Safe interest on the loan agreement. What should be a secure loan agreement between legal entities

An interest-bearing loan between legal entities is an agreement according to which the lender (creditor) transfers to the borrower a certain amount of funds or other valuables on the terms that the debtor will return them (the amount, values) in accordance with the signed agreement.

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Such transactions are supported by relevant documents. The loan agreement has a lot of nuances, and to avoid typical mistakes, it is better to draw it up with a lawyer. Often transactions are concluded with additional conditions, for example, with the involvement of collateral or the guarantee of the founders or director.

Lending terms

Most often, loans between legal entities are possible in the following situations:

• lending to a subsidiary;
• granting a loan to one of the enterprises included in the holding;
• issuance of a loan for the release of products and further settlement of these goods.

Absolutely all credit conditions (interest rate, period, size, scheme for granting and repaying a loan) are negotiated on an individual basis.

When concluding a transaction, it is necessary to sign a loan agreement. The form of a standard contract is free, but there are a lot of nuances that an experienced lawyer can better handle.

For example, if money or valuables are transferred at a certain percentage, this must be specified in the document, otherwise, the lender has the right to demand payment of interest, the amount of which will be equal to the refinancing rate for the current date. The tax authorities may also have questions.

Decor

The registration procedure will not take much time if all clauses of the contract are agreed upon and options are found that satisfy both parties.

To obtain a loan, legal entities sign a loan agreement (repayment schedule, additional agreements, receipts, etc.) and only after that the loan amount is transferred to the borrower's current bank account or issued in cash.

Profitable offer

Interest-bearing loans between legal entities are a popular service. They provide such loans to partner companies, subsidiaries, and less often to unrelated business entities.

Loan terms are negotiated individually and depend on many factors:

Interest rate loan agreement between legal entities

It is mandatory for legal entities to draw up an agreement in writing. It is not necessary to notarize the document. At the discretion of the parties, a receipt for the transfer of the agreed amount of funds may be drawn up.

Please note that the loan is considered to be reimbursable by default, unless otherwise specified in the transaction.

A transaction is considered interest-bearing if it does not indicate that it is interest-free. If the rate is not signed, the borrower will still pay interest at the refinancing rate.

All clauses of the agreement are prepared for the specific requirements of both parties, if there is disagreement, a protocol of disagreements is prescribed.

Tax implications

All transactions under an interest-bearing loan agreement on the part of the client (borrower) are not taxed.

For the lender, everything is not so simple, it is necessary to correctly draw up documents. To minimize the claims of the tax authorities, the rate should be written in the document.

postings

Any legal entity may provide or receive interest-bearing loans (unless otherwise provided by the Charter or legislation). The crediting period of such loans can be different: short, medium and long-term.

If the loan is obtained for a short period, that is, up to one year, then accounting must be kept on account 66. Money can be withdrawn in cash or by transfer to an account.

Accounting entries should be made as follows:

• Dt 50 (51.52) - Kt 66 - obtaining a loan.

Redemption, reverse posting:

• Dt 66 - Kt 50 (51.52) - return of debt.

Additional costs associated with receiving money are charged to account 91 (Dt91 - Kt 66).

If the loan is granted for a long period, the account is kept on account 67.

at the refinancing rate

The fee for using the loan is determined on an individual basis and is prescribed in the contract. If the document does not specify rates (there is no specific percentage and it is not stated that the loan is interest-free), then the loan fee is determined automatically and is equal to the refinancing rate on the day the borrower pays the amount of the debt.

Please note that in 2020 the refinancing rate is 10.5% per annum.

Interest rates

The fee for using the loan is set at the discretion of the parties. There are no legal restrictions on this item.

But it is worth remembering that the rate must be indicated in the contract, otherwise interest must be charged at the refinancing rate.

If a loan between legal entities is interest-free, this must be specified in the contract. If you do not indicate in the documents that the loan is interest-free, the accrual will be made at the refinancing rate.

Documentation

In order to receive money, both parties to the transaction sign a loan agreement, as well as, if such documents are required: a protocol of disagreements, additional agreements, a payment schedule.

When receiving funds in cash, the borrower writes a receipt for the receipt of funds. Such transactions do not require notarization.

To conclude this agreement, you need:

• the articles of association of both companies;
• passports of persons authorized to sign such documents;
• orders on the appointment of persons having the right to sign on financial documents;

• cards with sample signatures of persons authorized to sign financial documents.

Requirements for recipients

Requirements for the recipient are determined individually. Standard lending conditions - the solvency of the borrower. At the legislative level, there are no prohibitions on obtaining a loan by one legal entity from another.

Also, the Articles of Association of the enterprise should not contain prohibitions on such actions. The borrower must use the money received for the purposes specified in the loan agreement.

Debt repayment

Interest-bearing loan repayment is made, according to the previously signed agreement, one-time or in installments. If the transaction stipulates a one-time repayment, then the contract provides for the final date for the return of funds.

If the loan is repaid in installments, then an additional document is signed with a detailed repayment schedule. It indicates the minimum payments (the body of the loan and accrued interest), the timing of the transfer of money.

The borrower will be able to repay the loan in the ways that are prescribed in the contract, for example:

• through the lender's cash desk in cash;
• bank transfer to a current account;
• money transfer to the borrower's account.

Timing

The parties themselves decide for how long the loan is granted. The legislation does not limit the period of lending; between legal entities, a loan can be issued for a period of 1 day to 50 years.

At the end of the contract, the borrower is obliged to repay the loan and accrued interest on it.

The procedure for accounting for interest on loans and credits is an issue that worries almost every organization. Let us consider the current accounting procedure, including the features of accounting for interest on controlled transactions. On the basis of sub. 10 p. 1 art.

8 art. 272 of the Tax Code of the Russian Federation, regardless of the date of payment, interest is recognized as part of non-operating expenses:

• on the date of repayment of the credit (loan);
• on the last day of each month during the entire term of the loan.

When applying the simplified taxation system (STS), interest is recognized as an expense on the date of payment (sub.

251, paragraph 12 of Art. 270, sub. 1 p. 1.1 art. 346.15 of the Tax Code of the Russian Federation, operations for obtaining and repaying loans are not included in income and expenses. When calculating the tax base for income tax, an organization has the right to take into account expenses in the form of interest on a loan. According to sub. 2 p. 1 art. 265, paragraph 1, paragraph 2, Art. 346.17 of the Tax Code of the Russian Federation). Features of accounting for interest on debt obligations are established by the provisions of Article 269 of the Tax Code of the Russian Federation. Debt obligations are understood as loans, commodity and commercial loans, loans, bank deposits, bank accounts or other borrowings, regardless of the method of their registration. As a general rule, for debt obligations of any type, interest is recognized as an expense, calculated on the basis of the actual rate - for tax purposes, interest is not subject to rationing.

At the same time, the specified provisions of Article 269 of the Tax Code of the Russian Federation apply to interest accrued from January 1, 2015.

under agreements concluded both before January 1, 2015, and after this date (see, for example, letter of the Ministry of Finance of Russia dated July 15, 2015 N 03-01-18 / 40737).

The situation is different with controlled transactions - interest calculated on the basis of the actual rate, taking into account the provisions of Section V.1 of the Tax Code of the Russian Federation, is recognized as an expense. For controlled transactions, the organization recognizes as an expense the interest on the loan calculated on the basis of the actual rate, if this rate is less than the maximum value of the limit value range (paragraphs 1.1, 1.2 of Article 269 of the Tax Code of the Russian Federation). These values, in particular, are: Thus, the interest rate on a controlled transaction should not exceed 12.5%.

Leading Legal Counsel of the Department of Tax Advisory and Tax Dispute Resolution KSK Group

Loan interest and income tax 2019

How an organization should account for interest on loans as an expense when calculating income tax after From 2019 to 2019, the rationing of expenses in the form of interest on debt obligations for tax purposes has been abolished.

The client wants to take a microloan in the amount of 20,000 rubles. Interest on a loan accepted for taxation in 2019 is taken into account in expenses based on the actual rate. The same rule applies to income. Income tax is one of the main ones in the system of taxes and fees of the Russian Federation. The circle of its payers is wide enough, but only organizations are included in it. This tax does not apply to individual entrepreneurs. Corporate income tax 2019 - how much and what benefits The base (general) income tax rate is set at 20% (p. In this regard, the interest payable to the lender on the loan accrued after reducing the amount of the principal debt is recalculated down (based on from the reduced amount of the principal debt).

In these periods, they were taken into account by the organization on a monthly basis in accordance with the requirements of the Tax Code of the Russian Federation. With the accrual method, interest on debt obligations, the validity of which falls on more than one reporting period, is recognized as an expense on a monthly basis and regardless of the fact of payment (clause 8, article 272 of the Tax Code of the Russian Federation). Interest on debt recognized as controlled debt is accounted for in accordance with special rules.

At the same time, since 2019, the list of cases when the debt is recognized as controlled has expanded.

As well as in relation to controlled debt in accordance with paragraph.

n. 2 - 6 Art. 269 ​​of the Tax Code of the Russian Federation (taking into account the norms of p.

n. 7 - 13 Art. 269 ​​of the Tax Code of the Russian Federation). From January 1, 2019, Federal Law No. 25-FZ of February 15, 2019, amended Art.

269 ​​of the Tax Code of the Russian Federation and expanded the list of situations when the debt is recognized as controlled (para.

2 tbsp. 269 ​​of the Tax Code of the Russian Federation). Today, first of all, it is worth paying attention to the provisions of Art.

An exception is loans and credits recognized as controlled transactions, such interest can be included in expenses subject to the relevant provision of the Tax Code (section V.1).

Based on the refinancing rate of the Bank of Russia.

The chosen method of accounting for interest on debt obligations should have been reflected in the accounting policy. At the same time, as the Ministry of Finance of Russia explained in the Letter dated May 5, 2010, the Organization has the right to take into account expenses in the form of interest on the loan when calculating the tax base for income tax. According to sub. 2 p. 1 art. 265, paragraph 8 of Art. 272 of the Tax Code of the Russian Federation, regardless of the date of payment, are recognized as non-operating expenses: on the date of repayment of the loan (loan); on the last day of each month during the entire term of the loan.

At what percentage is it safe to issue loans to legal entities in 2019

With an interest-free loan Each specific founder can provide his company with an interest-free loan, but such an event has a list of characteristic nuances.

The agreement may also include various additional conditions relating to the security and objectives of the loan, the procedure for early repayment or extension of the term, and others. Date of recognition of interest in accounting If an organization applies DOS, then interest on loans in non-operating expenses is recognized as follows:

• In accordance with the date of repayment of the loan or loan taken;
• On the last day of the month, every month the entire period of use of the loan.

For organizations applying the simplified tax system, the procedure is different. Interest is recognized as an expense on the date it is paid.

Interest of the company that provided the loan The company that provided the loan or credit must account for interest in non-operating income. If the company applies DOS, then interest is recognized in the manner and amount provided for accounting.

As for the "simplified", they take into account the interest upon receipt of funds on them and in the amount paid by the borrower. Money received on credit or as a loan cannot be taken into account as expenses and income. However, the interest that is paid on the loan taken can be included in non-operating expenses.

At the same time, the taxpayer must understand how to correctly calculate the amount taken into account for interest and on what date this should be done. In the article, we will consider in detail the accounting and tax accounting of interest on loans and borrowings in 2019. If it goes beyond these indicators, then the rationing method should be applied, section V.1 of the Tax Code of the Russian Federation (See also the article ⇒ Controlled transactions).

Minimum interest rate under the loan agreement

Here's what these ruble loan rates look like:

1. after January 1, 2019 - from 75 to 125% of the key rate of the Central Bank of the Russian Federation.
2. for the period from January 1 to December 31, 2015 - from 0 to 180% of the key rate of the Central Bank of the Russian Federation;

For loans in foreign currency, the rates are determined based on the rates EURIBOR, SHIBOR, LIBOR on the terms specified in subpara. 2-6 p. 1.2 Art. 269 ​​of the Tax Code of the Russian Federation. under the contract, the borrower is transferred not money, but other things defined by generic characteristics.

"Civil Code of the Russian Federation (Part Two)"

dated 01/26/1996 N 14-FZ (as amended on 04/06/2015, as amended on 04/07/2015) The right of the lender to receive interest from the borrower on the loan amount is established by clause

1 st. 809 of the Civil Code of the Russian Federation. This rule is dispositive, so the parties can agree on the amount of the fee for using the loan not only as a percentage of the loan amount (or part of it), but also in a fixed amount. It is better to issue an interest-free loan to the founder. there will be no income or expenses for the parties.

Provided that the individual trusts the office by 120%.)) in accordance with the agreement, deposit money into the cash desk of the office, draw up a receipt.

spend money in accounting on account 66 (but I'm not a specialist in accounting) I'm still interested in interest. Can I specify, for example, 9% as a refinancing rate and a penalty of 0.01% of the amount owed.

Discussion of the specific terms of the transaction should take place through negotiations until the conclusion of the contract. The absence of an agreement on interest in the text of the agreement does not automatically make it interest-free, as expressly stated in Article 809 of the Civil Code of the Russian Federation. Disciplinary action 2019 HR administration 2019 Changes for lawyers 2019 ©2009-2019 Financial Management Center.

Publication of materials is permitted with the obligatory indication of a link to the site.

Contacts Legislation indicates that the lender does not undertake to transfer funds, but transfers them.

Validity period of the document The validity period of the agreement is one of its most important conditions, because after this time, the borrower must return the loan in full, which he received when signing the agreement. There are cases when the period of the agreement was not specified at the conclusion of the contract.

How to draw up a loan agreement between legal entities

An agreement between legal entities is made in writing. The contract specifies the essential conditions - without them, the court recognizes the agreement as invalid. In order not to risk, you should draw up an agreement in a notary's office - the notary will make sure that the document is legally literate.

You can borrow not only money, but also goods, raw materials, property. In this case, the parties draw up a list of property and describe in detail its name, quantity and features. The borrower returns exactly the same as borrowed. It is impossible to pay money instead of property - the tax authorities will consider such a sale and purchase transaction and oblige the creditor to pay income tax.

The heads of the companies indicate in the agreement the following essential conditions:

• names, legal addresses and details of organizations;
• what exactly the lender lends to the borrower and in what amount;
• when the borrower pays off the lender and how.

Whether it is necessary to accrue interest to the lender on a monthly basis - the parties decide for themselves. You can pay off the debt monthly, quarterly, in one transfer at the end of the contract term. The borrower transfers cash to the lender, transfers money to a current account or sends it to bank details.

What is important to know about a loan agreement between legal entities

The company has the right to issue no more than four loans during the year. To lend for the fifth time, you need to issue a license for credit activities. If this is not done, the company's management falls under criminal liability under article 172 of the Criminal Code.

You can give out no more than 100,000 rubles in cash. Larger loans must be posted to a current account or sent to bank details. If an entrepreneur wants to borrow 200,000 rubles in cash and draws up two contracts of 100,000 rubles each, he risks paying a fine. The amount of the fine for legal entities is up to 50,000 rubles.

Loans over 600,000 are registered by the parties with the Federal Financial Monitoring Service. To do this, you need to go to the service website and fill out the form. If a company hides a large loan, it pays a fine. The legal entity is fined 200,000 rubles, the general director - 20,000 rubles.

The money that an entrepreneur receives under a loan agreement between legal entities can only be spent on business. For example, an entrepreneur can repay the company's debt to the state, but not his own loan. If a business owner or CEO spends borrowed money on himself, he risks fines and penalties or criminal liability.

Loan and interest

Clause 1 of Article 807 of the Civil Code of the Russian Federation establishes that when concluding a loan agreement, the lender must transfer money or things to the borrower, which he must subsequently return in full. Thus, it follows from the provisions of this paragraph that the legally significant conditions of a loan transaction are questions about the subject of the loan (money or things) and the need to return the property borrowed.

At the same time, paragraph 1 of Article 807 of the Civil Code of the Russian Federation does not mention the need to pay compensation to the lender for the use of his property, that is, the payment of interest under the loan agreement. Consequently, a loan transaction, in accordance with the requirements of Article 432 of the Civil Code of the Russian Federation, will be considered concluded, even if the issue of interest is not settled by the parties in the text of the agreement.

This conclusion is directly confirmed by the provision of paragraph 1 of Article 809 of the Civil Code of the Russian Federation, which determines that there may be no indication of the need to pay interest in the text of the agreement.

However, the practice of relations between economic entities gives key importance to the issues of determining the amount of interest under a loan agreement and their payment, since the main goal of a commercial organization is to make a profit. Consequently, all the subtleties of determining the amount and procedure for paying interest should be carefully reflected in the text of the agreement between legal entities.

Interest for using a loan under article 809 of the Civil Code of the Russian Federation

Paragraph 1 of Article 809 of the Civil Code of the Russian Federation indicates that the lender, having transferred the money to the borrower, acquires the right to receive interest for the use of them, unless otherwise specified in the agreement of the parties. Thus, a cash loan for an organization is assumed to be paid in all cases where the text of the agreement does not expressly state that it is interest-free.

The absence of an agreement on interest in the text of the agreement does not automatically make it interest-free, as expressly stated in Article 809 of the Civil Code of the Russian Federation. In this situation, the procedure for determining them, indicated in paragraphs 1 and 2 of Article 809 of the Civil Code of the Russian Federation, will only apply. According to the provisions of these paragraphs, the borrower will need to pay interest every month of using the lender's funds in the amount determined on the basis of the refinancing rate of the Central Bank of the Russian Federation at the time the payment or part of it is transferred.

However, it is worth mentioning a special case when the subject of the loan is not money, but things. In such a situation, in accordance with paragraph 3 of Article 809 of the Civil Code of the Russian Federation, in the absence of an agreement between the parties on the issue of interest, the contract is automatically assumed to be interest-free.

Interest on early repayment of a loan

Articles 809 and 810 of the Civil Code of the Russian Federation closely associate with the interest under the contract another key (but legally insignificant) condition of the agreement - the maturity of the debt. According to paragraph 1 of Article 810 of the Civil Code, a loan can be urgent (with a fixed repayment date) or unlimited (in this case, the lender should notify the borrower of the debt repayment date 1 month in advance or at another time specified in the agreement).

It is important to remember that depending on the need to pay interest, the possibility of repaying the loan ahead of schedule will be determined. So, according to article 810 of the Civil Code of the Russian Federation, if the loan is interest-free, then the borrower has the right to return it ahead of schedule at will.

At the same time, if a transaction between organizations involves the payment of interest, early repayment of the debt is possible only with the approval of the lender. Such a limitation is determined by the observance of his financial interests, since in case of early repayment of the loan, he will receive a smaller amount of compensation for the use of his money than he expected at the conclusion of the transaction.

Clause 4 of Article 809 of the Civil Code of the Russian Federation states that in case of early repayment of a loan, the borrower is required to pay interest up to and including the date of actual repayment of the loan. Thus, the possibility of early repayment of an interest-bearing loan will be determined solely by the financial interest of the lender, who has the right to give permission for early repayment, thereby not receiving part of the expected income, or not to give such permission in order to receive the entire amount of interest under the agreement.

Maximum interest rate, minimum interest rate, change (decrease or increase) in the loan fee

When drawing up a loan agreement for an organization, it must be remembered that the norms of the Civil Code of the Russian Federation do not determine the maximum amount of interest for the use of the lender's funds. This position is also confirmed by the provisions of Article 12.1 of the Law “On Microfinance Activities…” dated July 2, 2010 No. 151-FZ, which determine that restrictions on the multiplicity of interest in relation to the principal amount of the loan (on the maximum interest rate) exist only in relation to citizens borrowers and do not apply to organizations.

For reference: a position has developed in judicial practice, the purpose of which is to create conditions for establishing fair and non-destructive interest on credit and loan transactions. As an example, we can cite the ruling of the collegium of the Supreme Court of the Russian Federation dated March 29, 2016 in case No. 83-KG 16-2, which states that a loan transaction, despite the principle of freedom of contract provided for in paragraph 1 of Article 421 of the Civil Code of the Russian Federation, should not be clearly burdensome for the borrower. However, this position does not directly affect the rights and obligations of borrowers-organizations when obtaining a loan from legal entities, and therefore can only serve as a guideline, and not an imperative prescription.

It should also be noted that the information on the maximum interest rate published by the Central Bank of the Russian Federation on a quarterly basis is also not directly related to organizations due to the operation of Part 11 of Article 6 of the Law “On Consumer ...” dated December 21, 2013 No. 353-FZ, since it is intended only for consumer lending.

As for the minimum interest under the loan agreement, there is no such restriction in the legislation. Moreover, paragraph 1 of Article 809 of the Civil Code of the Russian Federation suggests that a loan can be interest-free, that is, free for the borrower.

Change in percentage

According to paragraph 1 of Article 450 of the Civil Code of the Russian Federation, the parties to a loan transaction have the right to change the amount of interest on it at any time during the validity of the contract if they have mutual consent. A unilateral change by the lender of interest is expressly prohibited by both Article 450 of the Civil Code of the Russian Federation and subparagraph 4 of paragraph 1 of Article 12 of the Federal Law No. 151 already mentioned by us (for clients of microfinance organizations).

When making changes, including reducing the amount of interest, the parties should remember that they will enter into force only from the moment of signing an agreement on this (paragraph 3 of Article 453 of the Civil Code of the Russian Federation). However, if desired, the parties in the text of the document may indicate a different procedure for the entry into force of the innovations they have adopted.

In this case, we can also talk about giving the agreement retroactive effect, that is, extending the effect of the changes to the period preceding their approval by the parties. Otherwise, in accordance with paragraph 4 of Article 453 of the Civil Code of the Russian Federation, all interest already paid at the previously concluded rate will remain valid. For example, the borrower is not entitled to demand the recalculation of previously made interest payments if the adopted changes will reduce the interest rate.

Untimely repayment of a loan and late payment of interest - consequences under Article 811 of the Civil Code of the Russian Federation

In practice, situations are not uncommon when the borrower does not pay off both the principal loan and the amount of interest accrued for its use in a timely manner. In case of untimely repayment of the debt, 2 options are possible, depending on whether the parties provide for special sanctions for delay in the agreement or not:

1. If the procedure and amount of the penalty, in accordance with paragraph 4 of Article 395 of the Civil Code of the Russian Federation, are determined by agreement of the parties, the rules specified in the agreement apply.
2. If the parties do not determine special sanctions for overdue debt, the provisions of Articles 395 and 811 of the Civil Code of the Russian Federation shall apply.

According to paragraph 1 of Article 811, in case of non-repayment of the loan, the borrower must pay the so-called default interest, accrued from the day when he had to fulfill the obligation until the moment of actual settlement.

It is important to remember that penalty interest is charged only on the principal amount of the loan, in accordance with paragraph 5 of Article 395 of the Civil Code of the Russian Federation. Exactly the same position is reflected in paragraph 15 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 08.10.1998 No. 14. At the same time, their accrual on the amount of interest payable is possible only if the parties directly indicate such a possibility in their agreement, realizing the consequences of this step. In the absence of an indication of the amount of penalty interest payable, the rules of paragraph 1 of Article 395 of the Civil Code of the Russian Federation are applied, according to which the penalty is charged based on the key rate of the Central Bank of the Russian Federation.

Interest income tax

When making loan transactions, the borrower does not need to pay VAT and income tax. These provisions are enshrined in paragraph 12 of Article 270 of the Civil Code of the Russian Federation. Similar rules apply to the lender when returning money or things borrowed to him. However, for the use of borrowed funds (things), a completely different procedure is applied in relation to interest - both penalty and ordinary.

Regarding VAT on interest received in relation to loan transactions, the rules of subparagraph 15 of paragraph 3 of Article 149 of the Tax Code of the Russian Federation are applied, according to which such operations are exempt from this tax. Income tax on the interest received will have to be paid, in accordance with paragraph 6 of Article 250 of the Tax Code of the Russian Federation. Interest earned in this case is treated as non-operating income.

As for the procedure for calculating tax, one should be guided by the provisions of paragraph 2 of Article 273 of the Tax Code of the Russian Federation (under the cash method of accounting), according to which the moment of receipt of income is the day when interest is received by the lender's cash desk. This rule is used both for the simultaneous payment of the entire amount of interest, and for making payments in installments.

Summing up, we note that the procedure for paying interest by the borrower under a loan agreement is not an essential condition of the transaction, but is of great importance, since the legal nature of an agreement of this kind implies its compensation. That is why the parties should be especially careful when agreeing on interest clauses during the conclusion of a loan agreement.

Yu.V. Kapanina, certified tax consultant

Credits and loans: "profitable" interest accounting

How to take into account income and expenses when issuing / receiving loans

Companies do not always have enough own funds to conduct activities. Sometimes you have to borrow money from a bank, a founder or another company. And how, in this case, to take into account the debt obligations incurred by both parties to the transaction when calculating income tax, you will learn from our article (we will consider accounting for companies using OSNO).

Debt obligations are understood as loans, including commodity and commercial, loans or other borrowings, regardless of the method of their execution (for example, bills, bonds) paragraph 1 of Art. 269 ​​of the Tax Code of the Russian Federation. In what follows, we will refer to all types of debt obligations as loans.

How to account for "profitable" income and expenses

For loans issued or received, income and expenses will not be the loan amount itself, but the interest due to the lender sub. 10 p. 1 art. 251, paragraph 12 of Art. 270, paragraph 1 of Art. 269 ​​of the Tax Code of the Russian Federation.

At the lender. Interest received is included in non-operating income subject to income tax. paragraph 6 of Art. 250 Tax Code of the Russian Federation. If the term of the loan agreement falls on more than one reporting (tax) period, then income in the form of interest is taken into account on the last day of each month, regardless of the date or terms of their payment provided for by the agreement, as well as on the date of termination of such an agreement (loan repayment and ) paragraph 6 of Art. 271, par. 3 p. 4 art. 328 Tax Code of the Russian Federation.

Until January 1, 2014, in a situation where, under the terms of the agreement, interest was accrued and paid at a time at the end of the loan agreement, the lender had disputes about the moment of inclusion of interest in non-operating income. Judges in such disputes took the side of the taxpayers. They believed that the interest on the loan should be taken into account in income in the period of their receipt, established in the contract. Determination of the Supreme Arbitration Court dated January 15, 2014 No. VAC-19281/13; Decrees of the FAS Central Organ of August 01, 2013 No. A68-8200 / 2012; FAS PO dated November 19, 2013 No. А57-1470/2013.

At the borrower. Similar provisions apply to expenses. Thus, expenses in the form of interest (including interest on loans raised for the acquisition (creation) of fixed assets) are taken into account by the borrower when calculating income tax in non-operating expenses on the last day of each month during which the company used borrowed money, as well as on the maturity date loan a

Determination of the minimum percentage under a loan agreement between commercial organizations, which does not contradict the current legislation.

Question: What is the minimum % possible from the position of the STI under a loan agreement between commercial organizations?

Answer:

The terms of the loan agreement (the amount of interest, terms, repayment procedure) are determined by the parties in the loan agreement and are not limited by law.

Rationale

Does the borrower, when calculating income tax, take into account non-operating income from savings on interest when receiving an interest-free loan

"No no need.

Unpaid interest is not recognized as income of the borrower. The amount of the received interest-free loan is also not taken into account when calculating income tax (and subparagraph 10, paragraph 1, article 251 of the Tax Code). Therefore, when using an interest-free loan, it is not required to increase the tax base by the amount of unpaid interest.

The legitimacy of this approach is confirmed by the regulatory agencies (letters of the Ministry of Finance dated May 11, 2012 No. 03-03-06 / 1/239, dated April 18, 2012 No. 03-03-10 / 38, dated April 2, 2010 No. 03-03-06 / 1 / 224); 08-529A).

Is it necessary to determine income if the borrower and lender are related parties? As a general rule, taxation should take into account any income that could be received in comparable transactions between independent persons (clause 1 of article 105.3 of the Tax Code, letter of the Ministry of Finance dated February 24, 2012 No. 03-01-11 / 1-15). To determine the amount of these incomes, you need to compare the conditions for obtaining interest-bearing and interest-free loans. However, such a comparison does not make sense for the borrower: he cannot receive any income when receiving, using and repaying both interest-bearing and interest-free loans.

How to determine the market price of goods (works, services)

“According to the Civil Code of the Russian Federation, any transaction is considered paid, unless otherwise follows from the legislation or the contract (clause 3, article 423 of the Civil Code of the Russian Federation). The transaction is paid at the price established by the agreement of the parties (clause 1 of article 424 of the Civil Code of the Russian Federation). From the standpoint of civil law, this price is recognized as market. If the contract does not specify the cost of the transaction, it is paid at the price that is usually charged for similar goods (work, services) under comparable circumstances (Clause 3, Article 424 of the Civil Code of the Russian Federation).

What is the market price

What is the market price according to tax law

In tax law, the determination of the market price depends on whether the transaction is recognized as controlled or not. If the transaction is made between non-interdependent persons, then for the purposes of taxation, the contract price is recognized as the market price (clause 1, article 105.3 and clause 1, article 105.14 of the Tax Code of the Russian Federation). Compliance of the prices used in transactions with the market level is controlled by representatives of the tax service during special audits. While carrying out routine checks, inspectors can also carry out such checks if the calculation of a particular tax requires the use of a market price indicator.

The contract price applied in a controlled transaction is recognized as a market price:

if it corresponds to the level of prices regulated by the state, or is agreed with the Federal Antimonopoly Service of Russia (taking into account the specifics specified in the Tax Code);

if it corresponds to the price determined by an independent appraiser (in transactions where appraisal is mandatory);

if it is established in accordance with the pricing agreement concluded with the Federal Tax Service of Russia;

if it is established in accordance with the special rules for determining prices for taxation purposes, provided for by separate chapters of part 2 of the Tax Code. For example, to calculate income tax, the market price of securities is the price determined in accordance with the Tax Code (letter of the Ministry of Finance of Russia dated August 29, 2012 No. 03-03-06/1/436);

if the transaction is concluded based on the results of exchange trading.

This procedure follows from the provisions of paragraphs, 8-12 of Article 105.3 of the Tax Code.

"Principle of comparison of income

How to determine that the contract price corresponds to the market level

information about prices (limits of price fluctuations) and stock quotes, which are contained in official sources of information of state authorities and local governments (in particular, in the field of pricing regulation and statistics, for example, the Federal Antimonopoly Service of Russia, Rosstat of Russia, etc.);

information about prices (price fluctuation limits) and exchange quotations, which are contained in information sources of foreign states;

information about prices (price fluctuation limits) and stock quotes contained in other published and (or) publicly available publications and information systems;

data of information and price agencies;

information about the organization's own transactions with non-related parties.

If among these sources the organization does not find (finds insufficient) the necessary information, then you can use the data of accounting and statistical reporting of other organizations. This data can be obtained from the following sources:

public Russian and foreign printed publications;

public information systems;

official websites of Russian and foreign organizations.

This procedure is provided for by the provisions of paragraphs and article 105.6 of the Tax Code.

After the organization has selected the data necessary to match the transaction (or, conversely, made sure that they are absent (insufficient)), determine the market price using one of the following methods:

The organization has the right to apply any of these methods (both separately and by combining several methods). At the same time, it should be taken into account that, in addition to transactions for the purchase of goods subject to resale, the comparable market prices method is the most priority. However, the use of this method is possible when the organization has all the necessary information. If such information is not available or insufficient, other methods of determining the market price can be used. To this end, it is necessary to choose exactly the method (those methods) that more objectively characterizes the compliance of the contract price with the market level. In addition, other methods can also be used when determining the market price of a group of similar transactions between related parties.

Under what conditions is it possible to provide a loan between legal entities

"Question: under what conditions it is possible to provide a loan between legal entities. Is it possible to provide an interest-free loan or is it necessary to set a minimum percentage?

Answer: the terms of the loan agreement (the amount of interest, the terms, the procedure for repayment) are determined by the parties in the loan agreement (art. , Civil Code of the Russian Federation) and are not limited by law. A loan agreement between legal entities must be concluded in writing (Article 1 of the Civil Code of the Russian Federation).

Unlike a loan agreement, which is paid (art. Civil Code of the Russian Federation), for a loan agreement, the payment of interest is not a prerequisite. The loan agreement is considered interest-free, unless it expressly provides otherwise, in certain paragraph 3 of Art. 809 of the Civil Code of the Russian Federation cases. Many organizations indicate a small percentage in loan agreements, and some, in order to avoid unnecessary tax problems, indicate a percentage equal to the refinancing rate. For a long time there have been disputes over whether non-operating income arises when one legal entity receives an interest-free loan from another. The use of funds under a loan agreement without charging interest by the lender was erroneously assessed by the tax authorities as a legal relationship for the provision of services. In accordance with paragraph 5 of article 38 of the Tax Code, for tax purposes, a service is recognized as an activity whose results do not have a material expression, are realized and consumed in the course of this activity. Relations under the loan agreement do not have such signs. According to paragraph 1 of Article 807 of the Civil Code of the Russian Federation, under a loan agreement, one party (the lender) provides the property to the other party (the borrower) of money or other things defined by generic characteristics, and the borrower undertakes to return to the lender the same amount of money (loan amount) or an equal amount other things he received of the same kind and quality. Consequently, the borrower after receiving the loan always has an obligation to return the property to the lender.

In connection with the above, in this case there are no grounds for the emergence of non-operating income in the form of material benefits (additional accrued interest on loans up to the level of the refinancing rate). This position is expressed in the Letters of the Ministry of Finance of Russia dated 14.03.2007. No. 03-02-07 / 2-44 , No. 03-03-04 / 1/128 dated 02.20.2006 , Letter of the Federal Tax Service of Russia dated 01.13.2005 No. 02-1-08 / [email protected], Letter of the Federal Tax Service of Russia for Moscow dated 03.11.2004 No. 26-12 / 71407. Arbitration practice on this issue has also developed in favor of taxpayers (given in the rationale).

Meanwhile, the presence of arbitration practice suggests that, despite all the explanations and letters, disagreements with the tax authorities on this issue still exist.

The rationale for this position is given below in the materials of the Lawyer System.

1. Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of 03.08.2004 No. 3009/04

“The use of funds under a loan agreement without charging interest by the lender was erroneously assessed by the court of cassation as a legal relationship for the provision of services.

In accordance with paragraph 5 of Article 38 of the Code, a service for tax purposes is recognized as an activity, the results of which do not have a material expression, are realized and consumed in the course of this activity. Relations under the loan agreement do not have such signs.

As for paragraph 3 of Article 149 of the Code, this paragraph contains a list of transactions that are exempt from taxation on value added tax, and what operations to provide funds on a loan for these purposes, Chapter 21 of the Code "Value Added Tax" refers to as financial service may not be applicable for other tax purposes.

The Court of First Instance rightly pointed out that the funds received by the company under a loan agreement on the terms of the return of the same amount cannot be considered as received free of charge.

Paragraph 2 of Article 248 of the Code provides that for the purposes of taxing the profits of organizations, property (works, services) or property rights are considered received free of charge, if the receipt of this property (works, services) or property rights is not associated with the recipient's obligation to transfer property (property rights ) to the transferor (perform work for the transferor, provide services to the transferor).

According to paragraph 1 of Article 807 of the Civil Code of the Russian Federation, under a loan agreement, one party (the lender) provides the ownership of the other party (the borrower) with money or other things defined by generic characteristics, and the borrower undertakes to return to the lender the same amount of money (loan amount) or an equal amount other things he received of the same kind and quality. Consequently, the borrower after receiving the loan always has an obligation to return the property to the lender.

In this case, the funds received under the loan agreement were subject to return by the company to the lender.

2. Decree of the FAS SZO dated April 16, 2004 No. A56-40256 / 03

3. Decree of the FAS DO dated February 22, 2005 No. F03-A51 / 04-2 / ​​3780

4. Decree of the FAS MO dated 01.04.2005 No. A-A41 / 2142-05 recommendations ".

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One of the effective ways to raise funds for business development is a loan agreement. Between two organizations, such a document is drawn up much faster than a bank loan and has the advantage that, along with money, the subject of the loan can also take on a commodity expression. The borrower can receive from the lender several wagons of cement, fasteners, fuels and lubricants and other goods that he needs for his current activities.

What is a loan agreement between legal entities

A similar form of legal relations between enterprises provides for an agreement under which one of the parties transfers, and the other takes ownership of money or goods. The loan agreement between legal entities additionally implies that:

• After the expiration of the established period, the borrowing organization must return the same amount of financial resources or valuables (the same amount of bricks, concrete blocks, etc.).
• Such a service may be paid in the form of a percentage. It is charged in the same units (that is, money or a specific product) as the loan.

Conditions of imprisonment

Legal requirements for processing a loan between two organizations have their own characteristics, which must be taken into account when drawing up official documents. It is not required to certify the agreement in a notary's office, but this can be done at the request of one of the parties. The legislation refers to the mandatory written form of the contract. If it is not executed, and the money (or commodity values) is transferred to the borrower, the tax authorities will consider this unjustified enrichment. A well-written document should:

• Include details of the parties.
• Comply with legal norms and requirements, be a multifunctional document that provides for all the features of the transaction.
• In order to avoid disputes, directly contain an indication of the compensation of the transaction - is it necessary or not to pay in the form of interest for the service provided.

The moment of entry into force of the treaty

The issuance and receipt of loans between legal entities has an important feature that distinguishes it from bank loans. The agreement comes into force only at the moment of delivery of money or goods from the lender to the borrower and is valid for the specified period. Such a document can be sealed in advance with the signatures of the parties. If for some reason the creditor does not transfer money or valuables, then the agreement is considered not to have entered into force.

Legal regulation

Legislative norms of contractual relations between legal entities when obtaining a loan are set out in Chapter 42 of the Civil Code of the Russian Federation (CC RF). Articles 807-813 address issues such as:

• the form of the loan agreement;
• obligations of the borrower;
• calculation of interest;
• challenging baseline conditions;
• consequences of default.

How to draw up a loan agreement between legal entities

In accordance with the law, there are special requirements for documenting such a transaction. The agreement must be made in writing. The content of this document is subject to special requirements, in the absence of at least one of the specified points, it may be invalidated:

• Amount of credit (given in numbers and words).
• The term for the return of funds received (if this item is omitted, then by default the loan must be returned after 30 days).
• Interest rate for use (it can be zero for a gratuitous loan).
• The order of repayment (partially or completely, is it possible to pay off ahead of schedule).
• Special conditions for issuance (availability of collateral, guarantors, etc.).
• Responsibility of the borrower (for example, the amount of the penalty).
• Details of the parties to the agreement.
• Date (in this case, the agreement enters into force from the moment the funds are transferred).
• Signatures of directors of both companies.

Subject of the contract

In accordance with applicable law, Several types of contracts between legal entities are possible. The most common are:

• Cash loan. With this service, one organization transfers to another for temporary use a predetermined amount of money. As a rule, this service implies payment - remuneration to the lender in the form of interest on the amount disbursed, which must be specified in the document. But a situation is also possible when an interest-free loan agreement is concluded between legal entities. This option of registration of the transaction, along with visible financial benefits, also brings special registration of tax payments and increased attention of regulatory authorities.
• Commodity loan. This type of loan implies that one person receives from another not cash, but material objects and also makes mutual settlements in them (for example, a construction organization receives 10,000 concrete blocks from a partner, and after 2 months, by agreement, returns to him 10,100 units of the same products).
• Loan in tranches. A feature of this type of loan is that the amount determined by the agreement is not issued at a time, but in parts as needed, and the borrower saves on paying interest. In fact, this service is identical to several issued loans, but it implies a simpler design, because the agreement is concluded here only once.

Rights and obligations of the parties

A careful study of the relevant articles of the Civil Code of the Russian Federation before a loan agreement between legal entities is signed will save the lender and the defendant from unpleasant surprises. One of the most common mistakes is the opinion that if the lending rate is not documented, then the loan received is interest-free.

The law is completely wrong. Article 809 of the Civil Code of the Russian Federation says that if the agreement does not contain an indication of the actual amount of interest, then they are equal to the refinancing rate of the Central Bank of Russia at the time of payment of the debt. Payment for a loan service in this amount (for example, for April 2018, the indicated value is 7.25%) will not always be convenient for the borrower. It would be much better for him to specify in the agreement the rate in advance, or clearly indicate that the loan is interest-free.

Responsibility of the parties

A loan agreement concluded between legal entities must necessarily include a description of the sanctions that apply to the borrower in case of violation of the debt repayment terms. Depending on the terms of the transaction, the amount may be returned:

• entirely;
• in parts;
• with an initial payment of interest every month or quarter.

The amount of the fine depends on the amount of delay. It is beneficial for the borrower that the penalty calculation is carried out not for the entire loan amount, but only for the unpaid/delayed part. The specifics of such lending is that the conditions here are not as harsh as with bank lending, and often penalties are not appliedif the delay:

• has a short period (several days);
• is of a one-time nature;
• due to a good reason, and the creditor has no claims.

Force majeure and dispute resolution

Many borrowers believe that such a clause is necessary for the contract, because it once again protects their rights in the event of force majeure circumstances (natural disasters, social disturbances, etc.). But the usual reference to Article 401 of the Civil Code of the Russian Federation, which deals with force majeure circumstances and the responsibility of the parties to the transaction, will suffice. Wherein:

• If there are extraordinary and unavoidable circumstances that interfere with the performance of obligations, the party that has not fulfilled the obligation is considered innocent.
• The specified article of the Civil Code of the Russian Federation specifically emphasizes that the lack of money from the debtor cannot be qualified as a force majeure circumstance.
• The agreement may provide for the borrower's guilt in all cases of violations in the payment of debt (without any mitigating circumstances), but such a provision can be easily challenged in arbitration.

Termination of the contract

As a general rule, the obligations of the borrower are considered fulfilled at the time of the final payment of the debt (including if this is done ahead of schedule). In this state of affairs, the agreement terminates, but in some cases it can be terminated even before the loan is repaid. Such situations include violation of the terms of loan repayment, for example:

• delay in the terms of monthly contributions according to the schedule;
• refusal to pay interest;
• change of target conditions, etc.

Classification

According to chapter 42 of the Civil Code of the Russian Federation, loans between legal entities can be divided into several types. The classification takes into account different characteristics (presence/absence of interest, the borrower's freedom to use funds, etc.), so the same agreement can simultaneously belong to several types. The table shows the classification according to legislation:

Interest-free loan agreement between legal entities

The design features of this document are based on Article 809 of the Civil Code of the Russian Federation. In this case, the contract is initially interest-free if:

• things are the subject of the loan;
• the loan amount does not exceed 50 minimum wages (SMIC);
• the receipt of funds is not related to commercial activities.

It will be convenient for the borrower to mention in the agreement the interest-free nature of the service. Otherwise, the creditor has the opportunity to demand payment of interest at the refinancing rate of the Central Bank of the Russian Federation, which is why the debtor should think in advance about maximum security and prepare evidence of the transaction being free of charge. There are no limits on such a service (except that you can transfer amounts not exceeding 100,000 rubles in cash).

If the amount of interest-free lending is equal to or exceeds 600,000 rubles, then, according to the law, such transactions are subject to mandatory state control. This is done in order to prevent the legalization of proceeds from crime, combat corruption and terrorism. One of the parties to the agreement must report the transaction to the Federal Financial Monitoring Service. At the same time, it is important that the constant issuance / receipt of interest-free loans implies careful state control, regardless of the actual amount of lending.

Interest Loan Agreement

In most situations, lending money or merchandise involves a reward. An interest-bearing loan agreement between legal entities implies payment for the services rendered in a predetermined amount (by default, the refinancing rate of the Central Bank of the Russian Federation is used). This implies an increase in the amount of debt by the amount of remuneration. Interest is calculated in the same funds/values ​​as the loan issued (for example, bags of cement or US dollars).

Cash loan between legal entities

This form of contractual relationship involves the issuance of funds for a certain period of time. The most common option is to charge an accrual fee for this service at a predetermined rate, but an interest-free loan is also possible. The amount of interest may not be specified (in this case, according to the law, the borrower may demand payments at the size of the refinancing rate of the Central Bank). In order to avoid misunderstandings, it is better for the parties to clearly state in the agreement the presence / absence of remuneration for the service.

Commodity loan agreement

An important condition for this form of agreement between legal entities is that the means of lending are not money, but material values ​​(construction equipment, spare parts, etc.). It is essential that the goods are transferred to the property of the borrower, and after the agreed period, he must provide the lender with identical objects (that is, the temporary use of the objects is excluded). Depending on the terms of the agreement, the repayment of the debt is carried out in the same amount or in an increased amount (with the addition of interest).

Loan agreement in tranches

In commercial activities, situations are possible when not the entire amount is required, but only a part of it (for example, a store for a weekly order and purchase of goods). In this case, it is unprofitable for the debtor to receive a loan in its entirety, because this will increase the accrual of interest on money that will not be used. The transfer of individual parts of the amount (tranches) will reduce the overpayment.

An option for this service would be to receive several loans as needed, but this is inconvenient due to the fact that each time you need to conclude a new agreement. When lending in tranches, the procedure for signing it is carried out only once, and each new amount is drawn up as an additional agreement. Otherwise, the agreement has the same composition as for other types of loans between individuals.

Features of taxation

The loan agreement between legal entities has nuances in the execution of fiscal payments for each of the parties - these issues are regulated by the Tax Code of the Russian Federation (TC RF). According to article 146 of this document, funds provided in the form of a loan are not subject to taxation with fiscal payments. At the same time, situations are common when employees of the Federal Tax Service (FTS) see a profit (the so-called non-operating income) under an interest-free loan agreement due to unpaid interest, demanding payments from the saved amounts.

In practice, the borrower can oppose this requirement with the wording from Article 41 of the Tax Code of the Russian Federation, which states that income is a material benefit. It is problematic to establish it in case of savings, at an uncertain interest rate, therefore the recipient of the loan is exempt from income tax. In disputable situations, the issue should be challenged in court. Under a paid loan agreement, the amount of interest under the Tax Code of the Russian Federation is considered a payment for the service (it is charged to the expense account when compiling reports) and is also not subject to fiscal payments.

When lending in cash, in accordance with Article 149 of the Tax Code of the Russian Federation, the lender is exempt from value added tax (VAT). If the loan is issued in a commodity/material form, the payment of VAT is obligatory (it must be given in the issued invoice). The receipt by the creditor of interest from the loan issued implies the mandatory inclusion of them in the category of income with the payment of the income tax laid down by law.

Repayment procedure and payment of interest

A properly drawn up loan agreement between legal entities should contain a section that says how the borrower will pay. The most common is the option when the entire amount is paid at a predetermined interval, and accrued interest is added to it. But there may be other schemes, for example, the agreement does not set a strict deadline for the return of funds, and the creditor organization can claim the debt if necessary. As a general rule, the debt in this case must be repaid within 30 days.

The term of the loan agreement

This period is necessarily stipulated in the document regulating the financial relations of the parties, and is very important in the event of economic disputes regarding the return of debts. It should be borne in mind that the term of the contract is not counted from the day it is signed, but from the moment when the lender gives the borrower the required amount or the agreed quantity of goods. The validity period of this document ends with the end of payments on the loan received. The lender should be aware that the period of limitation under such agreements may not exceed 3 years.