How to calculate shares of direct or indirect participation in a controlled foreign company. Problems of determining the interdependence of persons on the basis of direct and (or) indirect participation of one organization in another Effective share of participation

There are several “classical” ways to calculate the direct and indirect participation of a company in the capital of another company. In addition, the Russian Ministry of Finance proposed a methodology for such calculation in special cases.

When determining interdependencies for purposes of Section V.I, a firm should give consideration to interests in other entities 1 . The calculation of shares depends on the type of participation and has some features. There are corporate interdependence (with direct and indirect participation) and special cases of participation.

Corporate interdependence
Direct participation
Direct participation is the direct participation of one person in the capital of another, determined in the following ways.

Calculation of the share of voting shares of another organization directly owned by the company (applicable for joint-stock companies)

According to the Tax Code, in order to recognize the parties as interdependent, the amount of direct (direct) or indirect participation of one party in the capital of the other must be more than 25 percent. In this case, the parties can be recognized as interdependent regardless of such share of participation

The share of voting shares is determined according to the list of persons entitled to participate in the general meeting of shareholders, compiled on the basis of data from the register of shareholders for the last general meeting preceding the date of determination of interdependence. However, not every common or preferred share can be voting and, therefore, participate in the calculation. The concept of a voting share is absent in, so let’s turn to the norms of civil law. According to the Law on JSC 2, a voting share is an ordinary or preferred share, giving the shareholder (its owner) the right to vote when resolving an issue put to vote at the general meeting of shareholders. At the same time, owners of ordinary shares have the right to participate in the general meeting of shareholders with the right to vote on all issues within their competence 3, and owners of preferred shares have the right to vote only in limited cases 4. The emergence of their voting rights depends on the issue submitted for consideration at the general meeting of shareholders, or on whether a decision was made to pay them the appropriate amount of dividends.
If the owners of preferred shares do not have the right to participate in the general meeting of shareholders with voting rights, their preferred shares will not be considered as voting, subject to documentary confirmation of this circumstance. A document confirming that preferred shares are not recognized as voting is the decision of the last general meeting of shareholders on full payment of dividends on preferred shares 5 . Therefore, non-voting preference shares should not be included in the interdependence calculation (see example below).

Example
OJSC Aktiv owns 75% of the authorized capital of CJSC Passive, which is 100% of ordinary shares. The remaining shareholders own 25% of Passiv's authorized capital. Their shares are preferred shares without voting rights at the general meeting of shareholders. Consequently, for the purposes of determining the share of participation of one organization in another when creating a consolidated group of taxpayers, the share of “Active” accounts for 100% of the voting shares of “Passive”.

The JSC Law also establishes other cases when a share does not provide voting rights and, accordingly, is not voting. For example, a share belongs to the founder, but is not fully paid (unless otherwise provided by the charter of the joint-stock company).

Calculation of the directly owned share of one company in the authorized (share) capital (fund) of another (applicable for limited liability companies (LLC), business partnerships and partnerships)
This method is simpler than the method of calculating the share of voting shares and corresponds to the ratio of the nominal value of the share of one legal entity in the authorized capital of another legal entity (see example below) 6 .

Example
The authorized capital of Passiv LLC is 80 million rubles. The nominal value of the share of Aktiv LLC is 20 million rubles. Accordingly, the share of direct ownership of “Asset” is:
20 million rub. : 80 million rub. x 100% = 25%.

The share of such participation can be confirmed by extracts from the Unified State Register of Legal Entities, copies of constituent documents, lists of LLC participants containing the necessary information.
Calculation of the share determined in proportion to the number of participants in another organization (if the share of voting shares (share in the authorized capital) cannot be determined) - applicable for joint-stock and shared forms of ownership
A situation where the share of voting shares (share in the authorized capital) cannot be determined is likely when a dispute arises about the number of voting shares owned by shareholders, or about the size of shares in the authorized (share) capital (fund) of the organization owned by its participants.

Example
We determine the share in proportion to the number of company participants:

• if there is one participant, the size of his direct participation is 100%;
• if there are two participants, the size of the direct participation share of each of them is 50%;
• three participants - 33.3%;
• four participants - 25%, etc.

Indirect participation
To determine the share of indirect participation of one company in another 7, first, all sequences of participation through the direct participation of each previous organization in each subsequent one are established. Next, the shares of direct participation of each previous company in each subsequent one are determined in the appropriate sequence. The share of indirect participation (in relation to a particular sequence) is determined as the product of the shares of direct participation of each previous organization in each subsequent one. Then the products of the shares of direct participation of one organization in another of all sequences are summed up.
Note that the indirect participation of one company in another can take two independent forms (see example below): sequential indirect participation (see Fig. 1) and parallel indirect participation (see Fig. 2). Adding shares is possible only with the second option.

Example
The size of the share of participation of organization A in organization B for transactions for which income was received both before 01/01/2012 and after is calculated as follows:
1. Determine the sequence of participation A-B-C-D.
2. We multiply the shares of direct participation of each previous organization in each subsequent one:
AB x BC x CD = 35 x 57 x 16 = 3.19%.
It is obvious that the formula used here for calculating the share of participation is similar to that established in the Tax Code of the Russian Federation.
If several independent sequences of participation of one company in another are determined, the products of the shares of direct participation of one organization in another of all sequences are summed up 8 .
We calculate the share according to the algorithm:
1. We identify two sequences: A-B-C-D and A-E-D.
2. We determine the shares of direct participation of each previous organization in each subsequent one according to each sequence: A-B-C-D - 50%, 90%, 75%; A-E-D - 75% and 25%.
3. Multiply these shares within each sequence and get the result for the first sequence:
50 x 90 x 75 = 33.75%,
for the second:
75 x 25 = 18.75%.
4. Let's summarize the results:
33,75 + 18,75 = 52,5%.
This is the share of indirect participation of organization A in organization D. It exceeds 25%. Therefore, organizations A and D are interdependent.

Note that summing up the products of sequences of participation only in the case of parallel participation does not directly follow from the Tax Code. This may create difficulties in practice and cause disputes with regulatory authorities.

Special cases
According to the Tax Code 9, in order to recognize the mutual dependence of persons, the influence that may be exerted by the participation of one person in the capital of others in accordance with the concluded agreement or with another ability of one person to determine the decisions made by other persons is taken into account. At the same time, the Russian Ministry of Finance explains 10 that when calculating the share of participation, the following options for direct and indirect participation of another organization in the company’s equity capital must be taken into account: the presence of its own shares (stakes) in the ownership of the company, “cross” participation of companies in each other’s capital, “ring” possession.

Availability of your own shares (shares) in the ownership of the company
Own shares acquired by a company not in connection with a decrease in its authorized capital are not taken into account when calculating the share of participation of another company in it for the purpose of determining interdependence, since they are not voting, including do not provide voting rights, are not taken into account when counting votes on them dividends are not accrued and they must be sold at a price not lower than their market value no later than one year from the date of their acquisition 11 (see example below).

Example
OJSC Aktiv owns 65% of the authorized capital of CJSC Passive. The remaining 35% belongs directly to Passiv.
For the purposes of determining the share of participation of one organization in another, the share of “Aktiv” accounts for 100% of the shares of “Passive” 12.

A similar rule, according to the Russian Ministry of Finance, applies to LLC shares 13.

"Cross" participation of companies in each other's capital
Cross shareholding can be defined as a set of corporate legal relationships as a result of which two joint-stock companies own shares of each other and, thus, through mutual ownership participate in their own share capital (see example below).

Example
JSC 1 creates JSC 2, whose shares it pays for with its own. As a result, JSC 2 receives ownership of the shares of JSC 1. JSC 1 receives ownership of the shares of JSC 2 based on the results of registration of the issue of the newly created company (JSC 2). The authorized capital of JSC 1 can be either equal or greater than the authorized capital of JSC 2.

"Ring" possession
“Ring” ownership is a situation when the parent company owns subsidiaries that, through the chain, control large blocks of shares of the parent company.
In cases of “cross” or “ring” ownership (mutual ownership), the procedure for determining direct (indirect) participation in an organization, in the opinion of the financial department, is similar to the procedure for determining the share of indirect participation established by the Tax Code. In this case, it is necessary to mathematically transform the share of direct participation of one company in another in the following order:
1) determination of the share of indirect participation of the company in equity capital;
2) distribution of this share to external owners in proportion to their shares in the capital.
This mathematical transformation is based on the geometric progression formula (see examples below).

Example
The geometric progression formula in this case is as follows:
Cdb = Аdb: (1 – Aab x Aba) , Where

Cdb- actual share of participation of organization D in organization B,
Adb - direct share of participation of organization D in organization B.
Thus, the actual participation of organization D in the capital of organization B is:
45% : (1 – 50% x 40%) = 56%.
Following the logic of the Russian Ministry of Finance, the share of indirect participation of organization D in the capital of organization A is:
56 x 40 = 22.4%.

Example
In order to simplify the procedure for calculating the actual share of participation, an inverse matrix can be used, which can be found using the following formula:

N = (E – A)–1 , Where

N - result matrix, which reflects the actual share of the company’s participation in other organizations (inverse matrix);
A - a matrix that reflects the direct share of the company’s participation in other organizations;
E - identity matrix (a diagonal matrix in which all diagonal elements are equal to 1).

Taxpayers entering into transactions between related parties are required to notify the tax authorities of controlled transactions they completed in 2012 by November 20, 2013. Despite the fact that there are still more than two months left before the deadline for submitting these reporting forms, their submission to the Federal Tax Service has already started. The Tax Service has received and is currently analyzing the first 200 notifications of controlled transactions. This was stated by the head of the transfer pricing and international cooperation department of the Federal Tax Service D.V. Volvach, the portal fedresurs.ru reported with reference to Interfax.

According to D.V. Volvach, the tax service’s software currently allows you to receive electronic files with notifications of controlled transactions of any size. He noted that based on the results of processing notifications received by the Federal Tax Service, a risk analysis system should be proposed that will allow selecting some transactions as objects of price control. Attention will be drawn to those notifications and those transactions that, in the opinion of controllers, will have signs indicating an understatement of the tax base and tax evasion.

Control over transfer prices

Transfer prices are internal prices at which settlements are made within a group of companies or between other interdependent entities to redistribute the tax burden in order to reduce it overall. Due to the significant reduction in tax revenues as a result of transfer pricing, the fiscal authorities of most countries closely monitor it.

Characterizing the world experience in regulating transfer prices, Volvach D.V. noted that the presence of a standardized notification form developed by the Federal Tax Service creates advantages for Russian taxpayers over foreign ones, since other states do not yet have a uniform form.

In the area of ​​transfer pricing regulation, Russian legislators are guided, among other things, by the recommendations of the Organization for Economic Cooperation and Development (OECD). The main document in this area is the OECD Guidelines on Transfer Pricing for Transnational Corporations and Tax Authorities, which approves the so-called “arm's length” principle, that is, the recalculation of transactions with related parties as if they were carried out on arm's length terms with independent counterparties. In Russian tax legislation, this principle is spelled out in paragraph 1 of Art. 105.3 of the Tax Code of the Russian Federation, which states that if the conditions for a transaction between interdependent persons differ from the conditions for its conclusion between independent counterparties, then taxes are imposed on all income of the interdependent parties to the transaction that were not received as a result of such a difference.

According to D.V. Volvach, the OECD has proposed a plan aimed at countering the transfer of company income to offshore companies. The fifth part of this plan is devoted to improving the rules for controlling transfer pricing. One of the areas for improvement is, in particular, the standardization of reporting documentation.

The Ministry of Finance gave clarifications on the preparation of notifications

As the deadline for submitting notifications approaches, regulatory authorities began to issue more clarifications on their preparation. Thus, the Ministry of Finance in Letter No. 03-01-18/33535 dated August 16, 2013, considered a number of topical issues: how to establish the interdependence of a bank with its counterparties in cases of direct and indirect participation, how the criterion of the amount of income is applied when recognizing transactions as controlled, what transitional provisions valid until January 1, 2014 regarding the submission of notifications, etc.

Credit institutions began to contact the financial department for clarification on the application of Section V.1 of the Tax Code of the Russian Federation, which regulates pricing rules for tax purposes of income from transactions between related parties. The Ministry of Finance noted that these rules presuppose, first of all, the application of the “arm's length” principle, generally accepted in world practice.

The interdependence of participants in transactions is determined in accordance with Art. 105.1 and 105.2 of the Tax Code of the Russian Federation. According to Art. 105.1 of the Tax Code of the Russian Federation, persons can be recognized as interdependent due to the participation of one person in the capital of another and in cases where one person can influence the decision-making of another person. In addition, individuals can independently recognize themselves as interdependent, and also be recognized as such by a court decision.

Participation in capital: direct and indirect

Mutual dependence of persons arises if the share of participation of one person in another exceeds 25%. Participation in this can be direct or indirect. Indirect participation occurs when it is carried out through third parties. Art. 105.2 of the Tax Code of the Russian Federation establishes the procedure for determining the share of participation of one person in the capital of another. The share of direct participation, the Ministry of Finance explained in the Letter, can be determined in three ways. Firstly, according to the share of voting shares of another organization directly owned by an organization or individual. Secondly, according to the directly owned share in the authorized capital. And, thirdly, if it is impossible to use the first two methods (i.e. if it is impossible to establish such shares), for a share directly owned by one organization or individual, determined in proportion to the number of other participants in the capital of another organization.

The Ministry of Finance drew the attention of taxpayers to the fact that in order to determine the share of direct participation, it is necessary to have information on all voting shares of the organization: both ordinary and preferred. Let us remind you that according to Art. and Federal Law No. 208-FZ of December 26, 1995 “On Joint-Stock Companies,” ordinary shares give their owners the right to participate in the general meeting of shareholders and vote on any issues, while preferred shares do not give the right to vote at the general meeting. However, owners of preferred shares receive this right in the event of resolution of certain issues (for example, liquidation of the company). If there is documentary evidence that preferred shares are not voting, they will not be taken into account when determining the direct interest. Such confirmation, as indicated by the Ministry of Finance, is the decision of the last general meeting of shareholders on the full payment of dividends on preferred shares.

According to the financial department, if it is possible to determine the share of direct participation in several of the above ways, then for tax purposes the maximum share is taken.

The procedure for determining the share of indirect participation is established in clause 3 of Art. 105.2 Tax Code of the Russian Federation. First, all sequences (“chains”) of direct participation and the shares of direct participation of each previous organization in each subsequent one for each “chain” are determined. Then the shares of direct participation in each chain are multiplied and the final results are summed up.

The Ministry of Finance recommends paying special attention to the following difficult situations that may arise when determining the interdependence of participants in transactions: the organization’s ownership of its own shares, “cross” participation of organizations in each other’s capital, “ring” ownership, in which the organization indirectly participates through chains of participation in other organizations in own capital.

Determination of the amount criterion for recognizing transactions as controlled

Transactions between related parties are considered controlled if they meet certain criteria listed in Art. 105.14 Tax Code of the Russian Federation. The most important criterion for recognizing transactions as controlled is the amount of income received from them during the reporting year. The amount criterion is established for the following types of transactions: transactions in the field of foreign trade in commodity commodities; transactions in which one of the parties is a resident of an offshore territory; transactions in which all participants are residents of the Russian Federation, subject to certain conditions. The last group includes transactions involving payers of the unified agricultural tax, UTII, mineral extraction tax, as well as beneficiaries of corporate income tax.

The Ministry of Finance recommends that in order to determine compliance with the sum criterion for recognizing transactions as controlled, one should sum up the income received during the calendar year from transactions with each interdependent counterparty. Accordingly, the fact of exceeding the threshold value is also established based on the totality of transactions with each counterparty. Situations cannot be excluded when the summation of income received will have to be carried out not for one counterparty, but for a group of persons. This is true, for example, for transactions involving more than two parties.

A number of taxpayer incomes are not taken into account when determining the amount criterion for recognizing transactions as controlled. For example, income included in the tax base for income tax, but not recognized as a result of transactions. The Ministry of Finance in Letter No. 03-01-18/33535 dated August 16, 2013 included in such income: unrealized exchange rate differences, positive differences from the revaluation of precious metals by banks, income from equity participation (dividends), etc. The amounts of fines and other sanctions under contracts are also not are taken into account when determining the amount criterion, except in cases where they are specifically established so that the transaction is not considered controlled.

Until January 1, 2014, the requirements for filing a notification of controlled transactions are in effect taking into account the provisions of Law No. 227-FZ. According to paragraph 7 of Art. 4 of this law, a notification is submitted if the amount of income from transactions with one person or several of the same persons exceeds 100 million rubles for 2012, and 80 million rubles for 2013.

The Ministry of Finance concludes that during the transition period 2012-2013. a transaction may be controlled, but there may be no obligation to submit a notification in relation to it, and provisions on the preparation of documentation by taxpayers and on the inspection of the Federal Tax Service on transactions may not apply.

Our company’s proposals for generating notifications of controlled transactions

Company " OVIONT INFORM» offers three options for software solutions for preparing notifications of controlled transactions in electronic form for sending to the tax authorities. Information on such transactions, as a rule, is already contained in the taxpayer’s accounting programs and databases, and software allows you to generate an electronic file for sending, automating and simplifying the process of its preparation as much as possible for the user.

One of the main problems with generating notifications is the large volumes of data that large companies will need to enter into the document. First of all, this concerns section 1B of the notification, which reflects information about the subjects of controlled transactions. The choice of the appropriate software solution from those offered by our company depends on the amount of data to be filled in:

Option 1. Approximately up to 200 entries in Section 1B about the subjects of transactions, which can be entered manually into the Balance-2W program.

The next two options involve first obtaining a data table with information for notification of controlled transactions selected from the taxpayer's accounting programs in a standardized form for the software offered below.

Option 2. Approximately up to 3 thousand records in Section 1B on the subjects of controlled transactions: it is proposed to use the Balance-2W program and its mechanisms for transferring a standardized table with notification data via the clipboard, performing group modes for assigning values ​​and posting information to notification sections.

Option 3. More than 3 thousand entries in Section 1B about the subjects of controlled transactions. A separate specialized program is used to process such data.

In addition, we offer our clients services for finalizing and preparing electronic files of notifications of controlled transactions.

Determining the share of direct participation of one organization in another is necessary to establish the interdependence of persons for the purposes of application transfer pricing control and definitions controlled debt <*> .

One of the main criteria for recognizing persons as interdependent is the presence of a share of direct and (or) indirect participation of one organization in another at least 20% <*> .

The share of participation of one organization in another organization is determined as a percentage using the following formula<*> :

When determining direct participation shares one organization in another organization, 3 cases can be distinguished<*> :

1. Direct participation interest is recognized share of shares owned by one organization in another organization.

If an organization owns shares of a joint stock company (JSC), this means that it has a direct stake in the JSC.

The authorized capital of a joint-stock company should not be lower than the minimum value (the minimum is determined based on the base value (BV)). In addition, the number of shareholders in a closed joint-stock company is limited<*> :

There are promotions:

- simple (ordinary),

- privileged.

Preferred shares (their share <= 25%) may be produced in one or more types. Types of preferred shares differ in the scope of the rights they certify and can be either “voting” or “non-voting”<*> .

Attention!
In Art. 20 Tax Code does not stipulate categories (types) of shares. In this regard, for the purpose of determining the interdependence of persons, the calculation of the share of direct participation includes All promotions regardless of category and type.

Example. Calculation of the share of direct participation in a joint stock company

The authorized capital of CJSC “A” is 20,000 rubles. and divided:

— for common (ordinary) shares — 160 pcs. with a nominal value of 100 rubles. for a total amount of 16,000 rubles;

— preferred shares — 20 pcs. with a nominal value of 200 rubles. for a total amount of 4000 rubles.

The shares are distributed among shareholders as follows:

When calculating direct participation shares in CJSC “A”, both ordinary and preferred shares of the owners are taken into account:

2. Direct participation interest is recognized a share owned by one organization in the authorized capital (CF) of another organization. In particular, this applies to cases where an organization has made a contribution to the MF of a business entity (LLC, ALC) or acquired a share in the MF.

The minimum size of a private limited company for LLCs and ALCs is not established by law, but there is a limit on the number of participants - there should not be more than 50<*> :

The share of direct participation of the organization in the management of the economic society ( LLC, ODO) can be determined according to the statutory documents of the economic company. If it is expressed in %, then no additional calculations are required. If in monetary terms, then a simple mathematical calculation is carried out:

Example. Calculation of the share of direct participation in an LLC

The authorized capital of LLC "A" consists of contributions from three participants and amounts to 2,500 rubles, including ALC "B" contributed 1,200 rubles to the Fund, CJSC "S" - 800 rubles, ALC "D" - 500 rubles.

The shares of direct participation in % in MF LLC “A” will be:

ODO "B" - 48% (1200 / 2500 x 100);

CJSC "S" - 32% (800 / 2500 x 100);

ODO "D" - 20% (500 / 2500 x 100).

3. A direct participation interest is a share owned by one organization, determined in proportion to the number of participants in another organization. This calculation is carried out if it is impossible to determine the share of shares or share in the UV.

Example. Calculation of the share of direct participation in a business entity in proportion to the number of participants

The authorized capital of the economic company is divided between three participants.

When calculating the share of direct participation in proportion to the number of participants, each of them will have a share in the business entity in the amount of 33.3% (1/3 x 100).

Attention!
Not only organizations, but also individuals can be founders. They are also subject to the specified rules for determining the share of direct participation in the organization.

The Federal Tax Service, by letter dated July 2, 2013 No. OA-4-13/11912, brought to the attention of the tax authorities a letter from the Ministry of Finance on the procedure for determining the share of participation of legal entities and individuals in an organization with a view to recognizing them as interdependent for tax purposes. The letter discusses specific situations that must be taken into account when determining interdependence.

General provisions

Recognition of persons as interdependent and the procedure for determining the share of participation of one organization in another organization from January 1, 2012 is carried out on the basis of the provisions of Articles 105.1 and 105.2 of the Tax Code of the Russian Federation.

According to Article 105.1 of the Tax Code of the Russian Federation, in order to recognize the mutual dependence of persons, the influence that may be exerted is taken into account:

Due to the participation of one person in the capital of other persons;

In accordance with the agreement concluded between them;

If there is another possibility for one person to determine the decisions made by other persons.

In this case, the procedure for determining the share of participation of one organization in another organization is established by Article 105.2 of the Tax Code of the Russian Federation.

In accordance with paragraph 3 of Article 105.2 of the Tax Code of the Russian Federation, the share of indirect participation of one organization in another organization is recognized as a share determined in the following order:

1) all sequences of participation of one organization in another organization are determined through the direct participation of each previous organization in each subsequent organization of the corresponding sequence;

2) the shares of direct participation of each previous organization in each subsequent organization of the corresponding sequence are determined;

3) the products of the shares of direct participation of one organization in another organization through the participation of each previous organization in each subsequent organization of all sequences are summed up.

These rules also apply when determining the share of participation of an individual in an organization.

Availability of own shares (shares) owned by the organization

If you have your own shares (shares) owned by the organization, you must take into account that, in accordance with clause 3 of Art. 72 of the Federal Law of December 26, 1995 No. 208-FZ “On Joint-Stock Companies,” shares acquired by the company do not provide voting rights, they are not taken into account when counting votes, and dividends are not accrued on them.

A similar rule applies to limited liability companies: according to paragraph 1 of Art. 24 of the Federal Law of 02/08/1998 No. 14-FZ “On Limited Liability Companies”, shares owned by the company are not taken into account when determining the results of voting at the general meeting of the company’s participants, when distributing the company’s profit, as well as the company’s property in the event of its liquidation.

For example, if an OJSC owns 65% of the authorized capital of a CJSC, and the remaining 35% belongs directly to the CJSC, then for the purposes of determining the share of participation of one organization in another, the OJSC's share accounts for a 100 percent stake in the CJSC (in accordance with clause 4 of Article 105.2 of the Tax Code of the Russian Federation ).

Scheme No. 1. Availability of shares (shares) owned by the organization (see letter from the Federal Tax Service in the attached file)

"Cross" participation

"Cross" participation of organizations in each other's capital is a situation when one organization (the first) directly participates in another organization, and the latter organization participates in the first organization.

Scheme No. 2. “Cross” participation of organizations in capital (see the diagram in the letter from the Federal Tax Service in the attached file)

"Ring" possession

“Ring” ownership is a situation where, when determining indirect participation, one organization through sequences of participation in other organizations, determined in accordance with paragraphs. 1 clause 3 art. 105.2 of the Tax Code of the Russian Federation, indirectly participates in its own capital (in itself).

Scheme No. 3.“Ring” ownership (see diagram in the letter from the Federal Tax Service in the attached file)

The procedure for determining the share of participation in “cross” or “ring” ownership

The procedure for determining direct (indirect) participation in an organization that is in “cross” or “ring” ownership is similar to the procedure for determining the share of indirect participation established by clause 3 of Art. 105.2 Tax Code of the Russian Federation. At the same time, taking into account the fact that in cases of “cross” and “ring” ownership a situation of an infinite number of sequences of participation of one organization in another is created, it is possible to mathematically transform the share of direct participation of one organization in another organization located in the “cross” or “ring” possession in the following order:

Determination of the share of indirect participation of the organization in its own capital;

The distribution of this share to external owners is proportional to their shares in the capital.

An example of calculating “cross” participation

Number sequence (geometric progression).

An infinite number of sequences of participation of one organization in another in situations of “cross” or “ring” ownership for the purpose of determining indirect participation from a mathematical point of view is a geometric progression, that is, a sequence of numbers (members of the progression), in which each subsequent number, starting from the second, is obtained from the previous one by multiplying it by a certain number (the denominator of the progression).

For example, in scheme No. 2 When determining the share of indirect participation of LLC "D" in the capital of LLC "B", the following sequences of participation with the corresponding share of participation are distinguished:

Sequence 1 (direct D-B participation) = 45%

Sequence 2 (D-B-A-B) = 9.9% = 45% * 40% * 55%

Sequence 3 (D-B-A-B-A-B) = 2.18% = 45% * 40% * 55% * 40% * 55%

Sequence 4 (D-B-A-B-A-B-A-B) = 0.48% = 45% * 40% * 55% * 40% * 55% * 40% * 55%

Sequence 5 (D-B-A-B-A-B-A-B-A-B) = 0.105%

Sequence 6 (D-B-A-B-A-B-A-B-A-B-A-B) = 0.023%

An infinite number of sequences can be simplified by mathematical transformation.

Suppose

Direct share of participation of organization i in organization j

Actual share of participation of organization i in organization j

The actual participation of company "D" in the capital of company "B" is a geometric progression and is as follows:

Thus, the actual participation of LLC "D" in the capital of LLC "B" is 57.69% (45% / (1 - 55% * 40%)).

An example of calculating “ring” ownership

Matrix.

In the case of a large number of organizations for which determination of interdependence is required, as well as in the presence of “cross” or “ring” ownership in the structure of interdependent persons, it is advisable to use a set of equations converted into a matrix.

In practice, in order to simplify the procedure for finding the actual share of participation, an inverse matrix can be used, which can be found using the following formula:

where N is the result matrix, which reflects the actual share of the organization’s participation in other organizations (inverse matrix);

A is a matrix that reflects the direct share of the organization’s participation in other organizations;

E is the identity matrix (a diagonal matrix in which all diagonal elements are equal to 1).

Based on schemes No. 3:

where 0.55 is the share of direct participation of LLC "A" in LLC "B",

0.4 - share of direct participation of LLC "B" in LLC "C",

0.3 - share of direct participation of LLC "C" in LLC "A"

Thus, the share of actual participation of LLC "A" in LLC "B" will be 58.9%

Determination methods

In order to implement correct and legal taxation, tax legislation provides for such a concept as transactions between related parties. They are, on one of the grounds, recognized as companies, the share of participation of one of which in another exceeds 25%. In this case, it is necessary to correctly determine these same shares of participation.

Since establishing the status of interdependent persons requires that the share of participation of one company in the activities of another exceeds 25%, both direct and indirect influence are considered participation. Moreover, each share of a particular participation is calculated differently.

It is noteworthy that when calculating and determining shares, the participation of securities in the management or influence of one company on another is not taken into account. Provided that these securities were obtained by loan under Russian or foreign law.

The law provides that when determining shares, securities will be taken into account for the person who is their seller under a repurchase agreement (securities purchase and sale agreement) or a creditor. That is, the share of the person who does not own securities in the organization, but is their original owner (the seller or the one who lends them out), will be taken into account.

It is legally established that when calculating the share, the participation of foreign companies or structures (should be understood as a separate entity, and not the entire structure), which are not a legally separate entity, is taken into account. But only if the person representing the structure is its sole controlling person.

Direct participation and share

Direct participation means direct participation in the activities or capital of a company or organization of another organization or company, as well as a specific private individual. That is, one company must directly affect the capital or economic activity of another, which is reflected in the relevant documents.

At the same time, tax legislation provides for three methods for calculating the share of direct direct participation in the capital or economic activities of a company:

• by counting the voting shares owned by one company in another company;
• by calculating the share owned by one company in the capital of another company;
• by calculating the share owned by one company, which is directly proportional to the number of existing members in the other company.

The last method is used if and only if it is not possible to calculate and calculate the share of participation using the first two methods.

Among all voting shares of the company, preferred shares and ordinary shares are distinguished. For calculations using the first method, only ordinary shares are always taken into account, provided that their share in the capital is much higher than preferred shares.

For example, there is a company “B”, in the capital of which companies “P”, “M” and “K” participate. The latter has 5 million rubles in the company (5,000 ordinary shares), “P” has 6 million rubles (6,000 ordinary shares), and “M” has 3 million rubles (3,000 ordinary shares).

Together they invested 14 million rubles in the capital of company “B”. In this case, the share of participation of company “K” will be: 5 million rubles / 14 million rubles * 100% = 35%. That is, the company falls under the category of interdependent persons, therefore all transactions between company “K” and “B” will be carried out under special conditions different from market conditions.

To calculate the second method, both preferred shares and ordinary shares are taken into account. So, if in company “B” the share of preferred shares is: company “K” - 4 million rubles (for example, 200 shares), for company “P” - 3 million rubles (for example, 150 shares), and for company “M” "- 1.5 million rubles (700 shares, for example), then the calculation will be something like this:

• Company “K” accounts for a total of 9 million rubles in shares, the share of participation is 9/22.5*100%=40%
• Company “P” accounts for a total of 9 million rubles in shares, the share of participation is 9/22.5*100%=40%;
• Company “M” accounts for a total of 4.5 million rubles in shares, the share of participation is 4.5/22.5*100%=20%.

If it is not possible to allocate shares, then the third method is used, when all active participants-owners of the company are identified, and the funds are divided between them.

Determining a person’s share of participation in an organization is carried out according to the same principle: you need to know how many shares he and his family have in the company, or if you don’t know, use the method of the proportional number of participants.

Indirect participation and share

In order to determine indirect participation and its share, it is first verified how many companies are involved in the chain of interdependence, the direct share of each in the activities and capital of the next is allocated, and only then the indirect share is allocated. But these are not all options.

There are several ways by which one can determine the share of participation of one company in another, as well as the share of participation of an individual in the activities of the company or its capital:

• if there are several sequences of participation of companies or persons in the capital and economic activities of the company, then to determine the indirect share of participation, all existing indirect shares are summed up;
• the allocation of each related company's direct interest in the activities of another company or its capital, and then the allocation of an indirect share;
• the indirect share is determined by multiplying the shares of the first direct companies in the chain of interaction between two companies, and then multiplying the result by the shares of the subsequent companies in the chain until the shares of the companies run out.

For example, there are four companies: A, B, B, D. Their chain of interaction in direct shares is expressed in the sequence: 25%, 35%, 40%. The calculation of the share of indirect participation of company “A” in this case will be: 0.25*0.35*0.4*100%=3.5%.

The procedure for determining a person’s share of participation in an organization is established at the legislative level, therefore any other determination procedure cannot be applied, since it will be considered illegal.

Circumstances when determining the share of participation

All circumstances by which a person’s shares in a company are determined are prescribed at the legislative level, therefore all additional circumstances not specified in the law are taken into account only by the decision and discretion of the court and in no other way.

At the same time, the judicial authorities rely on all possible options, take into account and consider not only the regulatory legal acts that determine the procedures for allocating shares, but also the practice of their colleagues, as well as the opinion of the Supreme Court of the Russian Federation.

Companies and persons associated with them cannot independently determine what circumstances may be additional for the allocation of a direct or indirect share in capital or economic activity, but they can provide the court with the necessary materials that may be evidence of interdependence.

The main legal circumstances include:

• participation or non-participation of securities received under a loan agreement for these securities;
• participation or non-participation of securities received under a purchase and sale agreement for these securities;
• participation or non-participation of a foreign structure, provided that it is not formed into a separate legal entity.

In each case, all circumstances are carefully studied. So, for example, if in the first part of the purchase and sale agreement the company fulfilled all the conditions, but in the second part not all conditions were met, then the securities will not play a role at all in determining the shares. The basis will be the general rules established for all companies - by determining the number of shares, and from their number and participation shares.

In this case, indirect participation implies participation in the relations of several companies through third parties. For example, there are three companies that have little direct connection with each other, but third parties influence the economic results of each of these companies.

It is quite simple to prove that relationships really influence the results of activities in the economic sphere: by comparing similar transactions between persons who under no circumstances can be interdependent persons.