Author of the article: Yulia Kaysina Last modified: January 2020 8415
Dividends - profits paid to the founders, co-founders and shareholders of the organization - are considered income from which alimony is deducted. However, this type of profit is very specific, so alimony from dividends can be difficult to calculate. There is no separate article concerning them in the Family Code. Therefore, in judicial practice and accounting calculations, they are guided by general provisions, taking into account the characteristics of this type of profit.
How is alimony paid?
Today, legislative norms provide for three options for paying alimony:
- by transferring to the child or alimony recipient property that belongs to the payer - this option is possible only if a voluntary agreement is concluded between the parents;
- alimony is calculated in a fixed amount - in this case, monthly payments are made in the same amount;
- calculation of alimony payments as a percentage of the alimony payer’s salary or other income, the list of which is set out in Government Decree No. 841.
If alimony is paid on the basis of the provisions specified in a voluntary agreement, the principles for calculating them remain the same. In the event that the spouses cannot agree on the issue of child support, the decision is made by the judicial authority during its meeting.
The alimony payer may have several types of income: these are wages, funds that he receives by renting out his property, and a scholarship or dividends. According to Resolution No. 841, alimony is calculated on almost all income, with the exception of compensation payments, assistance in connection with the birth of a child, marriage, and funeral payments.
Many recipients and alimony payers have a question about how alimony is withheld from dividends. The answer to this depends on what specific dividends we are talking about. It can be:
- payments that the bank accrues for using the deposit;
- profit from participation in a joint stock company or limited liability company.
Please note that these are different items of income, therefore the issue of calculating alimony is resolved differently.
What to do if the alimony holder refuses dividends
The fact that a decision has been made to pay alimony does not mean that the person entitled to it has received it. By law, dividends are paid no later than 60 days from the date of the decision made by the general meeting.
The recipient has a three-year application period for receiving previously unreceived dividends (in the company's charter, this period can be increased to 5 years). If, after the expiration of the period, no one applies for dividends (payment), they turn into the income of the enterprise.
It is impossible to withhold alimony from persons who have not accepted dividends.
The issue is resolved somewhat differently if a person entitled to receive dividends refuses them in favor of the enterprise. The fact of refusal must be documented - in an application addressed to the accountant.
In this case, the person is required to pay alimony.
Is alimony withheld from bank dividends?
If a dispute arises about the withholding of alimony from profits received from a bank deposit, it is better for the alimony payer to seek legal assistance. According to the general rule, alimony is not withheld from dividends that the payer receives from a bank deposit. This type of income is not listed in the list set out in Resolution No. 841.
On the other hand, the same document states that the income that the alimony payer receives from contracts concluded on the basis of civil law is the profit from which alimony is calculated. When making a deposit, an agreement is concluded between two parties: the bank and the depositor, the interaction between which is regulated by the articles of the Civil Code. Thus, dividends that are transferred to the depositor by the bank can be considered as profit received under an agreement concluded within the framework of the Civil Code. According to the second paragraph of the “List of types ... of income from which alimony is withheld”, subparagraph “O”, alimony can be withheld from income accrued to the deposit.
Special attention should be paid to two more points. The body of the deposit itself, that is, the amount that the alimony payer transfers to the bank for use, is not the income from which alimony is calculated. Thus, this money completely belongs to the alimony payer. But if he evades payment of funds for the maintenance of minor children, the executive authorities, represented by the bailiff, have the right to seize the bank account. Thus, the alimony payer is not deprived of these funds, but cannot use them. After paying the alimony debt, such penalties are lifted, and the alimony payer will again be able to use the funds. Please note that the bank continues to accrue dividends on the deposit in the amount stipulated by the agreement. Removal of the seizure is possible only after the bank receives written confirmation of payment of the debt.
If the alimony payer has a significant debt and does not pay alimony for a long time, the bailiff may initiate criminal proceedings against him. In this case, the bank account is not only seized, but can also be used to pay off alimony debt, and funds from it are transferred to the benefit of minor children. This applies to both the deposit amount itself and the dividends accrued on it.
Alimony in shares
According to Russian law, one child is entitled to a quarter of the father’s (or mother’s) income, for two – a third, and for three or more – half. If, for example, a man has two offspring from different women, then in this case a third is divided in half between them.
Contrary to popular belief, assigning alimony in shares (percentages) when receiving dividends is quite possible. In this case, the organization’s accounting department will make the appropriate calculations and give the man exactly what he is entitled to. In this case, deductions are often made separately - from salaries, and separately - from profits received from the activities of the company.
This option can be very beneficial for the child and the parent living with him, provided that the company is doing consistently well (or at least most of the time). However, the obvious disadvantage in the situation under discussion will be the inability to predict the size of payments. In addition, if at the end of a specific reporting period the enterprise goes into the red, it turns out that funds will be allocated for the child exclusively from the salary (if any).
Alimony from dividends received from participation in a joint stock company, LLC
If the alimony payer is the founder or co-founder of an LLC, a joint stock company, he receives dividends from the profits that such an organization brings. Child support is withheld from them without fail. This type of income is included in the list specified in Resolution No. 841. At the same time, the calculation of alimony from such income has several features.
- Firstly, in most cases, dividends are paid to shareholders or founders not monthly, but once a quarter or less often. But alimony is those payments that are monthly. In this case, the following rule is most often followed: alimony is calculated from the total amount of dividends in the amount specified in the court decision, and in other months the amount of alimony is determined as a share of the average salary established in a particular region. If such an indicator is not determined, the calculation is based on the all-Russian average salary.
- Secondly, if dividends to the founder or participant are calculated monthly, then alimony is withheld from this amount. It does not matter whether the alimony payer withdraws this amount or leaves it in his own account - in any case, such funds are his income, therefore, alimony must be withheld from them.
- Thirdly, there is one more nuance. Often, the founders or participants of LLCs and joint stock companies seek to understate their income in order to reduce the amount of alimony. The alimony recipient has the right to contact the tax authorities to obtain a certificate of the company’s profit for a specific period. Also, a similar appeal can be made by the bailiff who conducts alimony proceedings. Based on the data received in response to such a request, the amount of alimony may be recalculated.
Please note that if the alimony payer has a debt, his part of the property or funds held as assets of the company cannot be seized or seized in order to pay off the debt. This is due to the fact that when transferring funds or property as a share for participation in an LLC, such valuables cease to belong to the alimony payer and become the property of the company.
Another important point: if the founder or participant of the company refused to accrue dividends to him, deciding to invest all profits in the development of the company and confirmed this with documents, alimony for this profit in this case is not accrued. This does not mean that child support payments are not made: they are withheld from wages, other sources of income, or a fixed monthly amount is determined.
Director and founder are different persons
Not all recipients of alimony, knowing that the ex-husband (wife) is the payer of alimony and the director of the enterprise, understand the difference between the position and legal status of such an alimony payer.
Alimony from dividends, as a source of income, is withheld only from the founder (shareholder). The founder may not be part of the management of the enterprise and may not personally participate in its activities. However, thanks to the funds or tangible assets invested in the capital of the enterprise, the founders (participants) have the right to receive a share of the profit from the activities of the enterprise, being classified as individuals.
The director, on the other hand, can simultaneously be a participant (founder, shareholder), or he can be a simple hired employee (TOP manager), who receives wages on the same basis as other employees. If, according to the terms of the employment contract with the director, remuneration payments are provided based on the results of the enterprise’s activities for the reporting period, then they are not dividends, but are considered as cash bonuses from which alimony is paid.
Payment of dividends under the simplified tax system or whether to submit a declaration
Should an organization applying a simplified taxation system submit to the inspectorate at the place of tax registration a tax calculation for income tax when paying dividends to the organization's participants - individuals (there are no other participants)?
The procedure for determining the tax base for corporate income tax on income received from equity participation in other organizations is established by Article 275 of the Tax Code of the Russian Federation.
According to paragraph 2 of Article 275 of the Tax Code of the Russian Federation, if the taxpayer’s source of income in the form of dividends is a Russian organization, then the specified organization is recognized as a tax agent and determines the amount of income tax taking into account the provisions of this paragraph.
Tax agents are required, at the end of each reporting (tax) period in which they made payments to the taxpayer, to submit tax calculations to the tax authorities at their location.
In accordance with Article 24 of the Tax Code of the Russian Federation, tax agents are persons who, according to the Code, are entrusted with the responsibility for calculating, withholding from the taxpayer and transferring taxes to the budget system of the Russian Federation.
Consequently, if the founders (participants) of a Russian organization are only individuals and the amounts of dividends due to them are subject to personal income tax, then such organizations do not have the duties of a tax agent, in particular, to calculate, withhold and transfer corporate income tax to the budget , upon submission of a tax calculation for this tax.
USEFUL INFORMATION: Marriage agreement and inheritance
Russian organizations - taxpayers of income tax, acting as tax agents, submit calculations as part of subsection 1.3 of section 1, as well as sheet 03 “Calculation of income tax withheld by the tax agent (source of payment of income)”.
In this case, the amount of dividends distributed in favor of individuals who are residents of the Russian Federation is indicated on line 043 of sheet 03 only for use in calculating income tax on dividends paid to Russian organizations.
Collection of alimony from the founder of an LLC
The collection of alimony from the founder of the company can be carried out either voluntarily or compulsorily. If the obligation to pay alimony is fulfilled voluntarily, the parties most often make mutual settlements based on a notarial agreement.
In case of forced collection, the rules for fulfilling obligations are determined by a court order. At the same time, when the payer does not comply with this resolution, the collection is carried out according to the executive document.
This executive document must be sent to the person directly making the payments. As a rule, this is the accounting department of the organization.
USEFUL INFORMATION: Settlement agreement in case of divorce
However, the recipient has the right to send a similar document to the bailiffs. This usually happens when a company does not pay dividends. In such a situation, they collect at the expense of other money of the payer, as well as property.
Thus, alimony is withheld from the income received by persons as a founder of the company. This takes into account the specifics of the dividend payment procedure in the relevant organization.
When the payer is the director of an LLC
Naturally, you can get a job in your own LLC - general director (chief accountant), setting yourself a salary, but not in the amount of 2,000 rubles. Since in St. Petersburg there is a regional agreement that establishes the minimum wage - this is 11,700 rubles - h.
Accrued funds must be brought to the recipient within 3 days from the date of accrual of wages to the payer. The accountant is obliged to comply with the deadlines, as well as the amount that should be accrued. Otherwise, he may be held accountable. If the alimony payer independently carries out activities on behalf of the created LLC, all these actions must be performed by him.
Agree, the term is used here with a very broad meaning. Therefore, we cannot do without by-laws and regulations. Fortunately, there is one such thing. During the Soviet era, alimony was deducted from total earnings. This is how it should be today. I don’t know newlyweds who would enter into an alimony agreement during registration at the registry office.
Tax legislation provides for partial exemption from personal income tax for certain types of income, i.e., income up to a certain amount is exempt from taxation.
The basis for reducing the payment amount is lack of income. The court may decide to award alimony in a fixed fixed amount. The plaintiff must provide compelling written arguments for his claim. When the recovery is a percentage, the parties can agree or through the court also determine the alimony obligations in a fixed amount.
In many ways, such problems can be avoided by the payer’s integrity. There are often cases when alimony is not paid at all, and the result of collecting it through the court is zero. I am a member of an LLC and receive dividends. This year I have to pay child support in a certain part of my income according to a court decision.
Payment of alimony by LLC organization
If the alimony payer’s income consists exclusively of dividends, then the document specifies several possible options for conducting transactions:
- Every month, having decided on the size of financial obligations. In this case, regardless of when exactly the payer receives dividends, he transfers the agreed amount every month.
- As dividends arrive. In this case, the child receives a percentage of the amount received by the father.
What to do if the company does not pay dividends? That is, the company is considered unprofitable and does not receive any profit, which is confirmed by relevant documents. There are two ways to get out of this situation:
- The payer must apply to the court with a request to reduce the amount of alimony payments due to lack of income.
