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Which persons are recognized as “controlling persons” of the organization? Indirect participation by owning shares of a subsidiary. How the participation shares of other organizations are confirmed

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 correlation 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 (shares) 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).

07.02.2017

Controlling person of a foreign organization The following persons are recognized:

1) an individual or legal entity whose share of participation in this organization is more than 25%;

2) an individual or legal entity whose share of participation in this organization (for individuals - together with spouses and minor children) is more than 10%, if the share of participation of all persons recognized as tax residents of the Russian Federation in this organization (for individuals - together with spouses and minor children) is more than 50%.

However, a person who does not meet the criteria specified above may also be recognized as the controlling person of an organization, but exercising control over the organization in their own interests or in the interests of their spouse and minor children (clause 6 of article 25.13 of the Tax Code of the Russian Federation). Thus, the Law does not limit the concept of “control” to only a certain share of participation in the company.

A controlling person will be recognized as a person who, although he does not have a stake in a foreign company (is not its shareholder), but at the same time has or has the ability to have a decisive influence on decisions on the distribution of profits received by the company.

In other words, the controlling person can be not only the title shareholder (participant) of a foreign company, but also its beneficial owner.

If such a beneficiary is a tax resident of the Russian Federation, he is subject to all the obligations of the controlling person - filing a notification about the CFC, a personal income tax return with the financial statements of the CFC attached, and paying tax (if there is a tax payable).

Circumstances indicating control over a foreign company (in the absence of participation shares) may be:

the presence of a trust declaration fixing the obligation of nominee shareholders to hold company shares for the benefit and in the interests of this beneficiary;
management of all affairs of a foreign company by a tax resident of the Russian Federation on the basis of a general power of attorney;
information about the bank account of a foreign company, the beneficial owner of which is a tax resident of the Russian Federation (such data may be received from foreign tax authorities as part of the automatic exchange of information);
other features of the relationship between this person and the foreign company.

Share of participation an organization in another organization or an individual in an organization is determined in accordance with the procedure provided for in Article 105.2 of the Tax Code of the Russian Federation. At the same time, when determining the share of an individual in an organization, sole participation and participation together with spouses and minor children are taken into account.

Article 105.2. The procedure for determining the share of participation of one organization in another organization or an individual in an organization

1. For the purposes of this Code, the share of participation of one organization in another organization is determined as the sum of the shares of direct and indirect participation of one organization in another organization, expressed as a percentage.

2. The share of direct participation of one organization in another organization is recognized as the share of voting shares of another organization directly owned by one organization or the share directly owned by one organization in the authorized (share) capital (fund) of another organization, and if it is impossible to determine such shares - directly owned by one organization a share determined in proportion to the number of participants in another organization.

3. The share of indirect participation of one organization in another organization is recognized as the 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.

3.3. When determining the share of participation in an organization, the participation of an individual or organization in a foreign structure without forming a legal entity, which, in accordance with its personal law, has the right to participate in the capital of other organizations or in other foreign structures without forming a legal entity, is also taken into account.

4. Additional circumstances when determining the share of participation of one organization in another organization or an individual in an organization are taken into account in court.

5. The rules provided for in this article also apply when determining the share of participation of an individual in an organization.

So the percentage possession threshold for a foreign company to be recognized as a controlling person is 25%. However, if the company is owned several residents of the Russian Federation, and the total share of their participation in the company is more than half, then to recognize a person as a controlling person, a share will be sufficient from 10%.

IMPORTANT: For the transition period until January 1, 2016 the share of participation of a person in the organization for recognition of such a person as a controlling person will be 50%.

Face not recognized a controlling person of a foreign organization, if his participation in this foreign organization is realized exclusively through direct and (or) indirect participation in one or more public companies that are Russian organizations(clause 4 of article 25.13 of the Tax Code of the Russian Federation).

Public companies – these are Russian and foreign organizations that are issuers of securities that (or depositary receipts for which) have undergone the listing procedure and (or) were admitted to circulation on one or more Russian exchanges that have the appropriate license, or exchanges included in the list of foreign financial intermediaries.

1. For the purposes of this Code, the share of participation of a person in an organization is determined as the sum of the shares of direct and indirect participation of this person in the organization, expressed as a percentage.

2. The share of direct participation of a person in an organization is recognized as the share of voting shares of this organization directly owned by such person or the share directly owned by such person in the authorized (share) capital (fund) of this organization, and if it is impossible to determine such shares - directly owned by such person who is member of this organization, a share determined in proportion to the total number of participants in this organization.

If shares (shares in the authorized (share) capital (fund) of an organization are part of the assets of an investment fund or non-state pension fund created in accordance with the legislation of the Russian Federation, the share of direct participation in such an organization is determined in proportion to the share of participation (share of contributed property in the contribution) of persons in such an investment fund (non-state pension fund), and if it is impossible to determine such a share - in proportion to the number of persons.

3. The share of indirect participation of a person in another organization is recognized as the share determined in the following order:

1) all sequences of a person’s participation in an organization are determined through the direct participation of each previous organization (other person) in each subsequent organization of the corresponding sequence;

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

3) the shares of indirect participation of one organization (other person) in another organization of each sequence are determined, while the share of indirect participation is determined as the product of the shares of direct participation of the first two organizations (other persons) in the sequence, and if there is subsequent participation, by multiplying the resulting product by the share the next direct participation in the sequence and each subsequent resulting product for each share of the next direct participation until the last organization in the sequence;

4) if there are several sequences of participation, all shares of indirect participation of a person in the organization, determined in accordance with subclause 3 of this clause, are summed up.

4. When determining a person’s share of participation in an organization, participation realized through ownership of securities acquired under a repurchase agreement concluded in accordance with the Federal Law “On the Securities Market” or an operation recognized as a repo operation in accordance with the legislation of a foreign state is not taken into account. . At the same time, in order to determine the share of direct and (or) indirect participation, such securities are taken into account from the person who is the seller of securities under the first part of the repo, except for cases where the securities sold by the seller under the first part of the repo were received by him under another REPO transactions or securities lending transactions.

In case of non-fulfillment or incomplete execution of the second part of the repo, the determination of the person’s share of participation in the organization is carried out without taking into account the specifics established by this paragraph.

5. When determining a person’s share of participation in an organization, participation realized through ownership of securities received under a securities loan agreement concluded in accordance with the legislation of the Russian Federation or the legislation of a foreign state is not taken into account. At the same time, in order to determine the share of direct and (or) indirect participation, such securities are taken into account from the person who is the creditor (provides securities on loan), except for cases when the securities transferred under the securities loan agreement were received by the creditor under another securities lending or repo transaction.

In case of non-fulfillment or incomplete fulfillment of obligations to return securities under securities lending transactions, the determination of a person’s share of participation in the organization is carried out without taking into account the specifics established by this paragraph.

6. When determining a person’s share of participation in an organization, participation carried out using a foreign structure without forming a legal entity is also taken into account, if such a person is recognized as a controlling person of this structure. In this case, the share of such participation using a foreign structure without forming a legal entity is determined in a manner similar to the procedure for determining the share of indirect participation of a person in an organization, carried out using another organization, established by paragraph 3 of this article, taking into account the features established by the second paragraph of this paragraph.

To determine the share of indirect participation of a person in an organization if there is more than one controlling person of a foreign structure without forming a legal entity, the share of each of the controlling persons in such an organization is determined in proportion to the contribution of each controlling person to the property transferred to this structure. If it is impossible to determine the size of the contribution to the property transferred to such a structure, the shares of all controlling persons for the purpose of determining the share of their participation in the organization are recognized as equal, and their size is determined based on the number of controlling persons of such a structure.

The rules provided for by this paragraph also apply when determining the share of participation in an organization carried out using a foreign legal entity for which, in accordance with its personal law, participation is not provided (there is no authorized capital or fund).

7. Additional circumstances when determining a person’s share of participation in an organization are taken into account in court.

Commentary to Art. 105.2 Tax Code of the Russian Federation

Article 105.2 of the Tax Code of the Russian Federation establishes the procedure for determining the share of direct participation and the share of indirect participation of one organization in another organization.

In this case, the rules established by this article also apply when determining the share of participation of an individual in an organization.

The share of participation of one organization in another organization is determined as the sum of the shares of direct and indirect participation of one organization in another organization, expressed as a percentage.

The share of direct participation of one organization in another organization is recognized as a share of voting shares of another organization directly owned by one organization or a share directly owned by one organization in the authorized (share) capital (fund) of another organization, and if it is impossible to determine such shares - a share directly owned by one organization. determined in proportion to the number of participants in another organization.

Thus, a share of direct participation in an organization is recognized as directly owned by:

share of voting shares of a joint stock company. In accordance with paragraph 1 of Art. 49 of the Federal Law of December 26, 1995 N 208-FZ “On Joint-Stock Companies” (hereinafter in this chapter - Law N 208-FZ), a voting share of a joint-stock company is an ordinary share or a preferred share, giving the shareholder - its owner the right to vote on a decision issue put to vote.

As follows from the provisions of paragraph 2 of Art. 31 and paragraph 1 of Art. 49 of Law N 208-FZ, shareholders - owners of ordinary shares of the company have the right to participate in the general meeting of shareholders with the right to vote on all issues within its competence.

Shareholders - owners of preferred shares of the company have the right to vote only in cases established by Law No. 208-FZ (Clause 1, Article 32 and Clause 1, Article 49 of Law No. 208-FZ).

Shareholders are owners of preferred shares in cases provided for in clauses 4 and 5 of Art. 32 of Law N 208-FZ, have the right to participate in the general meeting of shareholders and vote on certain issues on the agenda;

share in the authorized (share) capital (fund) of the organization. The authorized capital of an LLC is made up of the nominal value of the shares of its participants. The size of the share of a company participant in the authorized capital of the company is determined as a percentage or as a fraction. The size of the share of a company participant must correspond to the ratio of the nominal value of his share and the authorized capital of the company. The share of the founder of the LLC, unless otherwise provided by the charter of the limited liability company, provides the right to vote only within the paid part of the share belonging to him (clauses 1, 2 of article 14, paragraph 3 of clause 3 of article 16 of the Federal Law dated 8 February 1998 N 14-FZ “On Limited Liability Companies”);

a share determined in proportion to the number of participants in another organization (if it is impossible to determine the size of the share).

And we will talk about indirect ownership of shares in the authorized capital when one organization participates in another organization through third parties.

The share of indirect participation of one organization in another organization is recognized as a share determined in the following order:

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

In this case, the summation of the products of direct participation shares is carried out in the case when several independent sequences of participation of one organization in another organization through the direct participation of each previous organization in each subsequent organization are determined (Letters of the Ministry of Finance of Russia dated July 4, 2012 N 03-01-18/5 -88, dated July 4, 2012 N 03-01-18/5-87, dated April 23, 2012 N 03-01-18/3-51).

Thus, in order to determine the share of indirect participation, it is necessary to sequentially:

1) determine all sequences of participation of one organization in another through the direct participation of each previous organization in each subsequent organization of the corresponding sequence. That is, first all sequences of participation are identified and their number is determined;

2) determine the share of direct participation of each previous organization in each subsequent organization “within” each sequence;

3) multiply the shares of direct participation of one organization in another through the participation of each previous organization in each subsequent organization of all sequences;

4) sum up the resulting products. This only needs to be done if more than one sequence was identified initially.

Please note that from January 1, 2015, when determining the share of participation of one organization in another organization, participation realized through ownership of securities acquired under a repurchase agreement concluded in accordance with the Federal Law “On the Securities Market” or transactions , recognized as a REPO transaction in accordance with the laws of a foreign state. At the same time, in order to determine the share of direct and (or) indirect participation, such securities are taken into account from the person who is the seller of securities under the first part of the repo, except for cases where the securities sold by the seller under the first part of the repo were received by him under another REPO transactions or securities lending transactions.

In case of non-fulfillment or incomplete execution of the second part of the repo, the determination of the share of participation of one organization in another organization is carried out without taking into account the specifics established by clause 3.1 of Art. 105.2 Tax Code of the Russian Federation.

When determining the share of participation of one organization in another organization, participation realized through the ownership of securities received under a securities loan agreement concluded in accordance with the legislation of the Russian Federation or the legislation of a foreign state is not taken into account. At the same time, in order to determine the share of direct and (or) indirect participation, such securities are taken into account from the person who is the creditor (provides securities on loan), except for cases when the securities transferred under the securities loan agreement were received by the creditor under another securities lending or repo transaction.

In case of non-fulfillment or incomplete fulfillment of obligations to return securities under securities lending transactions, the determination of the share of participation of one organization in another organization is carried out without taking into account the specifics established by this paragraph.

When determining the share of participation in an organization, the participation of an individual or organization in a foreign structure without forming a legal entity, which, in accordance with its personal law, has the right to participate in the capital of other organizations or in other foreign structures without forming a legal entity, is also taken into account.

The above follows from paragraphs 3.1 - 3.2 of Art. 105.2 of the Tax Code of the Russian Federation, introduced in Art. 105.2 of the Tax Code of the Russian Federation Federal Law of November 24, 2014 N 376-FZ “On amendments to parts one and two of the Tax Code of the Russian Federation (in terms of taxation of profits of controlled foreign companies and income of foreign organizations).”

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:

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

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 purpose 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.

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 purposes 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%

Participatory interest in an organization is a share, expressed as a percentage, of 100% of voting shares or shares in the authorized (share) capital of an organization owned by a person.

Comment

The procedure for determining the share of participation of one organization in another organization or an individual in an organization is regulated by Art. 105.2 Tax Code of the Russian Federation. The same rules apply when determining the share of participation of an individual in an organization.

The share of participation is used to determine whether persons are .

Example

Organizations are interdependent if one organization directly and (or) indirectly participates in another organization and the share of such participation is more than 25 percent (clause 1, clause 2, article 105.1 of the Tax Code of the Russian Federation)

It should be noted that in the Tax Code of the Russian Federation participation is understood as participation in the authorized capital of another organization, regardless of its organizational and legal form. Thus, ownership of shares in a joint-stock company is also recognized in taxation as participation in a joint-stock company (although in civil law the term “ownership” of shares in a joint-stock company is used).

Participation share of a person in an organization is determined as the sum of the percentage shares of direct and indirect participation of this person in the organization (clause 1 of article 105.2 of the Tax Code of the Russian Federation).

Example

Entity A has a 20% direct interest in Entity B and a 10% indirect interest in Entity B.

The share of participation of Organization A in B is 30%.

Share of direct participation of a person in the organization the share of voting shares of this organization directly belonging to such a person or the share directly belonging to such a person in the authorized (share) capital (fund) of this organization is recognized (clause 2 of Article 105.2 of the Tax Code of the Russian Federation).

Example

Organization A owns 40% of Beta LLC.

The direct participation share of Organization A in Beta LLC is 40%.

Share of indirect participation of a person in another organization the share determined in the following order is recognized (clause 3 of article 105.2 of the Tax Code of the Russian Federation):

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

4) if there are several sequences of participation, all shares of indirect participation of a person in the organization, determined in accordance with clause 3, are summed up.

Example

Organization A owns a 40% share in the authorized capital of Organization B

Organization A owns a 60% share in the authorized capital of Organization B

Organization B owns a 30% share in the authorized capital of Organization D.

A schematic representation of this situation:

A (40%) –> B (30%) –> D

A (60%) -> B (30%) -> D

Let us determine the share of indirect participation of Organization A in Organization D:

1) all sequences of a person’s participation in an organization through the direct participation of each previous organization (other person) in each subsequent organization of the corresponding sequence;

Organization A – Organization B – Organization D

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

Organization A (40%) – Organization B (30%) – Organization D

Organization A (60%) – Organization B (30%) – Organization D

3) the shares of indirect participation of one organization (another person) in another organization of each sequence are determined

Share A - B - D = 40% * 30% = 12%

Share A - B - D = 60% * 30% = 18%

4) all shares of indirect participation of a person in the organization are summed up

Share of indirect participation of Organization A in Organization D = 30%

Example

Situation:

Ivanov owns 50% of the shares in company A. Company A, in turn, owns 40% of the shares in company B.

Consequences:

Ivanov has a 50% direct participation in company A. Ivanov and company A are interdependent persons (since the share of participation is more than 25%).

Company A has a 40% direct participation in company B. Companies A and B are interdependent persons (since the share of participation is more than 25%).

Ivanov has a 20% indirect participation in company B (50% * 40%). Ivanov and company B are not interdependent persons (since the share of participation is no more than 25%).

Interest in a controlled foreign company

The share of participation in a controlled foreign company is determined taking into account the specifics established by clause 5 of Art. 105.2. Tax Code of the Russian Federation.

An additional rule has been established (clause 5 of Article 25.13 of the Tax Code of the Russian Federation): “In this case, when determining the share of an individual in an organization, sole participation and participation together with spouses and minor children are taken into account.”