Tax risks when granting loans to related parties. Loans and borrowings: "profitable" interest accounting Interest rate on a loan between legal entities

13.02.2021 | Cars

Interest-bearing loan agreements between legal entities are quite common. Many firms choose this method of raising funds, since contacting banking organizations is often less profitable.

This is due to the fact that partner companies are willing to provide loans to each other on attractive terms. You can learn about the features of this type of agreement from this article.

Features:

One of the most common agreements in legal practice is an interest-bearing loan agreement. It can be concluded by everyone - both citizens and legal entities.

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The parties to the agreement transfer funds to each other for a predetermined period and pay off the debt along with accrued interest.

In general, a loan agreement is considered to be an interest rate by default, even if this condition is not spelled out in the document itself.

If the document does not say anything about the procedure for calculating and paying interest, the fee for using borrowed funds will be calculated based on the current refinancing rate.

If there is no procedure for payment of interest in the document, their payments will be made monthly from the date of return of the full loan amount.

Moreover, if the lender, together with the transfer of the loan, performs operations subject to VAT, then in accordance with paragraph 4 of Article 149 of the Tax Code of the Russian Federation, it needs to keep separate records.

For this purpose, to calculate the ratio indicated in paragraph 4, it is necessary to take only interest, and the size of the loan itself should not be taken into account.

The following point is also important: the lender company cannot claim for reimbursement of input VAT on goods, works or services that it uses in activities associated with the provision of a loan.

This amount will be included in the cost of work performed or services provided. This idea is expressed in.

However, if the size of non-taxable transactions does not exceed 5% of the line defined by paragraph 4 of Article 170 of the Tax Code of the Russian Federation, then the lender may not keep separate accounting and is entitled to a full VAT refund ().

If the loan is provided in non-cash form, the amount of accrued interest must be attributed to the taxable base for calculating VAT (clause 2, clause 1).

This obligation appears at the time of the direct transfer of interest. The calculation of the tax itself is carried out at the estimated rate (clause 4).

The lender is obliged to generate an invoice for the receipt of interest and record it in the sales ledger (used in calculating VAT, paragraph 18).

Income tax

If the lender company receives a payment in the form of interest for the provision of a loan, this amount will be included in non-operating income, which means that it will need to pay income tax (the interest rate existing in the region of the company applies).

The lender must include the interest received under the contract in non-operating income, regardless of the form in which the loan is provided (cash or non-cash) - paragraph 6.

With the cash method, interest is accounted for at the time of their direct transfer ().

If the lender uses an accrual basis, interest will be included in non-operating expenses at the end of the reporting period (provided that the agreement is valid for two or more reporting periods).

This is stated in paragraph 6 and paragraph 4 of the Tax Code.

Tax accounting

According to tax officials, interest under a loan agreement (if its validity period covers two or more reporting periods) is accounted for in income evenly at the end of the month of the relevant reporting period, and this does not depend on the timing and actual payment determined by the agreement.

At the same time, some courts consider that income should include only interest for the period of its actual transfer.

Separately, you should consider the specifics of tax accounting of interest on loan agreements denominated in foreign currency:

the loan is provided in foreign currency and interest is paid in rubles. If the lender uses the accrual method, then the change in the exchange rate can cause a positive or negative difference between the accrued and received interest. With an increase in the exchange rate, a positive difference is formed, with a decrease, accordingly, a negative one. Here we will apply the general accounting procedure: a positive difference goes to the composition of non-operating income (Article 250 of the Tax Code of the Russian Federation), a negative difference goes to non-operating expenses ();

If the lender uses the cash method, there will be no difference, since interest will be recorded as income after its direct transfer (Article 273 of the Tax Code of the Russian Federation).

the loan is provided in foreign currency, interest is also paid in foreign currency. The amount of the benefit received in foreign currency is converted into rubles (). Recalculation is carried out at the current rate of the Central Bank or on the last day of the reporting period.

If, as a result of a change in the exchange rate, there are positive or negative differences, they will be accounted for as non-operating income or expenses of the lender.

If the cash basis is used, no difference can arise, since the clearing takes place on the date of direct interest payment.

Sample contract

To draw up an interest-bearing loan agreement between legal entities, a standard loan agreement form is used.

This means that the document will list all the same provisions:

the subject of the agreement (the amount of the loan, the amount of interest and the terms of payment are indicated here);
rights and obligations of the parties;
terms of the contract;
additional conditions, etc.

Among other things, annexes can be drawn up to an interest-bearing loan agreement between organizations:

loan issuance schedule;
loan repayment schedule;
interest payment schedule.

Additional documents usually include:

supplementary agreement;
protocol of disagreements;
dispute reconciliation protocol.

How to avoid mistakes when drawing up an interest rate loan agreement between legal entities

Any errors and inaccuracies in the interest rate loan agreement can lead to the most undesirable consequences, up to and including its invalidation. To prevent this from happening, you must carefully monitor all the information entered.

Check if the loan amount, maturity dates, interest rate for the use of funds (if the rate is not indicated, interest will be charged at the rate of the Central Bank of the Russian Federation), the amount of penalties, etc. are correctly indicated in the agreement.

Carefully review how complete and accurate the specified details of the parties are.
Any changes can be made to the agreement by mutual agreement of the borrower and the lender.

If the parties to the agreement decide to change any material terms, a written additional agreement must be drawn up to the main contract.

An interest-bearing loan agreement between organizations is concluded quite often, just as often mistakes are made when drawing up a document.

To avoid this, you must carefully check all the points of the agreement.

If the qualifications of the company's employees are not high enough, it is advisable to use the services of professionals - this will help to avoid mistakes and, as a result, complex and irreparable consequences.

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All parties should discuss them at the stage of negotiations and only then include them in the agreement. You can download a sample interest-bearing loan agreement between legal entities at this link. What are the rights and obligations of the parties It is in the agreement that the parties fix all the rights and obligations arising for each of them as a result of the conclusion of a loan transaction. Usually, the main responsibilities fall on the borrower, while the lender has only the rights.

The right to receive interest and the right to reduce interest at any time without additional agreements with the borrower Possibility of assignment of rights of claim if the parties did not establish an appropriate prohibition during the negotiations Possibility to control the intended use of funds received by the borrower if the loan has a targeted nature The right to control the safety of the pledged property if it was provided as We will also cite the obligations and rights of the borrower, which are most often found in agreements: Obligation to repay debt and pay interest in accordance with the terms of the agreement The right to early repayment with recalculation of interest if such an opportunity is provided by agreement In some cases, the agreement may provide for other rights and responsibilities of the parties.

Tax accounting of interest on loans and borrowings in 2018. interest calculation

Important! Before determining the rate at which interest can be recognized in tax accounting, you need to be sure that the transaction is not controlled.
After referring a loan or loan transaction to a controlled one, the company must determine the rate at which interest on this transaction will be taken into account.
For this, the actual rate is compared with the indicators given in article 269 of the Tax Code of the Russian Federation.
The specified indicators depend on the transaction currency. If the rate (actual) specified in the contract falls within the specified values, then interest can be taken into account in the full amount calculated at the actual rate.

This is normal. In addition, the law provides that in case of early repayment of a debt, interest accrued on the date of loan repayment is also payable.

Reduction of contractual interest A new norm will be applied to contracts that will be concluded after June 1, 2018 - paragraph 5 of Article 809 of the Civil Code of the Russian Federation.
Attention: the rule outlined below does not apply to earlier contracts.
Now the court will be able to reduce the interest rate established in the loan agreement, drawn up between citizens or between a citizen borrower and a legal entity that does not carry out professional activities in providing consumer loans.

How to issue a loan?

To confirm the validity of the loan agreement, the party does not have to prove the fact of the transfer of funds.

Did the Ministry of Finance allow loans at 0% between related parties?

Today, the Civil Code of the Russian Federation does not specify what to proceed from when setting a rate.

But from June 1, 2018, in Article 809 of the Civil Code of the Russian Federation, clarifications will appear that the amount of interest can be set:

using a rate in percentage per annum as a fixed amount,
using a rate in percentage per annum, the value of which may vary depending on the conditions provided for by the contract, including depending on the change in the variable,
in another way that allows you to determine the appropriate amount of interest at the time of payment.

If, however, the agreement does not determine the amount of interest and at the same time the loan does not fall under the above situations, when the loan is issued at zero interest, then the interest rate will be equal to the key rate of the Bank of Russia.

Interest under the loan agreement

At the same time, for example, for ruble-denominated debt obligations, such an interval ranges from 75 to 180% of the refinancing rate of the Bank of Russia.

For debt obligations in euros - from the European Interbank Offer Rate (EURIBOR) in euros, increased by 4 percentage points, to the EURIBOR rate in euros, increased by 7 percentage points.

Interest is paid monthly on the last day of the month.

Let's show you how to account for interest in Q1. In the 1st quarter of 2018, the organization recognizes expenses in the form of interest twice: 1. February 28 - in the amount of 6,986.30 rubles.
Let's make a reservation right away that we are talking about paying for the use of money, and not about penalties, which serve as a sanction for violation of an obligation. A loan with and without interest The loan agreement will be considered as interest-free in the following cases:

if this is explicitly indicated in the contract or
if you do not write anything about interest in the contract, but at the same time:
- the contract was concluded between citizens for an amount of no more than fifty minimum wages (no more than 5,000 rubles) and is not associated with the implementation of entrepreneurial activities by at least one of the parties; Please note: for contracts that will be concluded after June 1, 2018, the specified threshold will be increased to 100,000 rubles, and the exception for entrepreneurs has been removed;
- under the agreement, not money is transferred to the borrower, but other things determined by generic characteristics.

In all other cases, the loan agreement will be interest-bearing.

Return back to Tax Accounting 2018 Abolished rationing of expenses in the form of interest on debt obligations for tax purposes.

Interest on a loan accepted for taxation in 2018 is recognized in expenses based on the actual rate.

A similar rule applies to income.

An exception. For debt obligations arising from controlled transactions, income (expense) is recognized as interest calculated based on the actual rate, taking into account the provisions of Sec. V.1 of the Tax Code on controlled transactions (this will apply in transactions between related parties). An exception is when a bank is one of the parties to a controlled transaction. In this case, the taxpayer has the right to: 1.

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 to be paid, the rules of paragraph 1 of Article 395 of the Civil Code of the Russian Federation are applied, according to which the penalty is calculated based on the key rate of the Central Bank of the Russian Federation. Interest received tax When registering 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.

Minimum interest under the loan agreement in 2018

Comment. The lower the rate, the more attention is paid to the verification of the borrowing company and the more documents are requested. Let us compare in the table the offers of some organizations for loans for companies: Organization-creditor Features Rate Maximum term, rubles Maximum amount, rubles Loan flow is issued according to the P2P lending scheme through Potok.Didzhetal LLC (affiliated with Alfa Bank) from 20% per annum 6 months 2 million
Sverdlovsk Regional Fund for Entrepreneurship Support (MFO) issue loans with state support 10% per year for all borrowers 3 years 3 million Financial department (IFC) payments must be made weekly calculated individually 1 year 1 million

On registration of an interest-bearing loan between legal entities in 2018

In the event that payments under the loan agreement have ceased, the lender has several options to collect the amount of the debt: Going to court and enforcement through the bailiff service or the debtor's bankruptcy procedure Involvement of professional collectors and lawyers in debt collection Sale of the rights of claims of an organization engaged in debt collection at a professional level Each of the options has its own advantages and disadvantages. For example, going to court may require a lot of time, and the effect of collection will not always be comparable to the expected one, because
the borrower simply may not have the funds and property sufficient to pay off the debt. When attracting collectors and lawyers, the lender will have to spend money on their services and it is not always possible to predict the result either.

What is the minimum rate to indicate in the loan agreement?

Drawing up contracts for temporary work Moscow from 3500 rubles. Good day. The size of the bet can be anything. Freedom of contract allows the parties to the contract to independently make such a decision.

Therefore, if you still want just such an agreement, and the lender is the founder, then it is best to use the refinancing rate, since a large rate can attract the attention of the relevant services. For late payment, you can specify any sanctions, 0.1% is fine.

Interest calculation under a loan agreement in 2018

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

Interest under the loan agreement

It is not easy to get a loan for a business and money is often sought from other companies that have available funds. Affiliates or long-term partners often become lenders, but specialized companies can also act as creditors.

The main provisions of the conclusion A loan is still not a loan, although it has certain similarities with a banking product. Under the contract, one company can borrow money or transfer money or things that have generic characteristics (brand, model) to another.

Agreements can provide for the payment of remuneration to the creditor for the use of funds or be interest-free.

How to take into account the interest on the received loan (credit) in taxation?

Thus, it follows from the provisions of this paragraph that the legally essential terms 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, there is no question of the need to pay compensation to the lender for the use of his property, that is, the payment of interest under the loan agreement, in paragraph 1 of Article 807 of the Civil Code of the Russian Federation.

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 has not been 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.

Minimum interest rate under the loan agreement 2018

Such a limitation is determined by the observance of his financial interests, since with an 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 the loan, the borrower is required to pay interest until the date of the actual repayment of the loan, inclusive.

Thus, the possibility of early repayment of the 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 losing part of the estimated income, or not to give such permission in order to receive the entire amount of interest under the agreement.

On registration of an interest-bearing loan between legal entities in 2018

Any enterprise sometimes needs to raise additional funds. They may be needed to purchase a product, update or purchase funds, or to get out of a difficult situation.

It is not easy to get a loan for a business and money is often sought from other companies that have available funds.

Affiliates or long-term partners often become lenders, but specialized companies can also act as creditors.

The main provisions of the conclusion

A loan is still not a loan, although it has certain similarities with a banking product. Under the contract, one company can borrow money or transfer money or things that have generic characteristics (brand, model) to another.

The contracts may provide for the payment of remuneration to the creditor for the use of funds or be interest-free. Discussion of specific terms of the transaction should take place through negotiations prior to the conclusion of the contract.

Any legal entity can issue loans. There are specialized organizations on the market that are ready to provide financial support to various types of business.

Also, it is not uncommon for loans to be obtained from other firms belonging to the group of companies or from partners with whom there are long-standing relationships.

The remuneration of the lender can be expressed as a percentage accrued for a certain period of the use of funds, or expressed in a specific amount for the entire term of the agreement or a certain period of use of the borrowed property or money.

Necessary terms

The very procedure for issuing and obtaining loans is described in sufficient detail in the legislation and most firms do not experience big problems with the transaction.

But some specific terms do occur:

Requirements for the parties

If the parties to the transaction are two legal entities, then according to the legislation there is only one requirement.

An organization that acts as a borrower or lender must be officially registered, its activities must not be suspended, and no bankruptcy or liquidation procedures are carried out in relation to it.

Important! For some special institutions, the issuance of various loans may be completely prohibited or require additional permission from the founders. This moment is spelled out specifically in the Charter of the organization.

The lender can independently establish almost any requirements for borrowers, guided by its own internal policy.

Consider what conditions the borrower must meet in most cases:

conducting business for at least 3-12 months;
no losses;
the absence of decisions on the suspension of activities against him;
it should not be subject to bankruptcy or liquidation procedures;
absence or minimum debt for various taxes, fees and other mandatory payments to the state.

In some cases, lenders may consider a borrower with debts for tax payments and other fees if he has an agreed installment plan for the payment of the debt with the appropriate government agency.

Legal acts

In general, the parties to a loan transaction between legal entities must be guided, first of all, by the Civil Code of the Russian Federation.

It is it that contains the very concept of a loan, describes the possible types and main conditions that should be stipulated in the contract.

If a microfinance or microcredit organization acts as a lender, then their activities are also subject to the Federal Law “On Microfinance Activities and Microfinance Organizations”.

These organizations should also take into account various letters, decrees and orders of the Central Bank and the Ministry of Finance of the Russian Federation.

Video: loans and borrowings

Interest loan agreement between legal entities (sample)

According to the Civil Code, the parties can agree on all the terms of the transaction through preliminary negotiations.

This is usually the case if the lender is not a professional microfinance business lending company.

The parties must record all the results of the negotiations in a paper agreement, which will further regulate the relationship between them associated with the transaction.

The agreement must include the following information:

Details of the parties.
Subject of the contract (description of things, their value or a specific amount of a cash loan).
The amount of the lender's remuneration (if the contract is interest-bearing).
Return procedure.
Loan term (if the contract is not termless).
Penalties.
Signatures of the parties.

The agreement may also include various additional conditions regarding the security and purposes of the loan, the procedure for early repayment or extension of the term, and others.

All parties should discuss them at the stage of negotiations and only then include them in the agreement.

You can download a sample interest-bearing loan agreement between legal entities at this link.

What are the rights and obligations of the parties

It is in the agreement that the parties fix all the rights and obligations that arise for each of them as a result of the conclusion of a loan transaction. Usually, the main responsibilities fall on the borrower, while the lender has only the rights.

Consider what basic rights a lender can obtain under an agreement:

One legal entity plans to issue a loan to another legal entity at 1% per annum. All parties to the relationship are residents of the Russian Federation and apply the general tax regime. At the same time, subsidiaries are agricultural producers applying the tax rate for corporate income tax of 0% on the basis of clause 1.3 of Art. 284 of the Tax Code of the Russian Federation. Loans are provided in rubles. The parties to the agreements are not taxpayers of mineral extraction tax, are not residents (participants) of a special or free economic zone, as well as participants in regional investment projects. The parties to the loan agreements are not members of the same consolidated group of taxpayers formed in accordance with the Tax Code of the Russian Federation. Can one legal entity issue a loan to another legal entity at 1% per annum if the legal entities are not interdependent entities, and in the case of interdependence of legal entities (one of them is the founder (participant, shareholder) of the other with 100% participation)? What are the tax risks in this case?

Having considered the issue, we came to the following conclusion:
The legislation of the Russian Federation does not provide for delimitation in relation to interest rates under loan agreements between legal entities, including those recognized as interdependent.
In the situation under consideration, if the amount of transactions (income from transactions) of all types between the parent and any of the subsidiaries for a calendar year is exceeded, the sum criterion is 1 billion rubles. and in case of failure to comply with the conditions established by paragraphs. 2 p. 4 art. 105.14 of the Tax Code of the Russian Federation, the loan agreement is recognized as a controlled transaction. In this case, liability is provided for the taxpayer's failure to submit a notification of controlled transactions.
In the course of checking the compliance of prices for controlled transactions with the level of market prices, the lender may be charged additional income tax if he did not independently adjust the income for tax purposes based on the market rate. Upon additional accrual, penalties may be charged.
If loan agreements are not controlled transactions (including agreements with non-dependent persons), the parties are entitled to account for income and expenses on such a transaction based on the interest rate actually determined by the agreement (1%). In this case, we see no tax risks.

Rationale for the conclusion:
Under a loan agreement, one party (lender) transfers to the ownership of the other party (borrower) money or other things defined by generic characteristics, and the borrower undertakes to return the same amount of money (loan amount) to the lender or an equal number of other things of the same kind and quality received by him (Clause 1 of Art. 807 of the Civil Code of the Russian Federation).
Note that the legislation does not limit the circle of persons who can act as lenders and (or) borrowers, regardless of the participation (share) of one legal entity in the authorized capital of another. By virtue of the principle of freedom of contract, which is one of the fundamental principles in civil law (clause 2 of article 1, article 421 of the Civil Code of the Russian Federation), the parties to the loan agreement are not limited in the right to establish any interest rate for the use of borrowed funds received in connection with carrying out entrepreneurial activity by the borrower (clause 1 of article 809 of the Civil Code of the Russian Federation). Certain restrictions on the amount of interest under such an agreement can only be due to the observance of other principles of civil legislation - rationality and fairness, inadmissibility of abuse of the right (clause 2 of article 6, article 10 of the Civil Code of the Russian Federation, clauses 9, 10 of the resolution of the Plenum of the Supreme Arbitration Court RF of 14.03.2014 N 16 "On freedom of contract and its limits").

Interdependence

The concept of interdependence of persons for tax purposes is determined by the provisions of Art. 105.1 of the Tax Code of the Russian Federation. According to the general definition, persons are recognized as interdependent for tax purposes if the specifics of the relationship between them may affect the conditions and (or) the results of transactions made by these persons, and (or) the economic results of the activities of these persons or the activities of the persons they represent (paragraph 1, clause 1 article 105.1 of the Tax Code of the Russian Federation).
To recognize the mutual dependence of persons, the influence that may be exerted due to the participation of one person in the capital of other persons, in accordance with the agreement concluded between them, or if there is another opportunity for one person to determine the decisions made by other persons (paragraph two of clause 1 of article 105.1 Tax Code of the Russian Federation).
Further, the signs of interdependence of persons are concretized in paragraph 2 of Art. 105.1 of the Tax Code of the Russian Federation, but, again, taking into account the provisions of clause 1 of Art. 105.1 of the Tax Code of the Russian Federation. In particular (in relation to the situation under consideration), organizations are recognized as interdependent persons if one organization directly and (or) indirectly participates in another organization and the share of such participation is more than 25% (subparagraph 1 of paragraph 2 of article 105.1 of the Tax Code of the Russian Federation) ... There are also other signs of interdependence for tax purposes (pp. 2-11, clause 2, article 105.1 of the Tax Code of the Russian Federation).
Note, in the presence of the circumstances specified in paragraph 1 of Art. 105.1 of the Tax Code of the Russian Federation, organizations that are parties to the transaction have the right to independently recognize themselves for tax purposes as interdependent persons, regardless of the absence of signs provided for in paragraph 2 of Art. 105.1 of the Tax Code of the Russian Federation (clause 6 of Article 105.1 of the Tax Code of the Russian Federation). In addition, if relations between legal entities (parties to the transaction) have the characteristics specified in clause 1 of Art. 105.1 of the Tax Code of the Russian Federation, the court may recognize these persons as interdependent on other grounds not provided for in paragraph 2 of Art. 105.1 of the Tax Code of the Russian Federation.
So, in the situation under consideration, the organizations (the borrower and the lender) are in any case recognized as interdependent persons, at least on the basis of paragraphs. 1 p. 2 art. 105.1 of the Tax Code of the Russian Federation. In this case, it does not matter who is the borrower and the lender - the parent or subsidiary - the transaction is a transaction between related parties.

Controlled transactions

Loan agreement with an independent person

Income tax

As indicated in paragraph 4 of Art. 105.3 of the Tax Code of the Russian Federation, when exercising tax control on the part of the Federal Tax Service of Russia in the manner prescribed by Chapter 14.5 of the Tax Code of the Russian Federation, the completeness of the calculation and payment of the following taxes is checked:
1) corporate income tax;
2) personal income tax, paid in accordance with Art. 227 of the Tax Code of the Russian Federation;
3) MET;
4) VAT.
In the circumstances under consideration, we believe it is obvious that the issue is relevant in terms of the risks of additional tax on corporate income.
Again, checking the completeness of the calculation and payment of taxes in connection with transactions between related parties (including controlled transactions), as indicated in paragraph 1 of Art. 105.17 of the Tax Code of the Russian Federation, conducted by the Federal Tax Service of Russia. In case of underestimation of the amounts of taxes specified in paragraph 4 of Art. 105.3 of the Tax Code of the Russian Federation (including corporate income tax), or an overstatement of the amount of loss determined in accordance with Chapter 25 of the Tax Code of the Russian Federation, the Federal Tax Service of Russia makes adjustments to the corresponding tax bases.
The peculiarities of accounting for interest on debt obligations for the purpose of taxing the profits of organizations are established by Art. 269 \u200b\u200bof the Tax Code of the Russian Federation. Since 2015, Art. 269 \u200b\u200bof the Tax Code of the Russian Federation is applied taking into account the changes introduced by Federal Law of December 28, 2013 N 420-FZ (hereinafter - Law N 420-FZ), as well as by Federal Law of 03/08/2015 N 32-FZ (hereinafter - Law N 32-FZ) , which applies to legal relations that have arisen since January 1, 2015 (clause 2, article 3 of Law N 32-FZ).
According to general rules, for debt obligations of any kind, both income and expense are interest calculated on the basis of the actual rate, unless otherwise provided by Art. 269 \u200b\u200bof the Tax Code of the Russian Federation (paragraph two, clause 1 of Art.269 of the Tax Code of the Russian Federation).
For debt obligations (of any kind) arising from controlled transactions, income (expense) is recognized as the percentage calculated based on the actual rate, but taking into account the provisions of Section V.1 of the Tax Code of the Russian Federation (Articles 105.1-105.25 of the Tax Code of the Russian Federation), if otherwise not established by other provisions of Art. 269 \u200b\u200bof the Tax Code of the Russian Federation.
Under "other established" norms should be understood, in particular, the provisions of clause 1.1 of Art. 269 \u200b\u200bof the Tax Code of the Russian Federation, according to which for a debt obligation arising as a result of a transaction recognized as controlled, a taxpayer has the right to:
- to recognize as income the interest calculated on the basis of the actual rate on such debt obligations, if this rate exceeds the minimum value of the interval of limit values \u200b\u200bestablished by clause 1.2 of Art. 269 \u200b\u200bof the Tax Code of the Russian Federation;
- to recognize as an expense the interest calculated on the basis of the actual rate on such debt obligations, if this rate is less than the maximum value of the interval of limit values \u200b\u200bestablished by clause 1.2 of Art. 269 \u200b\u200bof the Tax Code of the Russian Federation.
If the above conditions for debt obligations arising from controlled transactions are not met, income (expense) is recognized as the percentage calculated based on the actual rate, but taking into account the provisions of Section V.1 of the Tax Code of the Russian Federation (paragraph four, clause 1.1 of Article 269 of the Tax Code of the Russian Federation).
In the situation under consideration, as we noted above, loan agreements between parent and subsidiary (interdependent) organizations can be recognized as controlled on the basis of paragraphs. 1 p. 2 art. 105.14 of the Tax Code of the Russian Federation. Subparagraph 1 of clause 1.2 of Art. 269 \u200b\u200bof the Tax Code of the Russian Federation set the following intervals for the limit values \u200b\u200bof interest rates on debt obligations issued in rubles and arising from a transaction recognized as controlled on the basis of the norms of paragraph 2 of Art. 105.14 of the Tax Code of the Russian Federation: from 75% to 125% (starting from 01.01.2016) of the key rate of the Central Bank of the Russian Federation.
In respect of debt obligations, for which the rate is fixed and does not change during the entire term of the debt obligation, the key rate of the Central Bank of the Russian Federation (LIBOR rate, EURIBOR rate, SHIBOR rate) means the corresponding rate in effect on the date of raising funds or other property in in the form of a debt obligation (subparagraph 1 of paragraph 1.3 of article 269 of the Tax Code of the Russian Federation).
At the moment, the current key rate according to the Information of the Bank of Russia dated June 10, 2016 is 10.5% (for key rates that are relevant on the day of borrowing (concluding loan agreements), see the reference “Key rate and refinancing rate”).
So, if loan agreements between the parent and subsidiary (interdependent) organizations are recognized as a controlled transaction on the basis of paragraphs. 1 p. 2 art. 105.14 of the Tax Code of the Russian Federation (exceeding the sum criterion of 1 billion rubles and in case of failure to meet the conditions specified in subparagraph 2 of paragraph 4 of article 105.14 of the Tax Code of the Russian Federation), the lender has the right to recognize income for tax purposes calculated on the basis of the actual rate under the contract, if the latter exceeds 7.875%.
In the situation under consideration (the loan is provided at 1% per annum), following paragraph four, clause 1.1 of Art. 269 \u200b\u200bof the Tax Code of the Russian Federation, when recognizing the agreement as a controlled transaction, the parties should refer to the provisions of Section V.1 of the Tax Code of the Russian Federation (see, in particular, Article 105.3, Article 105.18 of the Tax Code of the Russian Federation, etc.).
In conclusion, we note that in accordance with paragraph 6 of Art. 105.3 of the Tax Code of the Russian Federation in the event that a taxpayer applies prices in a transaction between interdependent persons that do not correspond to market prices, if the specified discrepancy resulted in an understatement of amounts, including corporate income tax (advance payments), or an overestimation of the amount of loss determined in accordance with Chapter 25 of the Tax Code of the Russian Federation , the taxpayer has the right to independently adjust the tax base and the amount of tax (losses) after the end of the calendar year (tax period).
At the same time, these adjustments can be made by organizations simultaneously with the submission of a tax return on corporate income tax for the relevant tax period.
The amount of arrears revealed by the taxpayer independently based on the results of the adjustment made in accordance with this clause must be repaid no later than the date of payment of corporate income tax for the relevant tax period. For the period from the date of arising of the arrears to the date of expiry of the established period of its repayment, no penalties for the amount of arrears are charged (letter of the Federal Tax Service of Russia dated 15.02.2016 N ED-4-13 / [email protected]).

We recommend that you familiarize yourself with the following materials:
- Encyclopedia of solutions. Transactions between related parties recognized as controlled;
- Encyclopedia of solutions. Taxpayers who are required to submit notices of controlled transactions;
- Encyclopedia of solutions. Verification of the compliance of prices with market prices for controlled transactions, carried out by the Federal Tax Service of Russia;
- Encyclopedia of solutions. Interest on controlled transactions since 2015 for profit tax purposes.

Prepared by:
Expert of the Legal Consulting Service GARANT
Gilmutdinov Damir

Response quality control:
Reviewer of the Legal Consulting Service GARANT
professional accountant Sergey Rodyushkin

The material was prepared on the basis of an individual written consultation provided as part of the Legal Consulting service.

Interest on loans between related parties and their tax accounting concerns many accountants. In our article we will tell you what the representatives of the financial department and arbitrators think about these issues.

Interest on loans between related parties

Learn about the features of the methods of recognition of income and expenses for tax purposes from our material "Accrual and cash method: the main differences."

Transactions between related parties are considered controlled if they are characterized by the conditions of Art. 105.14 of the Tax Code of the Russian Federation. Since January 1, 2015, the tax legislation considers interest on debt obligations under controlled transactions between overhead lines as income / expense, determined based on the actual rate, but within the rates fixed in clause 1.2 of Art. 269 \u200b\u200bof the Tax Code of the Russian Federation.

This is what these rates for ruble loans look like:

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;
after January 1, 2016 - from 75 to 125% of the key rate of the Central Bank of the Russian Federation.

As a reminder, from 19.09.2016 the key rate is equal to 10.0% per annum.

Interest-free loan between related parties

Find answers to your questions about the application of Art. 251 of the Tax Code of the Russian Federation in our material “Art. 251 of the Tax Code of the Russian Federation (2015): questions and answers ”.

In the opinion of the department, the action of p. 11 p. 1 of Art. 251 of the Tax Code of the Russian Federation (we are talking about the application of income conditions to them, which are not included in the profit base). For interest-free transactions between overhead lines, the income of the lender organization will be the interest that it could receive if the transaction was "interest-bearing". At the same time, a comparison is made with similar transactions between legal entities that are not interdependent.

Dear Readers! The article talks about typical ways of solving legal issues, but each case is individual. If you want to know how to solve your problem - contact a consultant:

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Any enterprise sometimes needs to raise additional funds. They may be needed to purchase a product, update or purchase funds, or to get out of a difficult situation.

It is not easy to get a loan for a business and money is often sought from other companies that have available funds.

Affiliates or long-term partners often become lenders, but specialized companies can also act as creditors.

The main provisions of the conclusion

A loan is still not a loan, although it has certain similarities with a banking product. Under the contract, one company can borrow money or transfer money or things that have generic characteristics (brand, model) to another.

Any legal entity can issue loans. There are specialized organizations on the market that are ready to provide financial support to various types of business.

Also, it is not uncommon for loans to be obtained from other firms belonging to the group of companies or from partners with whom there are long-standing relationships.

Necessary terms

The very procedure for issuing and obtaining loans is described in sufficient detail in the legislation and most firms do not experience big problems with the transaction.

But some specific terms do occur:

Requirements for the parties

If the parties to the transaction are two legal entities, then according to the legislation there is only one requirement.

An organization that acts as a borrower or lender must be officially registered, its activities must not be suspended, and no bankruptcy or liquidation procedures are carried out in relation to it.

The lender can independently establish almost any requirements for borrowers, guided by its own internal policy.

Consider what conditions the borrower must meet in most cases:

conducting business for at least 3-12 months;
no losses;
the absence of decisions on the suspension of activities against him;
it should not be subject to bankruptcy or liquidation procedures;
absence or minimum debt for various taxes, fees and other mandatory payments to the state.

In some cases, lenders may consider a borrower with debts for tax payments and other fees if he has an agreed installment plan for the payment of the debt with the appropriate government agency.

Legal acts

In general, the parties to a loan transaction between legal entities must be guided, first of all,.

It is it that contains the very concept of a loan, describes the possible types and main conditions that should be stipulated in the contract.

If a microfinance or microcredit organization acts as a lender, then their activities are also subject to the Federal Law.

These organizations should also take into account various letters, decrees and orders of the Central Bank and the Ministry of Finance of the Russian Federation.

Video: loans and borrowings

Interest loan agreement between legal entities (sample)

According to the Civil Code, the parties can agree on all the terms of the transaction through preliminary negotiations.

This is usually the case if the lender is not a professional microfinance business lending company.

The parties must record all the results of the negotiations in a paper agreement, which will further regulate the relationship between them associated with the transaction.

The agreement must include the following information:

Details of the parties.
Subject of the contract (description of things, their value or a specific amount of a cash loan).
The amount of the lender's remuneration (if the contract is interest-bearing).
Return procedure.
Loan term (if the contract is not termless).
Penalties.
Signatures of the parties.

The agreement may also include various additional conditions regarding the security and purposes of the loan, the procedure for early repayment or extension of the term, and others.

All parties should discuss them at the stage of negotiations and only then include them in the agreement.

You can download a sample interest loan agreement between legal entities here.

What are the rights and obligations of the parties

Consider what basic rights a lender can obtain under an agreement:

We also present the obligations and rights of the borrower, which are most often found in contracts:

In some cases, the contract may provide for other rights and obligations of the parties. For example, a borrower may be required to provide complete records of its business activities to the lender every quarter.

Payment Schedule

If the agreement provides for more than 1 payment for debt repayment and interest payments, and it is not of an unlimited nature, then a payment schedule must be drawn up to it.

This document fixes a specific amount and the date by which it must be transferred by the borrower to the lender.

Important! The payment schedule is an integral part of the contract and must be signed by both parties.

In case of partial early repayment, the amount of payments is subject to change and the parties must agree and sign a new schedule.

If an unlimited loan is issued, then the borrower must repay it within 30 days from the date of receipt of the corresponding request from the lender in writing. Interest, if any, must be paid in accordance with the terms of the agreement.

Debt collection under a transaction

Lenders are often faced with a situation where the borrower stops paying under the contract.

In this case, they have the right to charge a fine for each day of delay and demand an immediate return of all loan amounts and interest for the actual time of using the borrowed funds. But borrowers are in no hurry to fulfill such requirements voluntarily.

In the event that payments under the loan agreement have ceased, the lender has several options to collect the amount of the debt:

Each of the options has its own advantages and disadvantages. For example, going to court may require a lot of time, and the effect of collection will not always be comparable to the expected one, since the borrower may simply not have the funds and property sufficient to pay off the debt.

When attracting collectors and lawyers, the lender will have to spend money on their services and it is not always possible to predict the result either.

Often, concluding an assignment agreement is the easiest option for a creditor to ensure that at least part of the debt is returned by transferring it to professional debt collectors.

But it should be understood that most likely no one will buy a contract for 100% of the loan amount, and you will have to put up with a rather big discount.

Minimum and maximum percentage

The legislation of the Russian Federation practically does not limit the minimum and maximum interest rates applied on loans between legal entities.

Unlike consumer loans, a specific rate is agreed by the parties at the negotiation stage, although some points should be taken into account in this case.

An interest rate that is too high can lead to the fact that the transaction can be recognized as enslaving, and subsequently not valid. This is typical for ministries of justice, issued at several hundred percent per annum.

If the interest under the agreement is absent or is lower than the refinancing rate by more than 20%, the option is not excluded that it will be necessary to documentarily prove that the borrower did not have material benefits from such savings, and the lender to justify the economic sense.

In some cases, the parties to the transaction will have to defend their position in court.

Offers from organizations

There are a number of companies that provide loans to legal entities. Usually these are microfinance and microcredit companies.

Some of them work within the framework of government programs to help SMEs, and can offer rates that are quite comparable to those in banks or even lower, and the conditions will be much simpler.

It should be borne in mind that often when obtaining a loan, it is required to provide a surety from the business owners and it is highly desirable to have liquid security (goods in circulation, real estate).

Comment. The lower the rate, the more attention is paid to the verification of the borrowing company and the more documents are requested.

Let's compare in the table the offers of some organizations for loans for companies:

Lender Organization	Features:	Rate	Maximum term, rubles	Maximum amount, rubles
Flow	the loan is issued under the P2P lending scheme through Potok.Didzhetal LLC (affiliated with Alfa Bank)	from 20% per annum	6 months	2 million
Sverdlovsk Regional Entrepreneurship Support Fund (MFO)	issue loans with state support	10% per year for all borrowers	3 years	3 million
Financial department (IFC)	payments must be made weekly	calculated individually	1 year	1 million

Tax implications

Often, the taxation of an interest-bearing loan between legal entities raises many questions, especially if the creditor is not a specialized company, but a legal entity that has decided to make a one-time financial investment in a particular enterprise.

In the simplest case, the borrower simply includes the interest on the loan in expenses and reduces the taxable base for himself, and the lender already includes them in the profit, respectively increasing the tax base, pays income tax from them, etc. or a single tax when applying the simplified tax system. But a seemingly simple scheme in practice often fails.

Some tax authorities, upon discovering the fact of obtaining a loan with a very low interest rate, begin to try to prove that the borrower has a material benefit from saving on interest, which should be taken into account as profit.

The accounting procedure for interest on loans and credits is an issue that worries almost every organization. Consider the current accounting procedure, including touching on the specifics of accounting for interest on controlled transactions. Based on signature. 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 loan (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 in expenses as of the date of payment (sub.

251, paragraph 12 of Art. 270, sub. 1 clause 1.1 of Art. 346.15 of the Tax Code of the Russian Federation, operations to obtain and return loans are not included in income and expenses. The organization has the right, when calculating the tax base for income tax, to take into account the costs in the form of interest on the loan. According to sub. 2 p. 1 art. 265, p. 1 p. 2, art. 346.17 of the Tax Code of the Russian Federation). The specifics 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, on debt obligations of any type, the expense is interest calculated based on the actual rate - for tax purposes, interest is not subject to regulation.

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 contracts concluded both before January 1, 2015 and after this date (see, for example, the 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 expenses on them. For controlled transactions, the organization recognizes as an expense the interest on the loan, calculated based on the actual rate, if this rate is less than the maximum value of the range of limit values \u200b\u200b(clauses 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 Tax Consulting and Tax Dispute Resolution Department of KSK Group

Loan interest and income tax 2019

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

The client wants to take a microloan in the amount of 20,000 rubles. Interest on loans accepted for taxation in 2019 is recognized in expenses based on the actual rate. A similar rule applies to income. Income tax is one of the main taxes and fees in the Russian Federation. The circle of its payers is wide enough, but it includes only organizations. 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. from the reduced principal amount) .The change in the agreement affects the interest accrued in the 4th quarter of 2015, in 2019 and in the 1st quarter of 2019.

In these periods, they were recorded 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 of article 272 of the Tax Code of the Russian Federation). Interest on a debt obligation recognized as controlled debt is accounted for according to special rules.

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

And also in relation to controlled debt in accordance with cl.

p. 2 - 6 Art. 269 \u200b\u200bof the Tax Code of the Russian Federation (taking into account the norms of cl.

p. 7 - 13 of Art. 269 \u200b\u200bof the Tax Code of the Russian Federation). From January 1, 2019, Federal Law of February 15, 2019 N 25-FZ amended Art.

269 \u200b\u200bof the Tax Code of the Russian Federation and expanded the list of situations when debt is recognized as controlled (cl.

2 tbsp. 269 \u200b\u200bof the Tax Code of the Russian Federation). Today, first of all, it is worth paying attention to the norms of Art.

The 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 explained by the Ministry of Finance of Russia in a Letter dated May 5, 2010, the Organization has the right to take into account expenses in the form of interest on a 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 regarding the security and purposes of the loan, the procedure for early repayment or extension of the term, and others. Date of recognition of interest in accounting If the organization applies the 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, monthly for the entire term of the loan.

For organizations using the simplified tax system, the procedure is different. Interest is recognized as an expense according to the date it is paid.

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

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

At the same time, the taxpayer must understand how to correctly calculate the accounted interest amount and on what date it should be done. In the article, we will take a closer look at 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 a loan agreement

This is what these rates for ruble loans look like:

after January 1, 2019 - from 75 to 125% of the key rate of the Central Bank of the Russian Federation.
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 of EURIBOR, SHIBOR, LIBOR on the terms fixed in sub. 2-6 p. 1.2 of Art. 269 \u200b\u200bof the Tax Code of the Russian Federation. under the agreement, not money is transferred to the borrower, but other things determined by generic characteristics.

"Civil Code of the Russian Federation (part two)"

dated 26.01.1996 N 14-FZ (as amended on 06.04.2015, as amended on 07.04.2015) The right of the lender to receive interest from the borrower on the loan amount is established by cl.

1 tbsp. 809 of the Civil Code of the Russian Federation. This provision is dispositive, so the parties can agree on the amount of payment for the use of the loan not only as a percentage of the loan amount (or part of it), but also in a fixed amount. Better to issue an interest-free loan by the founder. there will be no income and expenses for the parties.

Provided that the individual trusts the office by 120%.)) In accordance with the contract, deposit money in the cashier of the office, issue a cash register.

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

Discussion of specific terms of the transaction should take place through negotiations before the conclusion of the contract. The lack of agreement on interest in the text of the agreement does not automatically make it interest-free, which is directly stated in Article 809 of the Civil Code of the Russian Federation. Disciplinary Action 2019 HR Records Management 2019 Changes for Lawyers 2019 © 2009-2019 Financial Management Center.

The 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.

Duration of the document The term 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 upon signing the agreement. There are times when the agreement period was not specified when the agreement was concluded.

How to draw up a loan agreement between legal entities

The agreement between legal entities is drawn up in writing. Essential conditions are indicated in the contract - without them, the court will invalidate the agreement. In order not to risk, you should draw up a contract in a notary office - the notary will make sure that the document is literate from the point of view of the law.

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 what he borrowed. It is impossible to pay money instead of property - the tax authorities will consider such a transaction to be a sale and purchase and will oblige the creditor to pay income tax.

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

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

Whether it is necessary to charge the lender with interest on a monthly basis - the parties decide for themselves. The debt can be calculated monthly, quarterly, with one transfer at the end of the contract. 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 per year. To lend for the fifth time, you need to issue a license for lending 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 in cash no more than 100,000 rubles. Larger loans must be posted to a checking account or sent to bank details. If an entrepreneur wants to borrow 200,000 rubles in cash and draws up two contracts for 100,000 rubles, 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 with the Federal Financial Monitoring Service. To do this, go to the service website and fill out the form. If the 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 pay off a company's debt to the state, but not his own loan. If a business owner or CEO spends borrowed money on himself, he risks getting fines and penalties or being criminally liable.

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 essential terms 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, there is no question of the need to pay compensation to the lender for the use of his property, that is, the payment of interest under the loan agreement, in paragraph 1 of Article 807 of the Civil Code of the Russian Federation. 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 has not been 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 business entities gives the issues of determining the amount of interest under a loan agreement and paying them key importance, 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

Clause 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 using them, unless otherwise specified in the agreement of the parties. Thus, a cash loan for an organization is assumed to be compensated in all cases when the text of the agreement does not explicitly state that it is interest-free.

The lack of agreement on interest in the text of the agreement does not automatically make it interest-free, which is directly stated in Article 809 of the Civil Code of the Russian Federation. In this situation, the procedure for their determination indicated in paragraphs 1 and 2 of Article 809 of the Civil Code of the Russian Federation will only operate. According to the provisions of these paragraphs, the borrower will have to pay interest every month of using the lender's funds in an amount determined based on the refinancing rate of the Central Bank of the Russian Federation at the time of transfer of the payment or part of it.

However, it is worth mentioning the special case when the subject of the loan is not money, but things. In such a situation, in accordance with clause 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 loan repayment

Articles 809 and 810 of the Civil Code of the Russian Federation closely link with interest under the agreement another key (but legally insignificant) condition of the agreement - the debt maturity date. According to paragraph 1 of Article 810 of the Civil Code, a loan can be urgent (with a fixed return date) or indefinite (in this case, the lender should notify the borrower about the date of repayment of the debt 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 ability to repay the loan early 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 the transaction between organizations involves the payment of interest, the debt can be repaid ahead of schedule only with the approval of the lender. Such a limitation is determined by the observance of his financial interests, since with an 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 the loan, the borrower is required to pay interest until the date of the actual repayment of the loan, inclusive. Thus, the possibility of early repayment of the 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 losing part of the estimated 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 02.07.2010 No. 151-FZ, which determine that restrictions on the multiplicity of the amount of interest in relation to the principal amount of the loan (on the maximum amount of interest) exist only in relation to citizens borrowers and do not apply to organizations.

For your information: in judicial practice, a position has developed, the purpose of which is to create conditions for establishing fair and non-profitable interest on credit and loan transactions. As an example, we can cite the definition of the Collegium of the Armed Forces of the Russian Federation of 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 serve only as a guide, and not as 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 by virtue 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 the loan may be interest-free, that is, free for the borrower.

Change in interest

According to clause 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 of the contract, subject to their mutual consent. The unilateral change of interest by the lender is expressly prohibited both by Article 450 of the Civil Code of the Russian Federation and by subparagraph 4 of paragraph 1 of Article 12 of the already mentioned Federal Law No. 151 (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 adopted by them.

In this case, it can also be about giving the agreement retroactive effect, that is, extending the effect of the changes for the period preceding their approval by the parties. Otherwise, according to clause 4 of Article 453 of the Civil Code of the Russian Federation, all interest already paid at the previously concluded rate will remain in effect. For example, the borrower does not have the right to demand recalculation of previously made interest payments if the adopted changes reduce the interest rate.

Late repayment of the loan and payment of interest with a delay - the consequences under Article 811 of the Civil Code of the Russian Federation

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

If the order and amount of the penalty, in accordance with clause 4 of Article 395 of the Civil Code of the Russian Federation, are determined in the agreement of the parties, the rules specified in the agreement apply.
If the parties do not determine special sanctions for delayed debt, the provisions of Articles 395 and 811 of the Civil Code of the Russian Federation apply.

According to paragraph 1 of Article 811, in case of non-repayment of the loan, the borrower must pay the so-called penalty interest calculated 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 of 08.10.1998 No. 14. Moreover, 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 calculated based on the key rate of the Central Bank of the Russian Federation.

Interest received tax

When registering 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 to him borrowed money or things. However, for the use of borrowed funds (things), a completely different procedure is applied in relation to interest - both penalty and ordinary.

With regard to 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 transactions are exempt from this tax. Profit 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. The interest received in this case is accounted for as non-operating income.

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

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

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One legal entity plans to issue a loan to another legal entity at 1% per annum. All parties to the relationship are residents of the Russian Federation and apply the general tax regime. At the same time, subsidiaries are agricultural producers applying the tax rate for corporate income tax of 0% on the basis of clause 1.3 of Art. 284 of the Tax Code of the Russian Federation.
Loans are provided in rubles. The parties to the agreements are not taxpayers of mineral extraction tax, are not residents (participants) of a special or free economic zone, as well as participants in regional investment projects. The parties to the loan agreements are not members of the same consolidated group of taxpayers formed in accordance with the Tax Code of the Russian Federation.
Can one legal entity issue a loan to another legal entity at 1% per annum if the legal entities are not interdependent entities, and in the case of interdependence of legal entities (one of them is the founder (participant, shareholder) of the other with 100% participation)? What are the tax risks in this case?

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Tax implications of interest-free loans

Company information KSK GROUP

KSK group traces its history back to 1994. From the moment of its foundation to the present day, the company has been among the market leaders in consulting services in the field of audit, tax, law, valuation and management consulting. Over 20 years of work, more than 2000 projects have been implemented for the largest Russian companies.

KSK Group offers a comprehensive and practical solution to the most pressing problems facing financial and general directors of companies and business owners. An individual approach, a deep understanding of the needs and goals of clients, combined with practical knowledge, allow us to solve these problems as efficiently as possible.

The KSK group team is a team of more than 350 specialists with unique experience in implementing projects for both medium-sized and largest Russian corporations.

Currently, KSK Group offers a full range of services and solutions for business:

audit according to Russian and international standards;
tax and legal consulting;
outsourcing and automation of business processes;
solutions to attract funding;
marketing solutions and business strategy development;
management and personnel consulting;
evaluation and examination;
support of capital transactions;
Due-diligence.

With the adoption of the Tax Code of the Russian Federation, which contained Art. 40, which regulated taxation between related parties, it was not clear to many whether this article applied to the situation of issuing interest-free loans.

In this regard, the issue was reflected in judicial practice. In the resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of August 3, 2004 No. 3009/04, it was stated that if an organization received funds by borrowing at low interest or no interest at all (interest-free loan), then it has no income taxed on profit. Following the Supreme Arbitration Court of the Russian Federation, corresponding clarifications appeared in the letters of the Ministry of Finance of Russia (Letter of the Ministry of Finance of Russia dated April 2, 2008 No. 03-03-06 / 1/245, Letter of the Ministry of Finance of Russia dated July 17, 2008 No. 03-03-06 / 1 / 415, Letter of the Ministry of Finance of Russia dated August 29, 2011 No. 07-02-06 / 161).

Thus, the material benefit received by the organization from the use of the above loan does not increase the tax base for income tax, since it is not indicated as an object of taxation for taxpayers for income tax.

In addition, no taxable income is generated by the entity that issued the interest-free loan. This conclusion was confirmed by arbitration practice (resolution of the FAS of the Volga District of April 23, 2010 in case No. A72-15093 / 2009, resolution of the Moscow District of July 28, 2010 No. KA-A40 / 7751-10). The Ministry of Finance of Russia also agreed with this opinion (letter from the Ministry of Finance of Russia dated August 11, 2011 No. 03-03-06 / 2/120).

After amending the Tax Code of the Russian Federation, in particular, the entry into force of Section V.1 from January 1, 2012. “Interdependent persons. General provisions on prices and taxation. Tax control in connection with transactions between related parties. Agreement on Pricing ”, the tax authorities immediately explained that since the Tax Code of the Russian Federation now talks about transactions, and not about the price of goods / works / services, as it was in Art. 40 of the Tax Code of the Russian Federation (and the loan agreement, of course, refers to transactions), then the provisions of this chapter apply to loan agreements.

The need to apply clause 1 of Art. 105.3 of the Tax Code of the Russian Federation to the interest-free loan agreements, the Ministry of Finance of Russia has repeatedly indicated (Letter of the Ministry of Finance of Russia dated October 2, 2013 No. 03-01-18 / 40821, Letter of the Ministry of Finance of Russia dated August 13, 2013 No. 03-01-18 / 32745). According to the government agency, the lender's income from transactions on the provision of an interest-free loan between related parties is determined based on the amount of interest that would have been received by the lender in the event of a transaction between non-related parties in commercial and (or) financial conditions comparable to the analyzed transaction.

In addition, from January 1, 2015, Art. 269 \u200b\u200bof the Tax Code of the Russian Federation is set out in a new edition (as amended by the Federal Law of December 28, 2013 No. 420-FZ "On Amendments to Article 27.5-3 of the Federal Law" On the Securities Market "and parts one and two of the Tax Code of the Russian Federation" ). According to par. 3 p. 1 of Art. 269 \u200b\u200bof the Tax Code of the Russian Federation, for debt obligations of any type arising from transactions recognized in accordance with the Tax Code of the Russian Federation as controlled transactions, income (expense) is the percentage calculated based on the actual rate, taking into account the provisions of Sec. V.1 of the Tax Code of the Russian Federation, unless otherwise provided by Art. 269 \u200b\u200bof the Tax Code of the Russian Federation.

For a debt obligation arising as a result of a transaction recognized in accordance with the Tax Code of the Russian Federation as a controlled transaction, the taxpayer has the right to recognize as income the interest calculated based on the actual rate on such debt obligations, if this rate exceeds the minimum value of the range of limit values \u200b\u200bestablished by clause 1.2 of Art. 269 \u200b\u200bof the Tax Code of the Russian Federation (clause 1.1 of Article 269 of the Tax Code of the Russian Federation as amended by the Federal Law of March 8, 2015 No. 32-FZ "On Amending Part Two of the Tax Code of the Russian Federation", letters of the Ministry of Finance of Russia dated April 06, 2015 No. 03 -01-18 / 19113, dated March 27, 2015 No. 03-03-06 / 2/17141).

The foregoing fully applies to loan agreements. In 2015, in the proceedings of arbitration courts, tax disputes appeared on additional tax charges under loan agreements that do not fall under the category of controlled transactions.

So, for example, in the ruling of the Eleventh Arbitration Court of Appeal dated September 16, 2015 in case No. А55-6976 / 2015, a situation was considered when the organization issued an interest-free loan, and the tax authority charged the lender with the lost interest. At the same time, despite the fact that the concluded transactions were not controlled, which is not denied by the tax authority, the Interdistrict Inspectorate of the Federal Tax Service of Russia for the largest taxpayers in the Samara region believed that any tax authorities of the Russian Federation were given the right to check the compliance of market prices for any transactions by Article 105.3 of the Tax Code of the Russian Federation between interdependent persons. The transactions under consideration were aimed at "creating conditions for the emergence of an unjustified tax benefit", which is the basis for the application of clause 3 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 53 of October 12, 2006. Instead of providing a loan, the lender, in the opinion of the tax authority, could receive a higher income from placing funds on a deposit with a bank.

To assess the “market” level of interest rates, the tax authority accepted the information provided by the International Information Group Interfax (SPARK), according to which in 2012 loans in rubles for a period of one to three years were provided to commercial organizations at a rate of 12.58 % to 13.89%. As a result, the contested decision made an additional tax assessment based on the estimated income that could be obtained by placing funds on the deposit at the minimum rate.

This argument of the tax authority was not accepted by the court in view of the following. The court noted that the right to determine, for tax purposes, the taxpayer's revenue (under a transaction with an interdependent person) belongs exclusively to the Federal Tax Service of Russia, which is directly indicated in clause 2 of Article 105.3 of the Tax Code of the Russian Federation. Other tax authorities have not been empowered to control the level of “market” prices. Taking into account the foregoing, the use of this tax control mechanism for transactions that do not fall under it is unacceptable, since:

allows the implementation of the rights of tax authorities not provided for by legislation and arbitrary application of legislation;
entails an arbitrary choice and implementation of tax control measures;
deprives the taxpayer of the guarantees provided by law when carrying out similar control measures;
leads to taxation of unearned abstract income.

In addition, the tax authority did not establish the fact that an unjustified tax benefit was received from these transactions.

Thus, in order to assess the risk of tax control measures in relation to the lender organization, according to the court, it is necessary to determine the amount of income from transactions with a related party, including in the income indicator the amount of interest that the lender could receive from the borrower. If the amount of income from transactions for the year does not exceed the established value, then the transaction of an interest-free loan is not subject to control. Similar conclusions are contained in the ruling of the Ninth Arbitration Court dated September 30, 2015 No. 09AP-35789/2015.

In the ruling of the Arbitration Court of the Volgo-Vyatka District of October 14, 2015 in case No. A29-10095 / 2014, it is stated that during the audit, the inspection concluded that the company did not reflect the interest on the loan as part of non-operating income for the purpose of calculating profit tax issued to an interdependent person. When considering the case, the court proceeded from the fact that the inspectorate did not provide evidence that the company had received an unjustified tax benefit as a result of unfair behavior and abuse of its rights. In addition, the court concluded that the inspectorate did not comply with the conditions for conducting tax control on transactions with related parties established by Section V.1 of the Tax Code of the Russian Federation.

An interest rate that is too high can lead to the fact that the transaction can be recognized as enslaving, and subsequently not valid. This is typical for ministries of justice, issued at several hundred percent per annum.

Interest on loans between related parties

In a letter dated 15.07.2015 No. 03-01-18 / 40737, the Ministry of Finance of the Russian Federation explained that companies, including interdependent companies, are legally allowed to conclude loan agreements on terms convenient for them. However, for income tax, interest on such transactions for related parties (VL) is taken into account in accordance with clause 1.1 of Art. 269 \u200b\u200bof the Tax Code of the Russian Federation. At the same time, this norm applies to interest accrued from January 1, 2015, regardless of the date of the loan (before January 1 or after).

Learn about the features of the methods of recognition of income and expenses for tax purposes from our material "Accrual and cash method: the main differences."

Transactions between related parties are considered controlled if they are characterized by the conditions of Art. 105.14 of the Tax Code of the Russian Federation. Since January 1, 2015, the tax legislation considers interest on debt obligations under controlled transactions between overhead lines as income / expense, determined based on the actual rate, but within the rates fixed in clause 1.2 of Art. 269 \u200b\u200bof the Tax Code of the Russian Federation.

This is what these rates for ruble loans look like:

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;
after January 1, 2016 - from 75 to 125% of the key rate of the Central Bank of the Russian Federation.

As a reminder, from 19.09.2016 the key rate is equal to 10.0% per annum.

Interest-free loan between related parties

As for interest-free loans between overhead lines, there are also explanations of the Ministry of Finance of the Russian Federation, set out in the letter dated 18.07.2012 No. 03-01-18 / 5-97.

In practice, it is not uncommon for one organization, which is part of a group of legal entities, to receive a loan at an interest rate from a banking organization, and then transfers it to an overhead line for its needs as an interest-free loan (for example, to purchase fixed assets or working capital). In such cases, when checking, the tax authorities often consider the interest expenses under the loan agreement and the loan agreement as economically unjustified, and the transaction itself between the two overhead lines is formal. However, in such a situation, judges do not always side with the controllers. So, for example, in the resolution of the CA of the North-Western District of 01.07.2015 No. A56-60966 / 2014, the judges supported the taxpayer, having come to the conclusion that transactions for the redistribution of funds (regardless of whether they are credit or not) within the group of legal entities do not contradict the postulates Tax Code of the Russian Federation.

Interest on loans between overhead lines is considered income / expense for each of the parties. Moreover, the theses formulated in Art. 269 \u200b\u200bof the Tax Code of the Russian Federation are applicable to both controlled and uncontrolled transactions. Income from interest-free borrowing is not included in the income base.

Minimum interest on loans between legal entities in 2017

Other criteria for signing an agreement are reflected in Art. 807 - 808 of the Civil Code of Russia. During the period of signing the document, the participants necessarily agree on the interest rate and fix the amount in the agreement. It is recommended to draw up a document using a template. With interest Loans can be provided with or without interest. This must be indicated in the document. An interest-bearing loan implies a return by a potential borrower to the lender of the amount of debt obligations together with accrued interest, which are remuneration for the use of other people's money. The document must also display the option of calculating interest rates with the total amount. Often, interest is charged on the amount of debt. In addition to the agreement, a payment schedule is attached. Interest-free Can a loan agreement be interest-free.

What is the minimum rate to indicate in the loan agreement?

Tax Code of the Russian Federation, and takes into account the income (expenses) on such a transaction when determining the tax base for corporate income tax in accordance with Article 275.2 of the Tax Code of the Russian Federation; any other party to the transaction is not a taxpayer specified in paragraph 1 of Article 275.2 of the Tax Code of the Russian Federation, or is a taxpayer specified in paragraph 1 of Article 275 of the Tax Code of the Russian Federation, but does not take into account the income (expenses) on such a transaction when determining the tax base for corporate income tax in accordance with article 275.2 of the Tax Code of the Russian Federation; 7.
at least one of the parties to the transaction is a participant in a regional investment project that applies the tax rate on corporate income tax to be credited to the federal budget in the amount of 0 percent or a reduced tax rate on corporate income tax to be credited to the budget of the subject RF, in the manner and on the conditions provided for in Article 284.3 of the Tax Code of the RF.

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