essence of the mixed contract (clause 3, article 421 of the Civil Code of the Russian Federation).

According to Article 1041 of the Civil Code of the Russian Federation, under a simple partnership agreement (agreement on joint activities), two or more persons (partners) undertake to combine their contributions and act jointly without forming a legal entity to make a profit or achieve another goal that does not contradict the law.

Article 1043 of the Civil Code of the Russian Federation establishes that the property contributed by the comrades, which they possessed by right of ownership, as well as the products produced as a result of joint activities and the fruits and income received from such activities are recognized as their common shared property. Moreover, unless otherwise established by law or a simple partnership agreement, or does not follow from the essence of the agreement.

There are a number of indispensable conditions for functioning in a joint activity.

1. Only individual entrepreneurs and (or) commercial organizations can be participants in joint activities. It should be noted that paragraph 2 of Article 1041 of the Civil Code of the Russian Federation regulates the procedure for creating a simple partnership for the purpose of carrying out entrepreneurial activities, and the Law "On investment activities carried out in the form of capital investments", in addition to the goals of making profit (that is, entrepreneurial activity), provides for the possibility of achieving investment agreements of other beneficial effect. For example, obtaining an apartment in the property for personal and family use. However, these types of contracts will not be regulated by civil law, like all investment contracts.

2. The second feature of a joint activity is the fact that the property contributed as a contribution to the joint activity is owned by its participants.

3. Each partner is entitled to a share of the profits from the implementation of joint activities and bears the risk of losses associated with the implementation of such activities.

4. It is supposed to maintain a separate balance sheet reflecting the property and the state of the general affairs of a simple partnership.

The legal regime of a joint activity agreement (simple partnership agreement) is subject to general provisions civil legislation on contracts and obligations (Section III of part one of the Civil Code of the Russian Federation), and specific rules established by chapter 55 of part two of the Civil Code of the Russian Federation.

The scope of application of the simple partnership agreement is quite wide. This is explained as a simplified procedure for creating a partnership (two or more persons can unite and act jointly without forming a legal entity, and therefore without state registration such an agreement), and its universality (an agreement can also serve entrepreneurial, other civil law relations, which in their content involve joint activities of the parties in order to achieve some common goal).

Article 1041 of the Civil Code of the Russian Federation contains a definition of an agreement on joint activities, the analysis of which allows us to name a number of mandatory features of this agreement:

a) association of two or more persons;

b) the merger does not lead to the formation of a legal entity;

c) association is associated with the personal participation of each of the comrades in joint activities;

d) for joint activities, comrades make and combine their contributions;

e) an association is created to make a profit or achieve another goal that does not contradict the law (joint construction of a house, road, participation in the privatization of an enterprise, etc.).

A simple partnership agreement can be both closed and open for signing. As a result of the presence of a simple partnership agreement open for signing, an unlimited number of participants can cooperate within the framework of one agreement. A clear advantage of a joint venture agreement is certain tax concessions. Thus, by virtue of the provisions of subparagraph 4 of paragraph 3 of Article 39 and subparagraph 12 of paragraph 2 of Article 149 of the Tax Code of the Russian Federation, property contributions of partners made under a simple partnership agreement are not recognized as sales and are not subject to value added tax. The allocation of the share contributed by the partner upon his withdrawal from the partnership within the limits of the initial contribution is also not subject to VAT. Thus, the participants in joint activities are granted the right not only to make monetary contributions, but also material and property investments, while there are no tax consequences.

The property transferred as a contribution may belong to a partner by the right of ownership or be in his temporary use or disposal. The partners' contributions are assumed to be equal in value, unless otherwise follows from the simple partnership agreement or actual circumstances. The monetary value of a partner's contribution is made by agreement between the partners.

Contributions of partners with property belonging to a partner by right of ownership, as well as products produced as a result of joint activities and fruits and incomes received from such activities are recognized as their common shared property, unless otherwise established by law or a simple partnership agreement or does not follow from the essence of the obligation. The property contributed by the comrades, which they possessed on grounds other than the right of ownership, is used in the interests of all the comrades and, along with the property in their common ownership, constitutes the common property of the comrades.

The use of the common property of comrades is carried out by their common consent, and in case of failure to reach an agreement - in the manner established by the court. The obligations of partners in maintaining common property and the procedure for reimbursement of expenses associated with the performance of these obligations are determined on the basis of an agreement.

Decisions relating to the common affairs of the comrades are taken by the comrades by common agreement, unless otherwise provided directly by the contract.

A feature of a simple partnership agreement is that in the conduct of common affairs, each partner has the right to act on behalf of all partners, unless the simple partnership agreement establishes that the conduct of business is carried out by individual participants or jointly by all participants in the simple partnership agreement. When doing business together, each transaction requires the consent of all partners.

When making transactions with third parties within the framework of joint activities, a partner must act on the basis of a power of attorney issued to him by other partners, or a simple partnership agreement concluded in writing. Partners are not entitled in relations with third parties to refer to restrictions on the rights of one of them (who made the transaction) to conduct the common affairs of partners, unless they prove that at the time of the conclusion of the transaction the third party knew or should have known about the existence of such restrictions.

A partner who has made transactions on behalf of all partners in respect of which his right to manage the common affairs of partners has been limited, or who has concluded transactions in the interests of all partners on his own behalf, may demand compensation for expenses incurred by him at his own expense. However, provided that there were sufficient grounds for believing that these transactions were necessary in the interests of all comrades. Partners who have suffered losses as a result of such transactions have the right to demand their compensation.

Each comrade, regardless of whether he is authorized to conduct the common affairs of comrades or not, has the right to get acquainted with all documentation on the conduct of affairs. Therefore, in the contract it is necessary to establish in advance the deadlines for submission and the amount of information necessary for the formation of reporting, tax and other documentation for each of the comrades. Waiver of the right to information or its restriction, including by agreement of partners, is invalid. The injured party may at any time apply the consequences of the invalidity of a void transaction (Articles 166-168 of the Civil Code of the Russian Federation).

The general expenses and losses of partners are covered in the manner determined by the agreement of the parties, and in its absence - in proportion to the value of his contribution to the common cause. At the same time, none of the comrades can be completely exempted from participating in covering general expenses or losses (Article 1046 of the Civil Code of the Russian Federation).

If a simple partnership agreement is not related to the implementation of entrepreneurial activities by its participants, each partner is liable for general contractual obligations with all his property in proportion to the value of his contribution to the common cause. For general obligations that did not arise from the contract (for example, for obligations to compensate for the joint infliction of harm), the comrades are jointly and severally liable (Articles 322-325 of the Civil Code of the Russian Federation).

If the simple partnership agreement is connected with the implementation of entrepreneurial activities by its participants, the partners are jointly and severally liable for all common obligations, regardless of the grounds for their occurrence. Liability of partners for non-fulfillment or improper fulfillment of obligations to each other also occurs according to general rules(Chapter 25 of the Civil Code of the Russian Federation). Participants in a private partnership are liable with all their property for transactions with third parties that each of them concluded on their own behalf in the common interests of the comrades. The internal relations between the participants in a tacit partnership are based on the principle of community of obligations that arose in the course of their joint activities (Article 1054 of the Civil Code of the Russian Federation).

The distribution of profits received by partners as a result of their joint activities is distributed in proportion to the value of the partners' contributions to the common cause, unless otherwise provided by a simple partnership agreement or other agreement of the partners. An agreement on the elimination of any of the comrades from participation in profits is void (Article 1048 of the Civil Code of the Russian Federation).

The creditor of a participant in a simple partnership agreement under an obligation not related to joint activities is entitled to submit a claim for the allocation of his share in the common property for subsequent levy of execution on it in accordance with Art. 255 of the Civil Code of the Russian Federation. Let us assume that the allocation of a share in kind is impossible or the other participants in shared or joint ownership object to this. In such a situation, the creditor has the right to demand that the debtor sell his share to the other participants in the common property at a price commensurate market value this share, with the circulation of proceeds from the sale of funds to repay the debt.

If the other participants in the common property refuse to acquire the debtor's share, the creditor shall have the right to demand in court that the debtor's share in the common property right be foreclosed by selling this share with public auction. The procedure for foreclosure on the debtor's property by sale at a public auction is regulated by Art. 447-449 of the Civil Code of the Russian Federation.

A simple partnership agreement is terminated in the event of the withdrawal of one of the participants for reasons of liquidation, recognition as incapable, partially incapacitated, death, bankruptcy, and the like, unless otherwise provided by agreement between the other partners or the agreement (for details, see Article 1050 of the Civil Code of the Russian Federation). One of the grounds for termination of the contract is the expiration of its validity. The agreement is terminated in its entirety. If the contract is of an unlimited nature (concluded without specifying a period), any of the partners has the right to declare this to others no later than three months before the expected withdrawal from the contract (Article 1051 of the Civil Code of the Russian Federation). Such a withdrawal should be considered as a refusal to further fulfill the contract, and the contract is considered terminated in relation to the withdrawn person (clause 3, article 450 of the Civil Code of the Russian Federation).

The Agreement may be terminated at the request of one of its parties, if:

It has been substantially violated by the other party (the violation has caused or will cause such damage to the other party that it is largely deprived of what it was entitled to count on when concluding the contract) in accordance with Article 450 of the Civil Code of the Russian Federation;

The initiator of the termination has the serious reason, which makes it difficult for him to further participate in the contract (difficult financial situation, etc.). This condition is valid if the contract was concluded with an indication of the purpose of the contract as a resolutive condition (Article 1052 of the Civil Code of the Russian Federation). In this case, the initiator is obliged to compensate the rest of the partners for the real damage caused by the termination of the contract.

It is important to keep in mind that if the withdrawal of one of the partners did not lead to the termination of the contract, then the person whose participation in the contract has ceased is liable to third parties for the general obligations that arose during the period of his participation in the contract. At the same time, this person fulfills obligations as if he remained a participant in a simple partnership agreement by virtue of the provisions of Article 1053 of the Civil Code of the Russian Federation. The type and amount of liability are determined in accordance with the rules of Article 1047 of the Civil Code of the Russian Federation.

The division of the common property of the participants after the termination of the contract depends on the legal basis the property was transferred or was in possession. If it belongs to comrades on the basis of common shared ownership, its division is carried out in accordance with the rules of Article 252 of the Civil Code of the Russian Federation. At the same time, an individually defined thing brought by a partner into common property may be claimed back by him. The court, when deciding on the transfer of such a thing, is obliged to take into account property claims against a partner from other participants, as well as creditors. Things transferred to the common property not on the right of ownership, after settlements with creditors, must be returned to their owners.

In this article, I.A. Baymakova, an expert on tax issues, considers a simple partnership agreement from the point of view of its tax consequences. The material indicates both the advantages of this type of contract, and some of the limitations that characterize it, which must be borne in mind when formalizing civil law relations using a simple partnership.

paragraph 1 of Art. 1041 of the Civil Code of the Russian Federation

Tax Code of the Russian Federation

dated 17.05.2007 No. 85-FZ in the Tax Code of the Russian Federation, paragraph 2 of Article 346.26 of the Tax Code of the Russian Federation

Tax Code of the Russian Federation dated May 14, 2008 No. 03-11-05 / 123. The letter noted that .

RF Tax Code dated June 20, 2006 No. 03-11-02/144 paragraph 2 of Article 346.26 of the RF Tax Code

paragraph 3 of Art. 278 of the Tax Code of the Russian Federation).

Tax Code of the Russian Federation

Advantages of a simple partnership agreement

Each organization is looking for ways to optimize taxation. We can talk about three main legal methods to reduce the tax burden, which include:

• civil law regulation, i.e. the choice of the type of contract;
• choice of taxation system;
• thoughtful formation of the accounting policy of the organization in terms of taxation.

Within the framework of this article, we will consider the question: is it possible to "save on taxes" when applying a simple partnership agreement (an agreement on joint activities). Recall that this agreement (clause 1, article 1041 of the Civil Code of the Russian Federation) provides for the connection of deposits and the joint activities of two or more persons (partners) in order to make a profit or achieve another goal that does not contradict the law. In this case, a new legal entity is not formed.

Despite the simplicity of the legal structure of a simple partnership agreement, the use of this form of agreement allows you to "bypass" some of the restrictions provided for by the Tax Code of the Russian Federation. These restrictions include the obligation application of UTII and the established limit on the amount of income in terms of the application of the simplified tax system.

A way to avoid the use of UTII

From January 1, 2008, the Federal Law of May 17, 2007 No. 85-FZ introduced clause 2.1 into the Tax Code of the Russian Federation, providing that the UTII system does not apply to the types of business activities specified in clause 2 of Article 346.26 of the Tax Code of the Russian Federation, if they are carried out within the framework of simple partnership agreements. This provision is quite natural, because the association of persons to participate in joint activities does not lead to the formation of a legal entity and such an association cannot be an independent UTII payer.

It should be noted that in some cases this provision of the Tax Code of the Russian Federation can be considered as a way to "avoid" the use of UTII. One such case (retailing individual entrepreneurs on the basis of an agreement on joint activities) is considered in the letter of the Ministry of Finance of Russia dated May 14, 2008 No. 03-11-05 / 123. The letter noted that "business activity retail auto parts and chemicals in a store, carried out under a joint venture agreement, is not subject to transfer to the taxation system in the form of a single tax on imputed income and must be taxed under the general taxation regime or in accordance with the simplified taxation system".

Regarding the application of UTII under a simple partnership agreement, it can be recalled that until January 1, 2008, the norm in question was absent in the Tax Code of the Russian Federation and during 2003-2005 the Russian Ministry of Finance gave conflicting explanations addressed to an indefinite circle of persons. This circumstance was reflected, for example, in the letter of the Ministry of Finance of Russia dated June 20, 2006 No. 03-11-02 / 144, in connection with which the department found it possible not to recalculate tax liabilities for 2003-2005. Undoubtedly, if the taxpayer carries out only part of the activity under a simple partnership agreement, and the rest of the activity is aimed at independently generating income and is named in paragraph 2 of Article 346.26 of the Tax Code of the Russian Federation, then within the framework of such "independent" activity, the taxpayer is obliged to apply UTII, provided that this special taxation system introduced in the region.

For example, if the taxpayer contributes a part of the property he owns advertising structures in a simple partnership, in relation to the transferred advertising structures, the general taxation regime should be applied, and in relation to the rest - UTII. Such an explanation is given in the letter of the Ministry of Finance of Russia dated 08.12.2009 No. 03-11-06 / 3/286.

Restriction on the income limit when applying the simplified tax system

Recall that the income of a partner in the case of concluding an agreement on joint activities is profit, which is distributed in favor of the participant based on the results of the partnership. The amount of income is determined by the comrade conducting common affairs, and quarterly informs each comrade about it (clause 3 of article 278 of the Tax Code of the Russian Federation).

For example, as part of the activities under a simple partnership agreement of two partners (with equal contributions), proceeds from the sale of goods (works, services) of 50 million rubles were received, while the costs amounted to 45 million rubles, respectively, the profit to be distributed is 5 million rub. Consequently, a part of the income in the amount of 2.5 million rubles will be reflected in the income of each of the comrades. With this method of generating income, it is easier to comply with the income limit established by the Tax Code of the Russian Federation, above which the right to use the simplified tax system is lost.

However, each method of "optimization" of taxation may be of increased interest to the tax authorities. In this case, the decision of the FAS is of interest Central District dated May 20, 2010 in case No. A35-2717 / 09-C21. It follows from the case materials that during the tax audit, the inspectors concluded that the concluded simple partnership agreements are "imaginary initially formal and aimed at creating artificial conditions for the use of a simplified taxation system by" splitting "income", which resulted in a significant additional charge of taxes and the appeal of the organization to the court. Among the evidence presented, in addition to conducting real financial and economic activities, the following can be distinguished:

• according to the terms of simple partnership agreements, their goal was to extract economic benefits or income jointly with other organizations and to strive for maximum profit at minimum current and capital costs;
• the terms of the agreements establish the combined amount of the contribution, the share and structure of the types of contribution of each partner;
• contracts define the procedure for conducting common affairs, including: coordination of actions of comrades; negotiating with third parties on issues of joint activities, execution and storage of documentation related to joint activities; providing comrades with information about the progress of common affairs; representation of the common interests of comrades before other organizations, institutions and citizens, etc.;
• the parties to the agreement developed and approved the procedure and documents for accounting for joint activities;
• quarterly, each participant submitted a report, which reflected all income from joint activities and all expenses incurred;
• the results of the distribution of profits, which were to be received by each participant, were recorded in the minutes.

Member Restrictions

However, in addition to the benefits for participants in a simple partnership agreement, there are some restrictions.

The choice of the object of taxation for persons applying the simplified tax system

From January 1, 2006, when applying the simplified tax system, taxpayers who are parties to a simple partnership agreement (agreement on joint activities) can apply as an object of taxation only income reduced by the amount of expenses (clause 3 of article 346.14 of the Tax Code of the Russian Federation). That is, a participant in a simple partnership is not entitled to apply the simplified tax system with the object "income".

It should be noted that the decisions of arbitration courts indicate a different position. For example, in the resolutions of the Federal Antimonopoly Service of the North-Western District of June 5, 2008 No. A21-7850/2007, the Federal Antimonopoly Service of the Ural District of April 10, 2007 No. Ф09-2404/07-С3 concluded that a taxpayer applying the USN has the right to change the object of taxation starting from the period when the partnership agreement was concluded.

Thus, in the event that a simple partnership agreement is concluded by a taxpayer using the simplified tax system with the object "income" and disagreeing with the position of the Ministry of Finance of Russia on the need to switch to a general taxation regime, you may have to defend your position in court.

Inability to account for partnership losses

When considering the question of the advisability of concluding a simple partnership agreement, it should be especially taken into account that, according to paragraph 4 of Article 278 of the Tax Code of the Russian Federation, losses received under a simple partnership agreement are not distributed among its participants and are not taken into account when taxing them. Accordingly, the partners do not have the right to carry forward the loss to the future.

In addition, when a simple partnership agreement is terminated and property is returned to the participants in this agreement, the negative difference between the valuation of the returned property and the valuation at which this property was previously transferred under the simple partnership agreement is not recognized as a loss for tax purposes.

Thus, the "negative result" of activities under a simple partnership agreement can never be taken into account.

The impossibility of applying the cash method

The investment activity agreement provides for a wider range of participants, including investors, which include individuals and legal entities created on the basis of a joint activity agreement and not having the status of a legal entity, associations of legal entities, government bodies, local governments, as well as foreign business entities, customers, contractors, users of capital investment objects and other persons, i.e., the circle of persons who are participants in investment activities is wider.

There is also a difference in terms of contributions. Within the framework of the investment agreement, the investor has the right to independently determine the volumes and directions of capital investments.

Under a simple partnership agreement, contributions are assumed to be equal in value, unless otherwise follows from a simple partnership agreement or actual circumstances. In this case, the monetary value of the contribution of a friend is made by agreement between the partners (clause 2 of article 1042 of the Civil Code of the Russian Federation).

Also distinctive feature of a simple partnership agreement is the fact that the property contributed by the partners, which they possessed by right of ownership, as well as the products produced as a result of joint activities and the fruits and income received from such activities are recognized as their common shared property, unless otherwise provided by law or a simple partnership agreement or does not follow from the essence of the obligation (clause 1 of article 1043 of the Civil Code of the Russian Federation), and the obligations for the maintenance of common property and the procedure for reimbursement of expenses associated with the fulfillment of these obligations are determined by a simple partnership agreement (clause 4 of article 1043 of the Civil Code of the Russian Federation). In addition, the norms of civil law define special provisions regarding the conduct of common affairs of comrades, accounting and the procedure for covering expenses and losses.

When carrying out investment activities, it should be noted that, according to paragraph 1 of Article 8 of the Law on Investment Activities, relations between the subjects of investment activities are carried out on the basis of an agreement and (or) a state contract concluded between them in accordance with the Civil Code of the Russian Federation.

An example demonstrating the differences between a simple partnership agreement and an investment activity agreement is given in the letter of the Ministry of Finance of Russia dated December 15, 2009 No. 03-11-06 / 3/290. The letter clarified that in the event that participants in shared ownership operate in the form of a shopping center for the transfer to temporary possession and (or) use of trading places in this mall, built within the framework of an investment activity agreement that is not a simple partnership agreement (joint activity agreement), the restrictions provided for participants in a simple partnership agreement, including in terms of applying the taxation system in the form of UTII, do not apply.

Similar explanations are given in the letters of the Ministry of Finance of Russia dated December 30, 2009 No. 03-22-04 / 2/154, dated December 29, 2008 No. 03-11-05 / 316.

The procedure for calculating taxes when carrying out activities under a simple partnership agreement

For a clearer understanding of the features of taxation when carrying out activities under a simple partnership agreement, we single out three main stages of such activities:
Stage 1- conclusion of an agreement and consolidation of contributions of participants;
Stage 2- implementation of activities, formation of financial results and distribution of income;
Stage 3- termination of activities, return of deposits.

The simplest situation occurs at the stages of making and returning deposits.

In terms of making contributions by the founders, it should be taken into account that in accordance with subparagraph 4 of paragraph 3 of Article 39 of the Tax Code of the Russian Federation, the transfer of property is not recognized as the sale of goods, works or services if such transfer is of an investment nature, including contributions under a simple partnership agreement (agreement on a joint activities).

Accordingly, expenses in the form of a contribution to a simple partnership are not taken into account when determining the tax base for profit (clause 3, article 270 of the Tax Code of the Russian Federation).

When making contributions in the form of fixed assets, goods, materials that were purchased with VAT, it is important to remember that the provisions of paragraph 3 of Article 170 of the Tax Code of the Russian Federation oblige participants in joint activities that contribute with inventory items, including fixed assets and intangible assets, to restore previously submitted amounts of VAT in accordance with the procedure established by Article. Moreover, the restored amount of VAT is subject to accounting when calculating income tax.

When returning deposits, it should be remembered that when determining the tax base, income in the form of property, property rights and (or) non-property rights having a monetary value, which are received within the limits of the contribution by a participant in a simple partnership agreement (joint activity agreement) or his legal successor in in the event of the separation of his share from the property that is in the common ownership of the parties to the agreement, or the division of such property (subclause 5, clause 1, article 251 of the Tax Code of the Russian Federation).

Property received upon exit from a joint activity is not included in the income of a partner within the limits of the contribution made earlier (subclause 5, clause 1, article 251 of the Tax Code of the Russian Federation). A certain ambiguity in the legislation arises if there is a positive difference between the value of the property returned to the comrade and the value of the property transferred earlier as a contribution. The Tax Code of the Russian Federation does not regulate the procedure for determining the value of property received upon withdrawal of a comrade from the membership of a simple partnership agreement. According to the author, it seems logical to determine the value of property based on the market value or according to the rules agreed by the participants in the simple partnership agreement, and take into account the positive difference that has arisen as part of non-operating income. The application of this procedure for accounting for a positive difference is reflected in the letter of the Federal Tax Service of Russia for Moscow dated 10.10.2007 No. 20-12 / 096643.

A similar problem in the case of a positive difference arises in terms of VAT. Recall that upon withdrawal of a participant in a simple partnership agreement, the transfer of property within the initial contribution to a participant in a simple partnership agreement (joint activity agreement) or his successor in the event of separation of his share from the property that is in common ownership of the participants in the agreement, or the division of such property is also not recognized. sale of goods (works, services) (subclause 6, clause 3, article 39 of the Tax Code of the Russian Federation). If the value of the transferred property exceeds the amount of the contribution, then, according to the Ministry of Finance of Russia, set out in letters dated 08.27.2008 No. 03-07-11 / 287 and dated 05.05.2008 No. 03-07-07 / 50, from the excess conducting common affairs, must charge VAT and issue an invoice to a friend.

It is more interesting to look at the procedure for accounting and taxation when carrying out activities under a simple partnership agreement.

The peculiarities of taxation under a simple partnership agreement (joint activity) are due to the fact that in the course of such activity a new legal entity is not formed, and in accordance with the provisions of the Tax Code of the Russian Federation, in the overwhelming majority of cases, it is the legal entity that is the taxpayer. A person who is not an individual or does not have the status of a legal entity is not considered as a taxpayer for any of the taxes.

value added tax

For the first time, the legislator drew attention to the need to determine the procedure for calculating VAT in 2005 (Federal Law No. 119-FZ of July 22, 2005, taking into account changes made by Federal Law No. 108-FZ of June 30, 2008), when "Peculiarities of calculation and payment in tax budget when carrying out operations in accordance with a simple partnership agreement (agreement on joint activities), an agreement on trust management of property or a concession agreement on the territory of the Russian Federation.

With regard to VAT, it must be taken into account that, in accordance with paragraph 1 of Article 174.1 of the Tax Code of the Russian Federation, the obligations of the taxpayer for VAT are assigned to the participant of the partnership. Consequently, when selling goods (works, services), transferring property rights in accordance with a simple partnership agreement (agreement on joint activities), a partnership participant is obliged to issue the appropriate invoices in the manner established by the Tax Code of the Russian Federation.

When carrying out activities under a simple partnership agreement, maintaining general accounting operations is assigned to the participant of the partnership, which can be both Russian organization and individual entrepreneur.

We can distinguish the following two main rules that must be observed when carrying out activities under a simple partnership agreement:

1. A VAT deduction is provided only to a participant in a partnership who is entrusted with accounting for transactions under this agreement. In this case, invoices must be issued only in the name of this participant.

2. It is necessary to organize the obligatory organization of keeping separate records of the participants of the partnership by a partner who maintains a general record of operations. Clause 3 of Article 174.1 of the Tax Code of the Russian Federation determines that the right to a deduction arises only if there is a separate accounting for goods (works, services), including fixed assets and intangible assets, and property rights used in carrying out operations in accordance with a simple partnership agreement (agreement on joint activities) and used by him in the implementation of other activities. In the documents of the partnership, as well as in the order on the accounting policy of the participant maintaining the general accounting of operations, it is advisable to fix the basic principles for organizing separate accounting in accordance with the rules provided for in paragraph 4 of Article 170 of the Tax Code of the Russian Federation.

income tax

Unlike VAT, income tax is paid by each participant of a simple partnership independently. To do this, the financial result of the joint activity is determined and the income received is distributed in favor of the taxpayer. These incomes are classified as non-operating and are recognized on the last day of the reporting (tax) period. This procedure is provided for by paragraph 9 of Article 250 of the Tax Code of the Russian Federation and subparagraph 5 of paragraph 4 of Article 271 of the Tax Code of the Russian Federation.

Recall that in accordance with Article 1048 of the Civil Code of the Russian Federation, the profit received by the partners as a result of their joint activities is distributed in proportion to the value of the partners' contributions to the common cause, unless otherwise provided by the simple partnership agreement or other agreement of the partners.

Features of determining the tax base, based on income received by participants in a simple partnership agreement, are determined by Article 278 of the Tax Code of the Russian Federation. The most important points to note are:

• if at least one of the participants in the partnership is a Russian organization, or individual who is a tax resident of the Russian Federation, the accounting of the income and expenses of such a partnership for tax purposes must be carried out by the Russian participant, regardless of who is entrusted with managing the business of the partnership in accordance with the agreement;
• determination of income and expenses is carried out on an accrual basis based on the results of each reporting (tax) period;
• on the amounts of income due (distributed) to each participant in the partnership, the participant in the partnership who keeps records of income and expenses is obliged to report quarterly by the 15th day of the month following the reporting (tax) period;
• losses of the partnership are not distributed among its participants and are not taken into account when taxed by them.

Corporate property tax

The situation with the calculation and payment of property tax looks quite simple. In accordance with the provisions of paragraph 1 of Article 377 of the Tax Code of the Russian Federation, each participant in a simple partnership agreement shall calculate and pay tax both in relation to the property transferred to them in joint ownership, and in relation to a part of the property acquired and (or) created in the course of joint activities. The share of such property is determined in proportion to the value of the contribution of comrades to the common cause.

The person keeping records of the common property of the partners is obliged to report information on the residual value of the property constituting the common property of the partners, as well as on the share of each participant. This information must be communicated to the participants of a simple partnership no later than the 20th day of the month following the reporting period.

Tax postulates of a simple partnership agreement: results

Based on the above analysis of a simple partnership agreement from the point of view of taxation features, we can say that there are both minuses and pluses for carrying out activities within the framework of this type of contractual relationship. According to the author, the application of this type of contract requires a clear coordination of the actions of all comrades - parties to the contract and a higher qualification of the organization's accountant, who keeps records of income received and expenses incurred under this contract.

A simple partnership (PT) is formed on the basis of an agreement. This is a form of the subject, to which special requirements are imposed.

The concept and goals of a simple partnership

A simple partnership is formed between two or more parties. At the same time, a legal entity is not formed. In the process, the contributions of the participants are combined. Consider the goals of organizing a simple partnership:

• Conducting joint activities.
• Extraction of profit.
• Cost optimization.
• Tax optimization.
• Other purposes that do not contradict the law.

The listed items, as well as the definition of PT, are set out in Article 1041 of the Civil Code of the Russian Federation. Consider the basic features of a simple partnership:

• Two or more members.
• Consolidation of contributions of participants, which can be used as money, property and even professional experience. As a rule, the contributions of the parties are equal. However, they may not be equivalent if the corresponding condition is included in the contract. All conditions for the use of property are also established by the agreement. All aspects relating to common property are set out in Article 1043 of the Civil Code of the Russian Federation.
• Joint activity of all participants. This aspect is regulated by Article 1044 of the Civil Code of the Russian Federation. One member can act on behalf of the entire entity.
• The purpose of forming a simple partnership is to make a profit. If the purpose of the existence of the PT is precisely this, the agreement must provide for the conditions for the distribution of funds. If the document does not specify specific conditions for the distribution of funds, the profit is distributed among the participants in equal shares.

FOR YOUR INFORMATION! The procedure for covering losses of the PT, on the basis of Article 1046 of the Civil Code of the Russian Federation, is stipulated by the agreement. If nothing is specified in it, the participants cover the losses in proportion to their contributions. The document cannot contain a condition that one of the parties is not liable for losses. If such a condition is written, the agreement is considered null and void.

IMPORTANT! The parties to a simple partnership can only be individual entrepreneurs or legal entities.

Property of a simple partnership

Contributions and property in the PT are closely related. For this reason, it makes sense to analyze these concepts together. The contributions of all participants are considered equal. The exception is the actual inequality of contributions or the corresponding clause included in the agreement. The concept of a contribution within the framework of a simple partnership is set out in Article 1042 of the Civil Code of the Russian Federation. This is a fairly broad concept. Investments can mean:

• physical property;
• financial resources;
• skills and professional skills;
• professional connections.

Non-physical objects (skills, connections, etc.) are intellectual property and are regulated by Article 138 of the Civil Code of the Russian Federation. Consider the basic features of deposits:

• The contributions are evaluated by the PT participants themselves. Experts and appraisers are not invited for this. That is, the assessment of contributions is quite subjective. In this aspect, the participants will act at their own discretion.
• The parties to a simple partnership may make unequal contributions.
• The shares of the parties may be determined not on the basis of an agreement, but on the basis of the law. For example, participants in the PT acquired real estate in their ownership. The property is distributed in accordance with the contributions of the parties.
• The agreement must specify the size of the shares. If there is no corresponding clause, the contract can be considered void on the basis of Article 167 of the Civil Code of the Russian Federation.
• The product of the PT's activity is considered joint property, unless otherwise stipulated by the agreement.

IMPORTANT! A participant in a simple partnership may contribute as a contribution not only his own property, but also objects belonging to him by right of lease, contracts for gratuitous use.

Advantages and disadvantages

A simple partnership has the following advantages:

• Ease of organization.
• Expansion of financial opportunities.
• Joint business management.
• An association financial resources, skills and business connections.
• The absence of redundant procedures in the formation of a partnership.
• Risk reduction.

However, a simple partnership also has disadvantages:

• The likelihood of disagreements between participants.
• Each member is liable for the debts of the partnership, regardless of who caused them.
• Responsibility for misconduct PM.
• Difficulty in the division of property in the liquidation of the partnership.

It makes sense to create a simple partnership only if the goals of all participants are agreed. The highest risk in the formation of PT is the occurrence of disagreements and conflicts.

Taxation of a simple partnership

The current activities of a simple partnership will be subject to VAT in accordance with the rules set forth in Article 174.1 of the Tax Code of the Russian Federation. Keep records, on the basis of which VAT is calculated, must be a participant who is responsible for the conduct of common affairs. If there is a non-resident in the simple partnership, the records must be kept by a person with Russian citizenship. A person must form for transactions for which VAT is charged. The partnership receives the right to a tax deduction of VAT amounts on objects that are purchased for joint activities. This paragraph is specified in paragraphs 2 and 3 of Article 174.1 of the Tax Code of the Russian Federation.

VAT is charged in the standard way. The account is divided. That is, the property and operations that relate to the activities of education should be reflected in the autonomous balance sheet. The procedure for organizing separate accounting is determined by the participants independently. Agreements reached should be included in . The easiest way to separate accounting is to organize it in an autonomous database. The declaration must be submitted by the person who must organize the accounting.

The creation of the tax base is stipulated by Article 278 of the Tax Code of the Russian Federation. Within the framework of tax calculation, the transfer of property by the parties in the form of a contribution is not considered a sale. Income generated as a result of the company's activities should be included in the composition. They are tax deductible. Losses will not be taken into account when calculating taxes.

The content of the simple partnership agreement

As mentioned earlier, the PT is formed on the basis of a contract. Consider the main points that are indicated in the agreement:

• Obligations of participants to make contributions, maintain property, and maintain accounting records.
• The rights of participants in the use of property, participation in the management of affairs, familiarization with documents. The agreement can indicate the right of one of the legal entities to conduct business.
• The contribution of each of the parties and its evaluation.
• Responsibility for debts and actions of the PT.

On the basis of the agreement, the participant may be vested with the right to conclude transactions on behalf of the entity.

Termination of the activities of a simple partnership

PT ceases to operate under certain circumstances:

• Declaring one of the parties to the PT incompetent.
• Recognition of a participant as missing.
• Declaring one of the legal entities bankrupt.
• Death of one of the parties.
• Liquidation or reorganization of a legal entity.
• Cancellation of the participant from the PT.
• Expiration of the duration of the agreement.

If a participant refuses an indefinite document, a corresponding application must be made no later than 3 months. You need to provide it to other participants. You need to prepare in advance for the exit procedure from the PT. In general, it is quite simple to stop the activity of education.