Interest-free loan from an individual, consequences of the organization. Tax implications of interest-free loans

Any company is at risk when receiving a loan from the founder, regardless of whether interest accrues on it or not. As a rule, the actions of the founder are controlled by authorized bodies. The tax consequences of an interest-free loan in 2020 depend on the category of the transaction.

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General concepts

A legal entity can borrow funds from another legal entity, its own or a third-party founder.

Tax consequences of issuing an interest-free loan

Income is recognized as economic benefit if it is subject to assessment and complies with the standards of Chapters 23 and 25 of the Tax Code of the Russian Federation.

What features does it have?

The definition of “material benefit” was established by the Presidium of the Supreme Arbitration Court, by the instructions of Chapter 23 of the Tax Code of the Russian Federation. On the one hand, the saved interest charges are included in the tax base for personal income tax.

On the other hand, in accordance with the instructions of Chapter 25 of the Tax Code of the Russian Federation, they are included in the category of material benefits obtained from the use of borrowed funds. It is not considered income for income tax purposes.

According to the instructions, the wording “related person” means an individual or legal entity with a share in the authorized capital of the enterprise of more than 25%.

It becomes dependent on the share invested by it, therefore in most cases the legal entity acts to the detriment of its personal interests.

In accordance with the provisions of the article, a transaction concluded between related persons is controlled.

It notes that the amount of income over one year should exceed 1 billion rubles.

If the founder provided an interest-free loan in a smaller amount, then he is not subject to additional tax for income lost from interest charges.

A legal entity that receives an interest-free loan from the founder receives a material benefit.

But since the instructions of Chapter 25 of the Tax Code of the Russian Federation do not establish a procedure for establishing benefits, the tax base does not increase.

If the opposite situation arises, when some legal entity issues a loan without interest to the founder - an individual, he receives a material benefit.

It is presented as non-taxable interest charges. Individuals are charged a personal income tax of 13%.

For example, an employer issues an interest-free loan to an employee in the amount of 200,000 rubles for six months. He must pay personal income tax equal to 1,200 rubles.

If he borrows the same amount from a bank at the minimum interest rate, he must pay about 6,000 rubles.

Expenses of a legal entity applying the simplified taxation system to repay previously borrowed funds do not reduce the tax base. The norm was established in accordance with the instructions of the letter from the Federal Tax Service.

Risks of the procedure

A desk or tax audit is carried out in order to identify the fact that a legal entity has received unjustified material benefits.

It can be formed due to a reduction in the tax base by reducing the transaction price. The circumstance entails the formation of a risk to which it and its founder are exposed.

If this type of fact is revealed, additional income tax is assessed taking into account the market value and interest accrued on the loan.

A legal entity applying the simplified tax system is exposed to risk if the loan issued to it by the founder is not repaid within the period established by the agreement. In such a situation, taxable income is generated.

Unrealized income becomes accounts payable, which are written off due to the expiration of the statute of limitations. It must be reflected in the tax base established according to the simplified tax system.

In accordance with the instructions of the Tax Code, the statute of limitations for accounts payable is 3 years. It is counted from the day when it was necessary to repay the loan.

For example, the repayment date of an interest-free loan is January 31 of the current year. In this case, the countdown of the limitation period will begin on February 1.

Design features

Individual legal entities, interdependent and independent economic entities seek to obtain an interest-free loan in order to redistribute funds among themselves.

Many entrepreneurs who have not completed debt forgiveness in a timely manner and who have not posted the repayment of borrowed funds are confused by the innovations.

They do not know what to do to avoid accumulating debts to the federal tax service and administrative liability.

At the moment, there are several ways to avoid personal income tax.

These include:

Indicators	Description
Re-registration of the loan agreement	The measure allows for a guaranteed reduction in the size of the tax base, because it will be calculated based on the date specified in the loan agreement. In this case, a smaller amount will be paid. As for outstanding borrowed funds, the situation will be resolved without any unforeseen financial consequences.
Transferring a transaction to another category by charging interest on borrowed funds	as a result of the transaction, taxation will be carried out according to a different scheme, and the amount of tax will be calculated using different formulas

But the best option is to apply for debt forgiveness, which will allow you to avoid paying a tax of 35%.

An interest-free loan will be regarded as the legal entity’s net profit.

It will be subject to personal income tax at the rate of 13%, provided for all Russian tax residents. The Federal Tax Service must be notified by filing the appropriate tax return.

Based on it, the authority will draw up taxes, setting the final repayment period for the debt.

Important aspects

Borrowed funds must be returned to the lender with property of a different kind that was taken by the borrower. For example, you cannot return property in place of money.

This kind of situation is regarded as the sale of goods by a legal entity, therefore it must pay income tax.

Its size is determined by the type of taxation system chosen. For example, it is 6% if the enterprise uses the simplified tax system.

The resolution of the plenum of the presidium, issued on August 30, 2004, noted that an interest-free loan between interdependent persons does not have tax consequences.

They do not receive income that is subject to taxation as income tax.

The same was said in letters from the Ministry of Finance No.:

, published April 2, 2008.
, released on July 17, 2008.
, released on August 29, 2011.

The material benefit received by a legal entity from the use of an interest-free loan does not increase the tax base for income tax. It is not included in the number of taxable objects from which income tax is withdrawn.

If the loan agreement is not concluded, the transaction will be officially declared invalid.

Any transaction must be documented if the amount of the interest-free loan provided by the founder exceeds 1,000 rubles.

In accordance with the innovations, the material benefit of legal entities will be determined according to data corresponding to the end of the expiring month.

Consequently, they are required to pay tax on existing loan debts if they do not have official documentation of their forgiveness.

The amount of tax is determined not only by the amount of funds received by the borrower, but also by the timing of their use.

As for the income tax on interest-free loans, from this year legal entities are required to pay it every month.

Borrowed funds received during the conclusion of a loan agreement and returned within the period established by it are not taxed.

The term “interest” refers to any income that was previously declared by the lender. The norm is noted in the instructions of Article 43 of the Tax Code of the Russian Federation.

It includes the difference between the costs of the same type of goods delivered in different periods of time.

As a rule, it is formed through obligations on debts regardless. In essence, interest accruals are income that is generated from debt obligations.

An interest-free loan in accordance with the instructions is not included in the category of income if it is returned to an individual.

But the interest accrued on it, in accordance with the terms of the loan agreement, will turn into income received by the individual. It is subject to income tax.

Transactions to provide the above loan in accordance with the instructions can be carried out:

interdependent persons;
persons who are not related to each other by some kind of dependence.

The first type of transactions can be controlled by the Federal Tax Service or uncontrolled.

The procedure for calculating the tax base is provided for in the instructions. It must be determined taking into account all income of the taxpayer, regardless of the form of the loan.

Income, presented as a material benefit, is obtained through interest savings. They are accrued on funds taken by the borrower, as noted in the instructions.

If the borrower receives it, then the date of actual receipt of income becomes the day of payment of interest on borrowed funds. The norm has been established.

Resolution of the RF Armed Forces:

Letter from the Federal Tax Service of the Russian Federation:

Letters from the Ministry of Finance:

Number Description
No. 03-03-06/1/245, published April 2, 2008 on the procedure for taxing profits when receiving an interest-free loan
No. 03-03-06/1/415, published July 17, 2008 procedure for maintaining tax accounting of income (expenses) in the form of interest under loan agreements, credit agreements, bank accounts, bank deposits, as well as interest on securities and other debt obligations

Interest-free loans between legal entities are one of the easiest ways to redistribute cash flows within a group of companies. However, as arbitration practice shows, issuing interest-free loans is fraught with additional charges of income tax (for organizations) and personal income tax (for individual entrepreneurs). Let's analyze what tax risks arise when carrying out such transactions?

According to current legislation, a loan agreement can be either compensated, i.e. providing for the payment of interest for the use of borrowed funds, and gratuitous, when the borrower’s fulfillment of the obligation is limited only to the repayment of the debt (clause 1 of Article 809 of the Civil Code of the Russian Federation). The corresponding condition is agreed upon in the contract.

Claims from tax authorities

Interest-free loans can be issued to third parties and related parties. In the first case, tax risks are possible for the lender in terms of non-recognition of interest expenses under the loan agreement, the funds of which are used to issue an interest-free loan. In the second, in connection with the occurrence of non-operating income from the lender. With regard to transactions under interest-free loan agreements, the tax authorities are guided by the explanations given in letters of the Ministry of Finance of Russia dated May 25, 2015 No. 03-01-18/29936, dated October 2, 2013, No. 03-01-18/40821, dated August 13. 13 No. 03-01-18/32745. To such transactions, the financial department applies the provisions of paragraph 1 of Art. 105.3 of the Tax Code of the Russian Federation, which establishes that the lender’s income is determined based on the amount of interest that would be received by him in the event of a transaction between persons who are not interdependent, in commercial and (or) financial conditions comparable to the analyzed transaction, i.e. in a comparable transaction.

Let us analyze the validity of the claims of the tax authorities, for which we turn to the relevant provisions of Chapter 25 of the Tax Code of the Russian Federation.

Income for the purpose of calculating profit tax is recognized as income from the sale of goods (work, services), property rights and non-operating income. The list of non-taxable non-operating income is given in paragraphs. 10 p. 1 art. 251 of the Tax Code of the Russian Federation: when determining the tax base, 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 under debt obligations), as well as funds or other property received to repay such borrowings. Accordingly, when determining the tax base, expenses in the form of funds or other property that are transferred under credit or loan agreements (other similar funds or other property, regardless of the form of registration of borrowings, including debt securities), as well as in the form of funds or other property, are not taken into account. which are used to repay such borrowings (clause 12 of article 270 of the Tax Code of the Russian Federation).

Does the borrower, a legal entity, generate income? As follows from the above legal norms, no. Specialists of the Ministry of Finance of Russia also admit (letter dated February 9, 2015 No. 03-03-06/1/5149) that the procedure for determining benefits for the purpose of calculating income tax has not been established, therefore, what an organization receives from using an interest-free loan does not increase the base on corporate income tax. The tax authorities also agree with this position (letters from the Federal Tax Service of Russia for Moscow dated November 22, 2011 No. 16-15/112957@, dated September 27, 2011 No. 16-15/093520@).

Loan between legal entities

In practice, there are often situations when a legal entity that is part of a group of companies attracts credit resources at a market interest rate and subsequently transfers them to another company under an interest-free loan agreement.

Example

Under the loan agreement, the organization raised funds at 15% per annum to replenish working capital (loan amount - 60 million rubles). These funds were sent to another organization under an interest-free loan agreement for the subsequent purchase of cars.

Based on these circumstances, the tax inspectorate concluded that expenses in the form of interest under a credit agreement and a loan agreement are economically unjustified, since the funds received under these agreements were transferred to a related party under unreal transactions (executed only on paper, without real business purpose and of a purely formal nature). At the same time, own collected funds are withdrawn from circulation by issuing interest-free loans to the founder or other interdependent organizations. During the audit, it was also found that everyone provides each other with interest-free loans, while receiving credit funds from banks. The amount of accrued interest on loan agreements directed to interdependent companies was excluded from the expenses taken into account when calculating income tax. Having disagreed with the decision of the tax inspectorate, the organization went to court. As the judges indicated in the resolution of the Arbitration Court of the North-Western District dated July 1, 2015 No. A56-60966/2014, the redistribution of funds within a group of companies in itself does not contradict the requirements of the Tax Code of the Russian Federation. The court assessed the tax inspectorate’s arguments based on the position set out in the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 12, 2006 No. 53 “On the assessment by arbitration courts of the validity of the taxpayer receiving a tax benefit.”

A tax benefit cannot be recognized as justified if it was received by the taxpayer outside of connection with the implementation of real business or other economic activity.

The validity of obtaining a tax benefit cannot be made dependent on the methods of attracting capital to carry out economic activities or on the efficiency of using capital.

The tax authorities did not prove that the main goal pursued by the company was to generate income solely or primarily through tax benefits (reduction of taxable profit due to non-operating expenses) in the absence of intention to carry out real economic activity.

For the purposes of tax control, all transactions concluded by business entities are divided into transactions between interdependent persons and transactions between persons who are not interdependent (clause 1 of Article 105.3 of the Tax Code of the Russian Federation).

At the same time, as follows from the set of norms of the Tax Code of the Russian Federation, transactions between related parties can be divided into two groups:

Controlled, recognized as such subject to the provisions of Art. 105.14 Tax Code of the Russian Federation;

Other transactions between related parties (uncontrolled).

Only if the loan agreement is a controlled transaction, the lender must show virtual income in the amount of interest not received on the interest-free loan (letters of the Ministry of Finance of Russia dated October 2, 2013 No. 03-01-18/40821, dated August 13, 2013 No. 03 -01-18/32745, dated 07/18/12 No. 03-01-18/5-97, dated 02/24/12 No. 03-01-18/1-15). In this regard, the tax authorities conclude that any income that could be received by one of the related parties under such transactions should be taken into account for tax purposes by this person. In other words, in controlled transactions for the provision of an interest-free loan, the lender’s income is determined based on the amount of interest that would be received by the lender in the event of a transaction between persons who are not interdependent, in commercial and (or) financial conditions comparable to the analyzed transaction, i.e. in a comparable transaction.

The interdependence of the parties to a transaction as a factor influencing the procedure for taxation of the results of this transaction can be established by the tax authority only as a result of carrying out individual tax control activities outside the framework of an on-site or desk tax audit (paragraph 3 of clause 1 of Article 105.17 of the Tax Code of the Russian Federation).

It should be noted that the current judicial practice on this issue is ambiguous. In a number of cases, courts point out that failure to obtain a positive financial result in the form of interest under a loan agreement is beyond the control and assessment of the tax authority, and concluding transactions with interest-free loans does not lead to either an increase or a decrease in the tax base for income tax none of the parties to the agreement, and therefore the corresponding transactions should not be recognized as controlled (clause 13 of article 105.3, clause 11 of article 105.14 of the Tax Code of the Russian Federation).

Moreover, one of the courts noted that transactions between interdependent organizations that are payers of income tax are considered controlled if the amount of income from such transactions in a calendar year exceeds the value of the amount limit specified in paragraphs. 1 item 2 art. 105.14 of the Tax Code of the Russian Federation (since 2014 - 1 billion rubles).

In other words, the court refuted the arguments presented in the letter of the Federal Tax Service of Russia dated September 16, 2014 No. ED-4-2/18674@, in part that verification of price compliance in uncontrolled transactions can be carried out between interdependent persons.

As a result, the court decided that the rules and requirements that came into force on January 1, 2012, which are set out in section V.1 of the Tax Code of the Russian Federation, do not make it possible to clearly establish the possibility of their application to the analyzed situation, namely with regard to the possibility of taxation of material benefits from the provision of interest-free loans. At the same time, Chapter 25 of the Tax Code of the Russian Federation does not consider the material benefit from savings on interest for the use of borrowed funds as taxable income. According to the court, the current legislation on taxes and fees lacks clarity on the issue of the possibility of taxation of material benefits received through the provision of interest-free loans by an interdependent party, therefore all irremovable doubts and ambiguities in acts of legislation on taxes and fees must be interpreted in favor of the taxpayer (decision of the Court of Justice of Yamalo -Nenets Autonomous Okrug dated April 20, 2015, No. A81-165/2015).

However, in one of the court cases, the tax authorities managed to win the dispute (resolution of the Administrative Court of the North Caucasus District dated April 1, 2015 No. A53-28342/2013). The judges agreed with the tax authorities on the issue of unreasonably inflating expenses, obtaining unjustified tax benefits through the creation of a scheme by interdependent persons to unreasonably inflate expenses.

Some judges, without denying the possibility of the lender receiving income when issuing interest-free loans to interdependent persons, do not agree with the opinion of the tax authorities regarding the formation of information on market rates.

In one of the cases, the court considered that a bank deposit agreement is not comparable to a loan agreement, since the tax authority did not take into account the essential condition that under a bank deposit agreement one of the parties to the transaction is always the credit organization (bank), for which this type of activity is the main one (decision of the Stavropol Territory AS of August 5, 2015, No. A63-2718/2015).

In another court case, it was pointed out that when comparing the terms of these agreements, among other things, the following should be taken into account:

Credit history and solvency, respectively, of the loan recipient, the person whose obligations are secured by a guarantee or a bank guarantee;

The nature and market value of security for the fulfillment of the obligation;

The period for which the loan or credit is provided;

The currency that is the subject of the loan or credit agreement;

The procedure for determining the interest rate (fixed or floating);

Other conditions that affect the amount of the interest rate (remuneration) under the relevant agreement (resolution of the Fourteenth Arbitration Court of Appeal dated October 15, 2015 No. A05-4564/2015).

Calculations prepared by tax authorities on the basis of "SPARK", as well as the information used by the "SPARK" system, do not meet the requirements of the Tax Code of the Russian Federation and are also not accepted by the courts (resolution of the Ninth Arbitration Court of Appeal dated September 30, 2015 No. A40-204810/2014) .

The courts are unanimous that interdependence can have legal significance for tax control purposes only if it is established that such interdependence is used by the parties to the transaction as an opportunity to carry out concerted dishonest actions aimed at illegally understating tax payments.

Thus, at present, there is no judicial practice with unambiguous conclusions regarding the additional assessment of income tax on virtual income for transactions of issuing interest-free loans between interdependent legal entities. In addition, even if the courts agree with the need to calculate virtual income from the lender, the methodology for calculating such income is unclear.

Let's consider such an issue as the possibility of recovering losses from the director of an organization for a transaction with an interest-free loan. Thus, in one of the organizations, the director, without obtaining the consent of the founders, transferred an interest-free loan to an interdependent company from the organization’s account to the card account of the company director. The result of this operation was a trial, as a result of which the court ordered the director to return the amount of the interest-free loan. When making their decision, the judges referred to clause 1 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 No. 62 “On some issues of compensation for losses by persons included in the bodies of a legal entity,” which explained that the sole executive body is obliged to act in the interests of the legal entity persons in good faith and reasonably, and in the event of a violation of this obligation, the director, at the request of the legal entity and (or) its founders (participants), must compensate for losses caused to the legal entity by such a violation (Resolution of the AS of the Ural District dated September 22, 2015 No. F09-6778/ 15).

If the borrower is an individual entrepreneur or individual

The situation is different if one of the borrowers is an individual or individual entrepreneur. Clause 1 of Art. 210 of the Tax Code of the Russian Federation provides that when calculating the tax base, all income of the taxpayer received by him, both in cash and in kind, or the right to dispose of which he has acquired, as well as income in the form of material benefits, determined in accordance with Art. 212 of the Tax Code of the Russian Federation, according to paragraphs. 1 and 2 of which such income is the material benefit received from savings on interest for the taxpayer’s use of borrowed (credit) funds provided by organizations or individual entrepreneurs. In the case of acquiring income in the form of a material benefit, the date of its actual receipt is the day the taxpayer pays interest on borrowed funds (clause 3, clause 1, Article 223 of the Tax Code of the Russian Federation), and in a situation with an interest-free loan, this is the date of its repayment (Definition of the Supreme Court RF dated April 16, 2015 No. 301-KG15-2401).

In other words, if the borrower under an interest-free loan agreement is an individual entrepreneur, then for the period of use of gratuitous funds personal income tax is calculated at a rate of 35% (clause 2 of Article 224 of the Tax Code of the Russian Federation).

Note that if an interest-free loan agreement is concluded between spouses who have the status of individual entrepreneurs, then income in the form of material benefits from saving on interest does not arise. In this case, the presence of the legal status of taxpayers - individual entrepreneurs does not exclude the application of the joint property regime between spouses, which is primary and applies to all income received during the marriage. Money transferred by way of loan from the common joint property of both spouses to their common joint property cannot actually be borrowed.

Thus, the funds received by an individual entrepreneur from his spouse under a loan agreement are their common property, therefore these funds cannot be considered income for personal income tax purposes (resolution of the Fourth Arbitration Court of Appeal dated April 2, 2015 No. A78-7533/2014 ).

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Financial assistance in the form of borrowing a certain amount from one party to another is quite common.

But what nuances should be taken into account if the parties to the transaction are legal entities? How might such a transaction affect their taxation?

Is such a deal possible?

A loan is a loan from one person to another of a certain amount of money or a certain thing.

Loans can be divided into:

Paid - that is, with interest. The borrower pays a certain percentage for the use of the lender's funds or property.
Interest-free.

What is an interest-free loan? This is a transaction where one party (the lender) lends a certain amount of money to another party (the borrower) for a certain period.

Only the lender does not charge the borrower interest for using his money. That is, the borrower borrows a certain amount, and he returns exactly the same amount after the agreed period.

In the business sector, such loans are quite common. They are used by enterprises that are partners in one or another area of business, as well as those enterprises that are not connected with each other on the market.

The following proposals exist:

But you should understand that an interest-free loan means no profit. Therefore, there are certain nuances in the execution of the agreement itself, and certain tax consequences for both parties to the transaction. The subject of the transaction can be not only money, but also things that have certain generic characteristics.

A prerequisite for issuance is the execution of a written agreement between the parties. But, if some property is provided as a loan, then this type is a priori considered interest-free. If the subject of the agreement is money, then it is more profitable to issue an interest-bearing loan. Otherwise, the parties may face unpleasant tax consequences.

Video: loan agreement between legal entities

Reflection in the law

The procedure for granting any loan is regulated by civil law, namely.

There is no separate regulatory act that would regulate the procedure for issuing borrowed funds to legal entities. Therefore, it is worth following the rules of civil law. But, if the amount exceeds 600 thousand rubles at a time, then the transaction must be registered.

Design features

There are no legal grounds for the emergence of obstacles to concluding an interest-free loan agreement between legal entities.

But there are some features that need to be taken into account:

It must be compiled	in writing
Signed by both parties	since this is a legal entity, the document is also certified by the seal of each party
If the object of the transaction is cash	then it is necessary to indicate that the agreement is interest-free. Otherwise, there may be tax consequences
If the object is property	then there is no need to give any instructions. The contract will be considered interest-free by default
If the loan amount exceeds 600 thousand rubles	the document is subject to mandatory registration, as well as other features relating to the nature of the transaction

Interest-free loan agreement between legal entities

This may be either the date of the debt officially confirmed by the borrower, or the date of fulfillment of the obligation (commitment of any actions indicating recognition of the obligation);

when using the cash method - on the date of receipt of funds (clause 2 of Article 273 of the Tax Code of the Russian Federation).

Often organizations provide loans not in cash, but in kind. Then the situation with taxes is somewhat different (Table 2). Reflection in tax accounting Lender organization Borrower organization OSNO Corporate income tax No expense is recognized in the form of the cost of goods, raw materials or materials transferred to the borrower under a loan agreement, as well as income in the form of the cost of goods, raw materials or materials received from the borrower in repayment debt (clause 12, article 270, subclause 10, clause 1, art.

What are the tax consequences of an interest-free loan?

We will also consider taxation issues if an organization issues a loan to an individual registered as an individual entrepreneur. In fact, nothing will change, because individual entrepreneurs are individuals, i.e. the taxation procedure is, first of all, regulated by the provisions of Chapter. 23 Tax Code of the Russian Federation. If an individual entrepreneur applies the general taxation regime or the simplified tax system, the tax base is determined in a general manner.

The only difference is that the individual entrepreneur will be obliged to calculate and pay the tax to the budget himself. Note: According to the position of the Russian Ministry of Finance, in the case of an interest-free loan, the date of receipt of income from savings on interest should be considered the date of repayment of the borrowed funds. But you need to take into account that since 2016

IP issued an interest-free loan to LLC (nuances)

The Tax Code has been amended and the date of receipt of income in the form of material benefits will be recognized as the last day of each month during the period for which borrowed funds were provided (Federal Law No. 113-FZ dated May 2, 2015). Option 3: lender is an individual, borrower is an organization. Recently, this situation has become quite common for a number of reasons. Some organizations in this way are trying to disguise the non-payment of wages to their employees, others are trying to obtain funds to increase the organization’s net assets (if they are provided by the founders), and others are trying to solve problems that have arisen due to the difficult economic situation.

We list a number of points that must be taken into account if an organization receives an interest-free loan from an individual.

Loan - tax consequences

In the first case, tax risks are possible for the lender in terms of non-recognition of interest expenses under the loan agreement, the funds of which are used to issue an interest-free loan. In the second, in connection with the occurrence of non-operating income from the lender. With regard to transactions under interest-free loan agreements, the tax authorities are guided by the explanations given in the letters of the Ministry of Finance of Russia dated May 25, 2015.

No. 03-01-18/29936, dated October 2, 2013, No. 03-01-18/40821, dated August 13, 2013, No. 03-01-18/32745. To such transactions, the financial department applies the provisions of paragraph 1 of Art. 105.3 of the Tax Code of the Russian Federation, which establishes that the lender’s income is determined based on the amount of interest that would be received by him in the event of a transaction between persons who are not interdependent, in commercial and (or) financial conditions comparable to the transaction being analyzed, i.e. comparable transaction.

The organization took out an interest-free loan from an individual entrepreneur: tax consequences

Attention

Risks of the procedure A desk or tax audit is carried out with the aim of identifying the fact that a legal entity has received an unjustified material benefit. It can be formed due to a reduction in the tax base by reducing the transaction price. The circumstance entails the formation of a risk to which it and its founder are exposed.

If this type of fact is revealed, additional income tax is assessed taking into account the market value and interest accrued on the loan. A legal entity applying the simplified tax system is exposed to risk if the loan issued to it by the founder is not repaid within the period established by the agreement. In such a situation, taxable income is generated.
Unrealized income becomes accounts payable, which are written off due to the expiration of the statute of limitations. It must be reflected in the tax base established according to the simplified tax system.

Four options for an interest-free loan

The type of loan must be noted in the loan agreement. If such a condition is not provided, the transaction may become a compensated transaction. Who does it apply to? An interest-free loan can be taken by any individual or legal entity, regardless of the organizational and legal form of an economic entity, which is recognized by law.

Info

It fixes the method of assigning and using property, its legal status and goals of economic activity. As for an individual, he must be an adult and have legal capacity. He must be responsible for his actions and be aware of them.

In this case, the age of an individual must vary from 21 years to 65-70 years. Where to apply To get an interest-free loan, an individual can contact any microfinance organization, his employer.

Tax risks under interest-free loan agreements

Judicial practice Despite the fact that most claims on this issue were resolved in favor of taxpayers, the number of claims from the Federal Tax Service did not decrease for a long time. The situation changed when the Supreme Arbitration Court of the Russian Federation issued a resolution in which it indicated that the Tax Code does not consider the benefit from savings for the use of borrowed funds as a basis for calculating the NPP. Such transactions are not recognized as a service for VAT purposes, and funds under a loan agreement are not received free of charge.
Therefore, the negative consequences of providing an interest-free loan are minimized. Risks Detailed consideration requires transactions in which funds received under a loan agreement are used to issue an interest-free loan between legal entities. The tax consequences in such transactions are more serious.

Interest-free loans between legal entities

Despite the fact that the legal dispute was resolved in favor of the taxpayer (due to insufficient evidence on the part of the tax authorities), under similar circumstances court cases cannot be ruled out, the outcome of which is difficult to predict. The subject of consideration by some arbitration courts were cases related to the procedure for determining the material benefit of the lender when issuing interest-free loans to interdependent persons. For the purposes of tax control, all transactions concluded by business entities are divided into transactions between interdependent persons and transactions between persons who are not interdependent (clause

1 tbsp. 105.3 of the Tax Code of the Russian Federation). At the same time, as follows from the set of norms of the Tax Code of the Russian Federation, transactions between interdependent persons can be divided into two groups: - controlled, recognized as such subject to the provisions of Art. 105.14 Tax Code of the Russian Federation; — other transactions between related parties (uncontrolled).

The article will reveal the main points related to the tax consequences of an interest-free loan between legal entities in Russia in 2020.

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!

In what cases does such a need arise, what are the consequences, and what judicial practice shows - further. The loan is available not only to individuals, but also to legal entities, and it is interest-free.

Entrepreneurs take it to distribute funds between partners. Before concluding such a deal, you need to familiarize yourself with the features of the procedure.

General points

An interest-free loan is an agreement between two participants, according to which one transfers to the other for use money or things that are not issued in a single copy.

That is, the borrower receives the return of finances or property in the same amount.

When concluding such an agreement, the decision of the general meeting of founders should be taken into account - they must give their consent.

To avoid problems in the future, it is necessary to control the compositional features.

Attention should be paid to the following:

The transaction is voluntary, so the maximum loan amount is not regulated by the state - it is determined by the parties independently.

The terms of an interest-free loan are specified in the contract, so its content must be carefully considered.

When applying for an interest-free loan, legal entities make the following mistakes:

they do not stipulate that finance is provided without interest;
do not indicate the date of refund;
If the loan is things or objects, their list and quantity are not recorded.

These errors qualify the agreement as an interest agreement, which means you will have to pay the lender a fee and pay taxes.

The tax base is the cost of the items provided. By receiving the items, the borrower does not receive a profit to include in the tax base.

When repaying the loan, VAT is paid. The tax consequences of an interest-free loan between legal entities do not arise, since there are no additional costs.

Claims from the Federal Tax Service

Interest-free loans are issued to third-party companies and affiliates. In the first situation, tax risk is possible for the one who issues the loan - non-recognition of interest costs in accordance with the money whose money is aimed at issuing the loan.

In the second situation, non-operating income arises for the one who receives the loan. In relation to such transactions, tax services are guided by the explanations provided in the Letter of the Ministry of Finance.

Video: interest-free loan to LLC

It states that the lender's profit is established based on the amount of interest that would have been received or if the transaction had been between unrelated parties. The Tax Inspectorate's claims are justified by the provisions of the Tax Code.

Accounting entries

The accounting entry for interest-free loans is no different from a regular loan. When receiving a loan without interest, the following entry is made in the accounting records - Debit 50 (51) Credit 66 (67).

It confirms receipt of a cash loan in the form of items or things. If the loan terms exceed 1 year, line 67 of the balance sheet is used for accounting.

Since there are no percentages, 91 lines are not used to display them. By issuing an interest-free loan, it will not be possible to display its investment properties, since it does not bring commercial profit.

Similar operations are carried out on account 76 - settlements with debtors and creditors. Basic wiring:

This applies to issuing an interest-free loan. Getting a loan:

Loan repayment:

During the repayment of the loan, funds cannot be capitalized in the form of profit; these are only settlements with the creditor and debtor.

Arbitrage practice

Judicial practice on this issue is not clear. Despite the fact that many risks were resolved in favor of the taxpayer, the number of claims from the Tax Authorities did not decrease.

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Such a transaction is not considered a service for the purpose of calculating value added tax, and the funds are not considered received as a gift. That is, the negative consequences after providing a loan without interest are minimal.