Interest-free loan to individuals. Tax implications of interest-free loans
If a loan is issued from individual for an organization (an LLC using the simplified tax system), is it possible not to register interest on the loan, but only to issue an interest-free loan with repayment terms in the agreement (initially this is a hired employee, then the employee will be the founder, the loan amount is not related to the contribution to the founding capital)? What are the tax consequences of providing an interest-free loan?
Having considered the issue, we came to the following conclusion:
In the situation under consideration, the operation to provide an interest-free loan will not lead to an increase tax obligations parties to the transaction.
Rationale for the conclusion:
simplified tax system
Taxpayers using the simplified tax system determine income in accordance with Art. 346.15 Tax Code of the Russian Federation.
According to paragraph 1 of Art. 346.15 of the Tax Code of the Russian Federation, when determining the object of taxation for the tax paid in connection with the application of the simplified tax system (hereinafter referred to as the Tax), income determined in the manner established by clauses is taken into account. 1 and 2 tbsp. 248 Tax Code of the Russian Federation. In this case, organizations do not take into account the income specified in Art. 251 of the Tax Code of the Russian Federation, as well as income subject to corporate income tax under tax rates, provided for in paragraphs. 1.6, 3 and 4 tbsp. 284 of the Tax Code of the Russian Federation, in the manner established by Chapter 25 of the Tax Code of the Russian Federation (subparagraphs 1, 2, clause 1.1 of Article 346.15 of the Tax Code of the Russian Federation).
Yes, pp. 10 p. 1 art. 251 of the Tax Code of the Russian Federation exempts from taxation income in the form of funds or other property received under credit or loan agreements (other similar funds or other property, regardless of the form of registration of borrowings, including securities on debt obligations).
Thus, amounts received by an organization under a loan agreement, including interest-free, are not taken into account as income when forming tax base according to Tax. The status of the creditor (employee, founder) does not matter in this case (see also letter of the Ministry of Finance of Russia dated June 29, 2011 N 03-11-11/104).
In addition, due to the gratuitous use of borrowed funds, the organization in this case will also not generate taxable income. Let me explain.
In accordance with the Tax Code of the Russian Federation, income is recognized as economic benefit in monetary or in-kind form, taken into account if it is possible to evaluate it and to the extent that such benefit can be assessed, and determined in accordance with Chapters 23 and 25 of the Tax Code of the Russian Federation (clause 1 of Art. 41 of the Tax Code of the Russian Federation).
As follows from paragraph 2 Information letter Presidium of the Supreme Arbitration Court of the Russian Federation dated December 22, 2005 N 98, by virtue of Art. 41 of the Tax Code of the Russian Federation, in order to recognize economic benefits as income taken into account for taxation, it is not enough to establish the potential possibility of its assessment. The procedure for determining and assessing benefits must be established by the relevant chapters of the Tax Code of the Russian Federation regulating the taxation of certain types of income, which is the implementation general conditions establishment of taxes (see also Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated August 3, 2004 N 3009/04).
The norms of the Tax Code of the Russian Federation do not oblige taxpayers using the simplified tax system to recognize income in the form of material benefits received as a result of the gratuitous use of borrowed funds, nor do they establish a procedure for assessing income in such cases (see, for example, letter of the Ministry of Finance of Russia dated 02/09/2015 N 03-03-06/1/5149).
Thus, we believe that the organization in the situation under consideration does not have an obligation to recognize income in tax accounting due to the gratuitous use of borrowed funds.
A similar conclusion is presented in the letter of the Ministry of Finance of Russia dated July 24, 2013 N 03-11-06/2/29384: the amount of material benefit under interest-free loan agreements by taxpayers using the simplified tax system is not determined and, accordingly, is not taken into account when determining the object of taxation for the Tax (see also letters of the Ministry of Finance of Russia dated October 3, 2008 N 03-11-05/231, Federal Tax Service of Russia for Moscow dated April 15, 2009 N 16-15/036216).
Personal income tax
In accordance with Art. 209 of the Tax Code of the Russian Federation, the object of taxation for personal income tax is income received by taxpayers:
from sources in the Russian Federation and (or) from sources outside the Russian Federation - for individuals who are tax residents of the Russian Federation;
from sources in the Russian Federation - for individuals who are not tax residents of the Russian Federation.
In connection with the transfer cash under an interest-free loan agreement, as well as in connection with their return (letter of the Federal Tax Service of Russia for Moscow dated September 30, 2009 N 20-14/3/101546), (employee, founder) does not receive economic benefits within the meaning of clause 1 of Art. . 41 of the Tax Code of the Russian Federation, accordingly, he does not have income subject to personal income tax.
Economic benefit (income) subject to personal income tax, arises from an individual lender if the borrower returns an amount of money exceeding the loan amount received by him (see, for example, letters of the Ministry of Finance of Russia dated 04/29/2016 N 03-04-05/25264, dated 02/15/2016 N 03-04- 05/8113).
In conclusion, we note that the letter of the Ministry of Finance of Russia dated September 29, 2016 N 03-04-05/56656 explains that if the lender is not a person whose income is subject to personal income tax in the manner prescribed by Art. 227 of the Tax Code of the Russian Federation, that is individual entrepreneur or a person engaged in the procedure established by current legislation private practice, when taxing his income, the provisions of the Tax Code of the Russian Federation relating to interdependent persons are not taken into account.
Note:
By virtue of paragraphs. 7 paragraph 4 art. 105.14 of the Tax Code of the Russian Federation, which entered into force on January 1, 2017, transactions for the provision interest-free loans between interdependent persons, the place of registration or place of residence of all parties and beneficiaries of which is the Russian Federation, are not recognized as controlled. This, in particular, means that the participants in these transactions, starting from the current calendar year, do not have the obligation to notify the tax authorities about their completion, provided for in paragraph 1 of Art. 105.16 of the Tax Code of the Russian Federation (see information from the Federal Tax Service of Russia dated December 29, 2016 “The list of transactions not recognized as controlled has been expanded since January 1”).
Encyclopedia of solutions. Accounting for the borrower's receipt of borrowed funds;
Encyclopedia of solutions. Accounting when receiving cash loans.
Prepared answer:
Expert of the Legal Consulting Service GARANT
, member of the Russian Union of Auditors Fedorova Lilia
Response quality control:
Reviewer of the Legal Consulting Service GARANT
candidate economic sciences Ignatiev Dmitry
The material was prepared on the basis of individual written consultation provided as part of the Legal Consulting service.
An individual issued an interest-bearing loan (Loan-1) legal entity(Companies). Amount - 20 million rubles. Duration - 2 years. Interest is charged at a rate of 15% per annum on the actual balance of the debt. The Company repays the principal debt to an individual in several tranches. Payment by the Company to an individual of accrued interest is made after full repayment of the principal debt.
Question 1 :
Is issuing Loan-1 a business activity for an individual? If so, is it a business activity for the Company to return the principal debt to an individual in a single tranche and lump sum payment accrued interest?
Answer :
As follows from paragraph 1 of Art. 23 Civil Code RF (hereinafter referred to as the Civil Code of the Russian Federation), a citizen has the right to engage in entrepreneurial activity without forming a legal entity from the moment state registration as an individual entrepreneur.
In accordance with paragraph 1 of Art. 2 of the Civil Code of the Russian Federation, entrepreneurial activity is an independent activity carried out at one’s own risk, aimed at systematically generating profit from the use of property, sale of goods, performance of work or provision of services by persons registered in this capacity in the manner prescribed by law.
However, the Civil Code of the Russian Federation does not have clear criteria for determining that a particular type of activity of an individual is systematic in nature, and, as a consequence, leads to the obligation to register as an individual entrepreneur. Moreover, the legislation does not define the concept of “systematic”.
Thus, in order to talk about the attribution of income received to entrepreneurial activity, it is necessary to prove the very fact of the existence of such activity.
As we understand from the description of the situation, the individual is not registered as an individual entrepreneur and the issuance of a loan to the Company is of a one-time nature.
Under such circumstances, in our opinion, it is quite difficult to qualify the receipt of interest on loan-1 as income from business activities, because a single operation to provide a loan cannot be called a systematic activity.
The Letter of the Ministry of Finance of the Russian Federation dated December 28, 2012 No. 03-04-05/10-1454 states the following:
“The presence of signs of entrepreneurial activity in a citizen’s actions is evidenced, in particular, by the following facts:
- production or acquisition of property for the purpose of subsequent profit from its use or sale;
- accounting business transactions related to transactions;
- the interconnectedness of all transactions made by a citizen in a certain period of time;
- stable connections with sellers, buyers, and other counterparties."
In paragraph 13 of the Plenum Resolution Supreme Court RF dated October 24, 2006 No. 18 “On some issues that arise for courts when applying the Special Part of the Code Russian Federation on administrative offences” states that:
"certain cases of provision services by a person not registered as an individual entrepreneur do not constitute an administrative offense, provided that the volume of services provided and other circumstances do not indicate that this activity was aimed at systematically making a profit.”
Judicial practice shows that arbitrators proceed from the factual circumstances of the cases under consideration and the presence of indisputable evidence of business activity. There are decisions both in favor of individuals and in favor of tax authorities.
Thus, in our opinion, the issuance of one loan cannot be qualified as entrepreneurial activity, and, accordingly, income in the form of interest received will not be income from entrepreneurial activity.
Are you an accountant, but the director doesn't appreciate you? Does he think that you are just wasting his money and overpaying taxes?
Become a valuable specialist in the eyes of management. Learn to work with accounts receivable.
The Clerk Learning Center has a new one.
Training is completely remote, we issue a certificate.
In the course of its activities, a company or individual entrepreneur can issue or receive interest-free loans. Are such loans legal and what tax consequences can they lead to? For BUKH.1S, the situation with obtaining an interest-free loan by an organization, individual entrepreneur and individual was analyzed by an expert in accounting and taxation Angelina Volkonskaya.
Is it possible to lend without interest?
Civil legislation does not contain a ban on providing interest-free loans. Moreover, the lender has the right to receive interest from the borrower on the loan amount, unless otherwise provided by the agreement (Part 1 of Article 809 of the Civil Code of the Russian Federation). That is, when issuing an interest-free loan, this must be provided for in the contract. If there is no such clause, then by default the loan agreement is considered interest-bearing. In this case, interest is determined based on the key rate of the Central Bank of the Russian Federation, which is applied instead of the refinancing rate from January 1, 2016.
Borrower - organization
The question that concerns organizations is: do they generate income in the form of material benefits when receiving “free” loans? For example, with a gratuitous lease, the user of the property must reflect non-operating income based on the market value of the lease. Doesn't a similar procedure apply when receiving interest-free loans?
No, it does not apply. When calculating profit tax, organizations take into account income from sales and non-operating income (clause 1 of Article 248 of the Tax Code of the Russian Federation). In the list of non-operating income given in Article 250 of the Tax Code of the Russian Federation, the material benefit received by the organization from the interest-free use of borrowed funds is not named. Of course, this list is not closed, but in order for the amount of benefit to correspond to income, it is necessary that the possibility of its assessment be provided for in Chapter 25 of the Tax Code of the Russian Federation (Article 41 of the Tax Code of the Russian Federation). And Chapter 25 of the Tax Code of the Russian Federation does not contain a procedure for assessing income in the case under consideration.
This is also confirmed by officials, as evidenced, for example, by letters from the Ministry of Finance of Russia dated March 23, 2017 No. 03-03-RZ/16846, dated February 9, 2015 No. 03-03-06/1/5149.
Cheat sheet on the article from the editors of BUKH.1S for those who do not have time
1. Civil legislation does not contain a ban on providing interest-free loans. But the fact that the loan is interest-free must be noted, since by default the loan agreement is considered interest-bearing.
2. Organizations do not generate income in the form of material benefits when receiving “free” loans.
3. When receiving an interest-free loan, an individual borrower may income arises in the form of material benefits from savings on interest, subject to personal income tax.
4. For a borrower who is an individual entrepreneur using the OSNO, simplified tax system and unified agricultural tax, income in the form of material benefits from savings on interest is subject to personal income tax.
5. With individual entrepreneurs using PSN or UTII, the situation is as follows: tax authorities and courts do not agree that when using an interest-free loan for business purposes, the obligation to tax personal income tax does not arise for material benefits from saving on interest. You will still have to pay tax.
Borrower – individual
If the borrower is not a company, but an individual (for example, an employee of the lending organization), then he may have income in the form of material benefits from savings on interest, subject to personal income tax. Why can it? Yes, because it all depends on the purpose for which the loan is issued. If the loan is issued for the purchase (construction) of housing, land plots, then, provided that the tax inspectorate confirms the right of the citizen-borrower to use the property tax deduction, the material benefit is exempt from taxation (paragraph 5, paragraph 1, paragraph 1, Article 212 of the Tax Code of the Russian Federation).
Since when issuing an interest-free loan to a citizen, personal income tax is paid by the lending organization as a tax agent, it is to this organization that the “physician” must provide the appropriate confirmation. A document confirming the right to property tax deduction, may be:
- notification in the form approved by order of the Federal Tax Service of Russia dated January 14, 2015 No. ММВ-7-11/3, issued by the tax office for presentation to the employer (tax agent);
- a certificate in the form given in letter No. BS-4-11/329 dated January 15, 2016, which can be issued by the tax office for presentation to other tax agents (other than employers).
In this case, the document must contain details of the loan agreement on the basis of which the funds were provided, spent on the purchase of real estate in respect of which the loan was provided property deduction. In the absence of relevant details, such a document cannot be the basis for tax exemption. This conclusion was made, in particular, in the letter of the Ministry of Finance of the Russian Federation dated September 21, 2016 No. 03-04-07/55231. It also states that a one-time submission of a supporting document is sufficient, that is, it is not necessary to submit a notification (certificate) annually in order to be exempt from personal income tax in subsequent years when repaying the issued loan.
But if the supporting document is issued not to the borrower directly, but to the spouse, then the exemption from personal income tax can no longer be applied. Officials from the Federal Tax Service of Russia drew attention to this in their letter dated June 23, 2016 No. BS-4-11/1120.
Now let’s talk about how to determine income in the form of material benefits from saving on interest. Since 2016, such income is determined on the last day of each month in which the loan (credit) agreement was valid, regardless of the date of receipt of such a loan (clause 7, clause 1, article 223 of the Tax Code of the Russian Federation). The income itself is calculated based on 2/3 of the Bank of Russia refinancing rate established on the date of receipt of income (clause 1, clause 2, article 212 of the Tax Code of the Russian Federation). In this case, personal income tax is calculated at a rate of 35 percent (clause 2 of Article 224 of the Tax Code of the Russian Federation).
If the borrower has cash income, from which tax can be withheld (for example, salary), then no questions arise. If there is no such income, for example, if the loan was issued to a citizen who is not an employee, then there is no way to withhold tax. This means that the lender is limited to submitting a message to the Federal Tax Service about the impossibility of withholding tax. The message is submitted in the form of a 2-NDFL certificate indicating code “2” in the “Sign” field. In this case, the procedure for filling out a certificate with attribute “2” is similar to the procedure for filling out a certificate with attribute “1”. However, in section 3 “Income taxed at the rate of __%” you need to indicate only those incomes from which tax was not withheld.
Borrower-individual entrepreneur
Does the situation change if the borrower is an individual registered as an individual entrepreneur? It all depends on the tax regime used by the individual entrepreneur.
When applying OSNO, simplified taxation system and unified agricultural tax, income in the form of material benefits from savings on interest is subject to personal income tax and withheld by the lender, as in the case when the borrower is an “ordinary” citizen. That is, there are no special features here. If an individual entrepreneur uses OSNO, then his taxable income is determined in the manner regulated by Chapter 23 of the Tax Code of the Russian Federation. Its norms do not contain exceptions for entrepreneurs in terms of personal income tax definitions when material benefits arise. Therefore, for an individual entrepreneur, income in the form of material benefits, subject to personal income tax, arises on a general basis (taking into account a number of cases when it is exempt from personal income tax).
In case of use entrepreneur of the simplified tax system, The Ministry of Finance changed its opinion on this issue several times. If earlier officials believed that given income is not subject to either the tax paid in connection with the application of the “simplified tax” or personal income tax (letter dated 08/27/2014 No. 03-11-11/42697), then later their position changed. In a letter dated 08/07/2015 No. 03-04-05/45762, they explained that the material benefit from saving on interest for individual entrepreneurs on the simplified tax system should be subject to personal income tax.
The last position seems more correct. After all, the use of the “simplified tax” by an individual entrepreneur does not provide for his release from the obligation to pay personal income tax on income taxed at a rate of 35 percent (clause 3 of Article 346.11 of the Tax Code of the Russian Federation). The same procedure applies to an entrepreneur on the Unified Agricultural Tax (Clause 3 of Article 346.1 of the Tax Code of the Russian Federation).
But there is such an exception in the chapters regulating application of UTII and PSN, no. That is, the use of these modes frees personal income tax payment for any “entrepreneurial” income (including those taxed at a rate of 35 percent). From this we could conclude: if an individual entrepreneur using PSN or UTII uses an interest-free loan for business purposes, then the obligation to tax personal income tax does not arise for material benefits from saving on interest.
However, local tax authorities may not think so. And the courts mostly support them. For example, Arbitration Court The Volga-Vyatka District, in its resolution dated December 8, 2014 No. F01-5102/2014, noted that the circumstances excluding taxation of this type of material benefit are given in Article 212 of the Tax Code of the Russian Federation, and their list is exhaustive. Usage borrowed funds in activities subject to UTII, it is not. By ruling of the Supreme Court of the Russian Federation dated April 16, 2015 No. 301-KG15-2401, it was refused to transfer this case to the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation for review.
Russian organizations from which (or as a result of relations with which) citizens receive income are recognized as tax agents. They are required to calculate personal income tax and withhold the amount of tax directly from the income of citizens upon their actual payment (clause 4 of article 226 of the Tax Code of the Russian Federation). The date of receipt of income is the day of its payment. In this case, payment means, among other things, the transfer of money to the bank account of third parties on behalf of the recipient of the income (subclause 1, clause 1, article 223 of the Tax Code of the Russian Federation). At the same time, the organization must fulfill the duties of a tax agent in such a situation in relation to the recipient of the income (a person with whom it has a contractual relationship, for example, an employment or civil law contract).
In relation to a third party (who does not have any relationship with the organization), it is not recognized as a tax agent. This conclusion follows from a comprehensive interpretation of the provisions of paragraph 1 of Article 24, paragraphs 1, 4 of Article 226, subparagraph 1 of paragraph 1 of Article 223 Tax Code RF and paragraph 1 of Article 182 of the Civil Code of the Russian Federation. Similar clarifications are contained in the letter of the Ministry of Finance of Russia dated September 14, 2010 No. 03-04-06/10-214.
In this case, the tax must be paid by the taxpayer (borrower) independently on the basis tax return, submitted to the tax authority at the place of residence.
Those who have material benefits from saving on interest for using borrowed funds borrowed from foreign organizations will also have to pay personal income tax on their own. Such income is recognized as received from sources outside of Russia. Consequently, tax resident borrowers must themselves determine the amount of income and reflect it in their personal income tax returns on a general basis (subclause 3, clause 1, clauses 2, 3 and 4 of Article 228 of the Tax Code of the Russian Federation). Similar clarifications are contained in the letter of the Ministry of Finance of Russia dated February 27, 2012 No. 03-04-05/6-221.
U Borrower Material benefits received from taxation are exempt from:
1) for transactions with bank cards received from Russian banks during the period of interest-free use of the loan established by the agreement;
2) for borrowed funds raised for the purchase (construction) of housing:
- for loans (credits) provided by organizations and entrepreneurs for the purchase (construction) of housing and land plots for residential buildings;
- on loans provided Russian banks for refinancing (on-lending) of loans issued for the purchase (construction) of housing and land plots for residential buildings (set aside for construction);
3) upon the acquisition (construction) of housing and land plots for residential buildings with the provision of interest-free installments for payment. In fact, such an installment plan is also a type of loan (credit) (Article 823 of the Civil Code of the Russian Federation).
Material benefits from savings on interest on borrowed funds raised for the purchase or construction of housing, as well as from interest-free installment payment for purchased housing, are exempt from taxation if the borrower has the right to receive a property tax deduction for the costs of purchasing housing using borrowed (credit) funds . In this case, the borrower does not have to actually exercise the right to a property deduction - the main thing is that such a right is confirmed (for example, by a notification from tax office).
A material benefit is exempt from personal income tax even if the borrower continues to repay its loan obligations after the property tax deduction has been fully used.
This follows from the provisions of subparagraph 1 of paragraph 1 of Article 212 of the Tax Code of the Russian Federation and is confirmed by letters from the Ministry of Finance of Russia dated December 16, 2014 No. 03-04-05/64921, dated April 8, 2014 No. 03-04-05/15908, Federal Tax Service of Russia dated August 8, 2012 No. ED-3-3/2805.
Dear readers! The article talks about typical ways to resolve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:
APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and 7 days a week.
It's fast and FOR FREE!
Every business manager understands perfectly well that any business must be constantly developed. This requires investment from outside, because rapid growth through profit alone is usually impossible.
The most common attraction option additional funds- bank loans. But it is difficult to apply for and receive it, especially for young companies.
And legal entities are forced to borrow from individuals and other organizations.
Features of concluding a deal
In most cases, in a transaction involving a legal entity borrowing funds from an individual, the lender is the owner of the business or persons affiliated with him.
This option for raising funds is especially often used by young companies that are just starting their activities.
The legislation does not prohibit issuing loans to companies to any person; this could be not only the founder of the company, but also an employee of the company or simply an outsider.
But in practice, it is the owners who most often provide loans to businesses using their own savings.
The transaction must be formalized on paper. Only when using qualified electronic signature both parties can draw up documents electronically.
Important! When lending to a legal entity from a private person, you cannot get by with a simple receipt. It will not have the force of a contract, but will only confirm the fact of transfer of money and nothing more. If you go to court, the lender will be unable to prove practically anything.
A loan can be issued either in cash or in goods. But the latter option, due to the difficulties of processing a refund and possible tax consequences for a legal entity, is used extremely rarely.
The maximum amount of a loan to a legal entity from an individual in any legislative act not specified.
But in some cases, the head of the enterprise may need approval of the transaction from all owners of the organization, if such a provision is stated in.
Legislative acts
The very concept of loans is spelled out in, the main parameters and conditions for concluding a transaction are also described there and a reservation is made about the need to conclude an agreement and the impossibility of using it in this situation.
It is imperative that the borrower and lender take into account the provisions.
It is not always possible to do everything without paying taxes, and the position of each inspectorate on this issue differs significantly.
What needs to be included in the agreement
When drawing up an agreement, the parties must understand that this is the most important document that governs all their relationships regarding the loan, both during its issuance and during servicing and repayment.
Let’s consider what must be included in the loan agreement:
The more detailed the terms of the transaction are stated in the contract, the fewer questions each party will have in the future.
If the loan agreement does not indicate a specific term, then it will be considered unlimited. The borrower will have to return it within 30 calendar days from the date of receipt of the request from the lender.
It is also possible to directly indicate in the agreement the open-ended nature of the transaction. But it is necessary to understand that tax authorities do not have an unambiguous attitude towards this, and if such loans are not repaid for a long time, they may charge additional income tax.
Requirements for borrowers
Most requirements for borrowers will depend on the specific lender. It is he who decides to whom he is ready to lend funds, and on what terms.
There are some mandatory requirements to borrowers – legal entities:
- Availability of state registration.
- The activities of the organization should not be suspended.
- Permission for the transaction from the owners (if it is required by the Charter).
- The organization is not subject to bankruptcy proceedings, etc.
Individual lenders may set a minimum period for the borrower company to conduct business, require no losses and profit, etc. This is their complete right.
But since in most cases the lender is one of the business owners, no additional requirements are imposed on the legal entity borrower.
Video: issuing a loan to a legal entity
Sample loan agreement for a legal entity from an individual
It is necessary to approach drawing up a contract very responsibly. All parameters of the transaction will depend on its content, and it can also be demanded tax authorities and have a significant impact on tax calculations for both the borrower and the lender.
There are many types of loan agreements. They may provide for the payment of interest for the use of money or not, be secured by a pledge or guarantee or provided without security, be of a targeted or non-targeted nature, etc.
It is necessary to take into account all these points in advance when drawing up the contract, otherwise it will not always be possible to make changes later.
Interest-free type
For a long time, interest-free loans were the main way to receive funds from founders for replenishment working capital and other business expenses of the organization.
If necessary, the business owner received the funds back and no additional expenses there was no transaction between either party.
But the opinion of some tax inspectorates changed, and some organizations began to receive additional tax charges on profits that they allegedly received from saving on interest.
The courts, on the contrary, sided with the borrower and declared such acts invalid. It is better to clarify this point in advance with the service organization of the Federal Tax Service, because not everyone wants to sue.
Important! An interest-free loan agreement must contain a direct indication of the absence of interest.
If there is no data on interest, the borrower must pay it based on the key rate of the Central Bank of the Russian Federation on a monthly basis.
With an interest-free loan, the lender does not make a profit from the accrued interest. Also, this type of transaction allows you to repay the debt ahead of schedule at any time, regardless of the period specified in the agreement.
Percentage type
If the agreement provides for the payment of remuneration to the lender for the use of borrowed funds, then it is called an interest agreement.
Size interest rate agreed upon by the parties through negotiations and can be represented by interest per day, week, month, quarter or year of use of funds.
It is also allowed to indicate specific amount The amount the borrower pays to the lender for part or all of the loan term.
This version of the agreement is most often used when a business raises money from employees or simply private investors.
The text of the agreement must specify the rate or specific amount of remuneration, the procedure for calculating and paying interest.
If the loan agreement does not indicate any rates, then interest will be calculated at key rate Central Bank and must be paid to the lender monthly, regardless of the term of repayment of the principal debt.
You can download a sample interest-bearing loan agreement between a legal entity and an individual here.
Targeted loan
In most cases, loan agreements do not stipulate conditions on where the legal entity will spend them.
But there are situations, for example, if there are a large number of owners, when the lender wants to give a loan only for certain purposes and gain control over their use. In this case, enters into a targeted loan agreement ().
At the request of the lender, the organization will have to provide him with documents that confirm that the funds were sent in accordance with the terms of the loan agreement and nothing else.
If the condition is about intended use is violated by the borrower, the lender may demand immediate repayment of the entire amount of the debt and the actual accrued interest.
When secured with collateral
Sometimes the lender wants to receive guarantees of repayment of funds, especially if we are talking about a fairly large loan amount. A surety or pledge is usually accepted as security.
Many lenders consider the second option much more preferable, especially if the recipient of the funds has liquid property.
The loan agreement must indicate that it is secured by collateral of the borrower’s property and specify how specifically. Additionally, you will need to conclude a collateral agreement.
Methods of transferring money
The parties to the transaction must indicate in the agreement how the lender will transfer funds to the borrower. This avoids confusion, because the loan agreement is considered concluded only after the transfer of money.
There are two main ways to transfer funds when an organization borrows from an individual:
- cash;
- bank transfer to a bank account.
Cash through the organization's cash desk
Transferring funds to the borrowing company is usually used if the loan amount is relatively small. In this case, they are transferred to the organization’s cash desk, and the borrower receives a receipt for the cash receipt order, which will confirm the fact of the transfer of funds.
It cannot be replaced with a simple receipt, as this will violate accounting rules and may lead to fines from regulatory authorities.
The organization is obliged to hand over the funds borrowed under the loan agreement to the servicing bank for crediting to the current account.
You cannot immediately use money in cash for expenses or issue it on account, as this violates cash discipline.
To current account
One of the most convenient ways transfer of funds from the lender, an individual, to the borrower, a company, is a transfer to a bank account.
In this case, a payment order marked by the sending bank will confirm the fact of transfer of funds.
In case of disputes with the borrower, the lender will also be able to obtain confirmation of the receipt of funds in the company's account by submitting a corresponding request through his bank.
List of required documents
Any transactions related to finance must be recorded on paper or in a form electronic document. The individual lender will only need a passport to complete the transaction.
The borrower organization must provide at least the following documents:
- Copies of TIN and OGRN certificates.
- A copy of the Charter.
- A copy of the Order on the appointment of a manager.
- Power of attorney (if the agreement is signed by a person other than the manager).
Some lenders additionally ask for copies of other documents:
- balance sheet, profit and loss account;
- business plan or development strategy of the organization;
- documents on the pledge (if any).
Return period
The parties have the right to independently set the loan repayment period, as well as enter into an open-ended agreement.
In the latter case, the borrower will be obliged to repay the debt amount within 30 days upon receipt of a written request from the lender.
In practice, loan agreements lasting more than 3 years with sufficient small amounts arouse suspicion among the tax inspectorate and may lead to equating the loan with free assistance and additional income tax.
This can be avoided by providing in the main agreement a condition for a possible extension, or even better, by re-executing the loan agreement.
What are the risks of the parties?
The lender's main risk is the possible non-repayment of funds. Of course, if we are talking about a legal entity where the only founder and director is one person, then non-repayment can only happen because of a “failed” business and the borrower himself will be to blame.
But in other cases, it is better to minimize this risk by obtaining security in the form of collateral or surety.
For the borrower there is a risk of loss of property pledged under the agreement or as a result of judicial collection. Therefore, the borrowing company must make careful calculations before borrowing money.
Both parties to the transaction may also experience tax risks, which will depend on the nature of the loan and other parameters of the contract.
Existing taxation
If the loan is interest-bearing, the lender receives income from the interest received under the agreement.
He must pay personal income tax on the amount of remuneration received. persons at a rate of 13%.
If the lender is an employee of the borrower company, then the company’s accounting department can retain and transfer it to the budget, and it can also be entrusted with submitting the necessary information to the Federal Tax Service.
If the lender does not officially work for the borrower company, then he will have to independently report to tax service and pay the necessary contributions to the budget.
The borrower, if there is interest, can include them in expenses, thereby reducing the base for calculating income tax or single tax (if using simplified tax system income– minus expenses).
In the absence of interest, some inspectorates begin to believe that due to savings on interest, the enterprise has made a profit and are trying to increase the tax base. But if the loan came from the founder, then they usually fail.