Interest-free loan between legal entities. Tax consequences of an interest-free loan between legal entities

Russian legislation allows the parties to a transaction to include in the loan agreement a condition that it is interest-free. In this situation, you need to consider the tax consequences of an interest-free loan.

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Everyone knows what a loan is. Almost everyone has taken out a loan at least once and knows the conditions for applying for it. The parties to the transaction can enter into a gratuitous loan.

Entrepreneurs often use this technique to distribute financial resources between partners. Exactly the same agreements are signed by business entities.

But before concluding this agreement, you should familiarize yourself with all the nuances of the procedure.

Important aspects

In this case, the IRS may impose taxes on the borrower.

This method of taxation, when a person is charged with profit by law, is an example of countering cases of receiving unjustified benefits. Thus, physical the person will have to pay income tax.

Related parties

When concluding an interest-free loan agreement between related parties the creditor company faces tax risks.

As the smallest possible rate, it is necessary to consider a rate in an amount exceeding 75% of the rate of the Central Bank of Russia.

The object of taxation and the tax base for income for Russian companies(who are not members of a consolidated group of taxpayers) is considered income.

It represents the difference between the income they received and the amount of expenses they incurred. They are defined according to Ch. 25 of the Tax Code of Russia.

Income for the purposes of income taxation based on the Tax Code is considered to be economic benefit in financial or in kind, taken into account in the situation of the probability of its assessment.

Such benefits are assessed and assigned in accordance with Ch. 25 Tax Code of Russia.

Individual entrepreneurs

By Russian legislation Individual entrepreneurs are not legal entities. persons, all transactions between them are formalized according to the rules that are determined for individuals. persons

Interest-free loan is quite common in Russian economy phenomenon. It is not only common among affiliates, who thus often redistribute funds among themselves, but also often appears in relations between independent business entities. They are all concerned about the tax consequences of such transactions: does not non-operating income arise when receiving an interest-free loan in the form of saved interest, which is subject to taxation in the usual manner?

According to current legislation loan agreement is an agreement under which the lender transfers ownership of funds or any things defined by generic characteristics to the borrower. In this case, the borrower undertakes to return the amount of the loan received to the lender or return the items received.

In accordance with Art. 809 Civil Code of the Russian Federation The loan agreement is assumed to be interest-free, unless expressly provided otherwise, in the following cases:

• an agreement concluded between citizens for an amount not exceeding fifty times the amount established by law minimum size remuneration, and is not related to the implementation entrepreneurial activity at least one of the parties;
• under the agreement, the borrower is transferred not money, but things defined by generic characteristics.

Thus, a loan agreement is interest-free when it is not related to the entrepreneurial activity of at least one of the parties. Such agreements may exist in practice, but it will be necessary to prove the fact that one of the parties does not pursue commercial gain when concluding this agreement.

With an interest-free loan quite acceptable early return the amount of the debt, since such a loan does not bring income to the lender (he is interested in repaying the obligation as quickly as possible). But after the money is returned, the legal obligations of the parties under the loan agreement do not terminate until the appropriate taxes are paid (the tax consequences here are different for individuals and legal entities).

Legal entities and individuals as lenders are not subject to taxation, since the provision of the loan amount does not entail the receipt of income.

The issue of taxation of the borrower remains controversial.

Tax officials often express the opinion that a taxpayer who has received an interest-free loan has non-operating income in the form of a service consumed free of charge or a property right received free of charge. In support of this point of view, its supporters refer to paragraph 8 of Art. 250 of the Tax Code of the Russian Federation, which provides for the inclusion in non-operating income of property (work, services) received free of charge or property rights. Valuation economic benefits, according to this point of view, should be based on the refinancing rate of the Central Bank of the Russian Federation.

FOR YOUR INFORMATION

The refinancing rate in 2017 is 9 % per annum (Information from the Bank of Russia dated June 19, 2017).

It should be noted that this position is often stated by tax officials and is perceived by taxpayers as the official opinion of the Russian Ministry of Taxes. It is difficult to judge what caused this, but documentary evidence has not yet been provided that such arguments come from the Russian Ministry of Taxes and Taxes.

Under an interest-free loan agreement, a legal entity (borrower company), when transferring funds by the lending company, receives a certain economic benefit, since it received the funds and used them in its economic activity. These funds do not fall under the definition of “taxable base” (clause 10 of Article 251 of the Tax Code of the Russian Federation). In this case, the legal entity (lender company) does not pay taxes on the generated income. Thus, it pays neither VAT nor income tax.

The situation with an individual borrower is completely different. If an individual takes a loan from an individual, then he also does not have to pay any taxes. If a loan to an individual (for example, an employee) was issued by an organization, then it will be the organization that will be the tax agent for personal income tax in relation to income in the form of material benefit. Therefore, the organization will have to (Article 226 of the Tax Code of the Russian Federation):

• monthly calculate income in the form of material benefits and personal income tax on it;
• withhold tax from nearby cash payments an individual;
• transfer the withheld tax to the budget;
• At the end of the year, submit a 2-NDFL certificate to the individual.

If cash income are not paid to an individual and there is nothing to withhold the tax from, then at the end of the year no later than March 1, you must inform the Federal Tax Service about the impossibility of withholding the tax (clause 5 of Article 226 of the Tax Code of the Russian Federation).

Starting January 2016 material benefits from interest-free loans are calculated using the following formula(subparagraph 1, paragraph 1, paragraph 2, article 212 of the Tax Code of the Russian Federation):

Material benefit on the last number = Loan amount × 2/3 key rate Central Bank valid on the last day of the month × Number of calendar days of using the loan in the month / 365 (366).

The number of days of using the loan is calculated:

• in the month when the loan was issued - from the day following the day the loan was issued until the last day of the month;
• in the month when the loan is repaid - from the first day of the month until the day the loan is repaid;
• in other months - as the calendar number of days in a month.

Interest-free loans between two legal entities are possible, but they do not have to be permanent. Otherwise, the lending company may have a problem such as illegal banking activities.

Does the receipt by a taxpayer of an interest-free loan constitute income?

Statements about the formation of non-operating income from a taxpayer who received an interest-free loan, in addition to arguments about the gratuitous receipt of property rights or services by him, are often argued by reference to Art. 41 Tax Code of the Russian Federation. In this case, the emphasis is on the emergence of economic benefits for the borrower, which, according to this article, defines the term “income”. However, it is not always taken into account that there is virtually no mechanism for assessing the economic benefit of the borrower.

The main thing when concluding an interest-free loan agreement between two legal entities is to prove that the loan provided is not financial service.

Service for tax purposes activity is recognized, the results of which do not have material expression, are sold and consumed in the process of carrying out this activity. IN this definition contains one of the mandatory features of the service - implementation of performance results. In a relationship interest-free loans this criterion is not observed, since the lender’s activity ends at the moment when the loan is transferred, and the borrower consumes the results of the activity only after its completion. Therefore, an interest-free loan cannot be considered a financial service for tax purposes.

In practice, when concluding an interest-free loan agreement between legal entities, according to the tax authorities, the borrower has taxable income under income tax in the form of a right free use with other people's money (service received free of charge). But arbitration practice recognizes this position of the tax authorities as unlawful.

As is known, in accordance with Ch. 25 of the Tax Code of the Russian Federation, any interest (received under loan agreements, credit, bank account, bank deposit, as well as by securities and other debt obligations) due to the requirements of paragraph 6 of Art. 250 of the Tax Code of the Russian Federation relate to non-operating income. If we consider the issuance of a loan as a service, and interest on the loan as a fee for the service, then in this case the interest should be considered as income from the sale of the service. However, as stated above, cases where income in the form of interest for profit tax purposes would be taken into account as income from sales are impossible under the Tax Code of the Russian Federation. Therefore, it is inappropriate to talk about issuing a loan as a service.

When resolved controversial issues arbitration practice must be taken into account. It should be noted that the judiciary does not consider a loan as a service.

Often, to the arguments regarding the application of the concept of “service” to the provision of a loan, the tax authority adds a reference to the Decision Supreme Court RF dated 02/24/1999 No. GKPI 98-808, 809 “On dismissing without satisfaction the complaint about invalidating subparagraph “b” of paragraph 7 and paragraph 29 of the Instruction of the State Tax Service of the Russian Federation dated 10/11/1995 No. 39 “On the procedure for calculating and paying value added tax” "(hereinafter referred to as Decision No. GKPI 98-808, 809), where the highest Judicial authority came to the conclusion that the norm of Art. 779 of the Civil Code of the Russian Federation (under a contract for the provision of services for a fee, the contractor undertakes, on the instructions of the customer, to provide services - to perform certain actions or carry out certain activities, and the customer undertakes to pay for these services) does not actually exclude the possibility of extending the rules relating to the contract for the provision of services for a fee, and in relation to services under rental of property.

Consequently, the Supreme Court of the Russian Federation recognized the activity of leasing property as an activity of providing services.

Taking into account this argument, we believe that Decision No. GKPI No. 98-808, 809 cannot be applied to the case under consideration for the following reasons:

• The Supreme Court of the Russian Federation made these conclusions only about the relationship between rent and paid services. A comparison of borrowed relations and relations arising under a contract for the provision of services for a fee was not carried out;
• The Supreme Court of the Russian Federation did not examine the concept of service contained in paragraph 5 of Art. 38 of the Tax Code of the Russian Federation, according to which a service is an activity whose results do not have material expression, but are sold and consumed in the process of its implementation.

Interest is charged for the use of funds by the borrower, and not for the transfer of them by the lender. Whereas when selling a service, a fee is charged for carrying out a certain activity (performing actions) by the person providing the service (if we apply the analogy to a loan, the lender). The lender does not carry out any activities during the period for which the loan was provided.

Letter of the Ministry of Finance of Russia dated July 14, 2009 No. 03-03-06/1/465, as well as letters of the Ministry of Finance of Russia dated March 17, 2009 No. 03-03-06/1/153, 05.20.2009 No. 03-03-06/1/ 334 explain that in accordance with Art. 41 Tax Code of the Russian Federation income recognized economic benefit in monetary or in kind, taken into account if it is possible to assess it to the extent that this benefit can be assessed, and determined in accordance with the chapters “Tax on personal income”, “Tax on corporate profits”, “Tax on capital income” of the Tax Code of the Russian Federation. Chapter 25 “Organizational Income Tax” of the Tax Code of the Russian Federation does not provide an assessment of the “economic benefit” for using an interest-free loan.

The unpaid amount of interest for income tax purposes is not considered as income for the borrower. The material benefit received by the organization from using an interest-free loan does not increase tax base on income tax.

Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated August 3, 2004 No. 3009/04 clarifies that the material benefit from saving on interest for the use of borrowed funds is not income that is subject to income tax. The use of funds under a loan agreement without the lender charging interest does not constitute the provision of services.

Tax consequences of loan default

Due to the requirements of paragraph 18 of Art. 250 of the Tax Code of the Russian Federation, the amount of non-operating income of a taxpayer must be included accounts payable(liabilities to creditors) written off due to expiration limitation period or for other reasons. It follows from the stated norm that the taxpayer is obliged to recognize as taxable non-operating income the amounts of his debt to third parties, provided that such debt was not claimed by the creditor in fixed time statute of limitations. Limitation period a period is recognized for the protection of the right under the claim of a person whose right has been violated (Article 195 of the Civil Code of the Russian Federation).

In relation to a loan agreement, the lender who issued the loan amount has the right to demand its return in judicial procedure after the deadline established by the contract for repayment of the loan occurs within the limitation period. In accordance with Art. 196 of the Civil Code of the Russian Federation, the general limitation period is three years. In paragraph 1 of Art. 200 of the Civil Code of the Russian Federation states that the limitation period begins from the day when the person learned or should have learned about the violation of his right. Thus, the period is calculated from the next day after the date of repayment of the loan amount established in the agreement. For example, the loan amount is provided for a period of five years. After given period Under the terms of the agreement, the lender has the right to demand, and the borrower is obliged to return the loan amount received. If the borrower does not repay the loan amount in voluntarily, then the lender has the right to claim it in court within the limitation period of three years.

From the above it follows that the borrower is obliged after the expiration of eight years (5 years to repay the loan under the agreement plus 3 years for forced judicial collection) write off accounts payable under the loan agreement and include the amount of this debt in the tax base for income tax. It should be noted that, due to the provisions of Art. 203 of the Civil Code of the Russian Federation, the limitation period is interrupted by the obligated person taking actions indicating recognition of the debt. After a break, the limitation period begins anew, and the time elapsed before the break is not counted towards the new period.

According to the explanations contained in paragraph 20 of the joint Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 12, 2001 No. 15 and the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 15, 2001 No. 18, actions indicating the recognition of a debt should, in particular, include recognition of a claim (if in in response to the creditor’s request to repay the debt, you sent him a letter stating that you are ready to pay him). The statute of limitations will also be interrupted if you yourself contact the creditor with a proposal to change the terms of the agreement (for example, ask for a deferment or installment plan). Under the above circumstances, if the borrower sends notification letters to the creditor (lender) every three years, calculated from the day after the day of expiration of the loan repayment period under the agreement, expressing his readiness to repay the loan amount in the near future, the statute of limitations will be restored every three years (not will expire). Therefore, there will be no need to recognize taxable income.

As an example of the content of the letter, the following text can be given:

“In accordance with the terms of the loan agreement dated August 1, 2012, our company was obliged to repay the loan amount in the amount of 120,000 rubles. by 01.08.2013. Due to the difficult financial situation, we were unable to return the specified amount within the period established by the contract. We express to you our readiness to return what we received. cash, as soon as financial position our enterprise will allow us to fulfill our obligations.”

Instead of the specified letter from the borrower, it is permissible for the lender to issue a claim from the lender and a response to the claim from the borrower for recognition of the amount of the debt. In the loan agreement, it is advisable to indicate the maximum possible period for repaying the loan, which will lead to a delay in the start date for calculating the limitation period. Current civil legislation does not establish any restrictions regarding the period for providing funds under a loan agreement. Such a period may be set at the discretion of the parties to the agreement. In order to avoid the need to take into account the amount of a non-repaid loan as part of taxable income, an enterprise must:

• set a maximum (within reasonable limits - for example, 20 years) period for repayment of the loan amount;
• after the loan repayment period has expired and 2 years and 11 months have passed after this period, send a letter to the lender acknowledging the debt and the obligation to repay it within a reasonable time;
• the specified letter must be sent to the lender by mail with acknowledgment of receipt, or you must keep a copy for yourself with a note from the lender about receipt of such a letter. An interest-free loan agreement is not often concluded, since mainly relatives or friends resort to this type of transaction. The subject of the loan is money/things that, according to the agreement, one party (the lender) transfers to the other (the borrower). The period for returning money/items is specified in the document. When applying for an interest-free loan, the contract must indicate that no interest will be charged. Items are considered by default to be transferred as an interest-free loan. The agreement must be drawn up in writing, otherwise (if the loan is oral) it is considered invalid, and in the event of a dispute, the parties lose their rights and will be forced to look for witnesses to the conclusion of the transaction. A loan schedule is attached to the document, as well as the terms for its repayment. The amount may be returned early. The agreement also stipulates the responsibilities of the parties:
• in case of violation of contractual obligations, the unscrupulous party must compensate for losses;
• in case of late repayment of the loan, the borrower pays a penalty for each day of delay in the amount agreed upon by the parties;
• if one of the parties violates the terms, which leads to material losses for the other party, the culprit is obliged to pay a fine in the amount of damage incurred;
• If the loan repayment schedule is violated, the lender has the right to terminate the contract early.

According to paragraph 1 of Art. 808 of the Civil Code of the Russian Federation, in the case where the lender is a legal entity, the loan agreement must be concluded in writing. Otherwise, it may be declared invalid on the basis of Part 2 of Art. 162 of the Civil Code of the Russian Federation with all the ensuing consequences provided for in Art. 167 of the Civil Code of the Russian Federation (bilateral restitution - return by the parties to each other of everything received under the transaction).

Thus, the main thing when concluding an interest-free loan agreement between two legal entities is to prove that the loan provided is not a financial service, which sometimes causes difficulties. Therefore, in our opinion, it is better to use in practice an interest-bearing loan agreement at a small interest rate, but in this case a tax on the lender’s profit in the amount of 20% arises.

Are transactions with interest-free loans recognized as controlled transactions in accordance with the Tax Code of the Russian Federation?

The list of grounds on which persons are recognized as interdependent has been significantly expanded (Clause 2 of Article 105.1 of the Tax Code of the Russian Federation).

In accordance with sub. 1 item 2 art. 105.14 of the Tax Code of the Russian Federation establishes that controlled transactions are transactions between related parties (taking into account the specifics provided for in this article).

According to paragraph 1 of Art. 105.3 of the Tax Code of the Russian Federation, if in transactions between interdependent persons commercial or financial conditions are created or established that are different from those that would take place in transactions recognized in accordance with Section V.1 of the Tax Code of the Russian Federation as comparable, between persons who are not interdependent, then any income (profit, revenue) that could have been received by one of these persons, but due to the specified difference were not received by him, are taken into account for tax purposes by this person.

Thus, transactions to provide an interest-free loan between related parties or issue a guarantee to ensure the fulfillment of obligations of a related party may be an example of the creation or establishment of commercial or financial conditions, different from those that would take place in transactions recognized in accordance with Section V.1 of the Tax Code of the Russian Federation as comparable, between persons who are not interdependent.

It should be noted that in accordance with paragraph 3 of Art. 105.3 of the Tax Code of the Russian Federation, when determining the tax base taking into account the price of goods (work, services) applied by the parties to the transaction for tax purposes (hereinafter referred to as the price applied in the transaction), the specified price is recognized as a market price if the federal executive body authorized for control and supervision in area of ​​taxes and fees, unless the contrary has been proven or if the taxpayer has not independently adjusted the tax amounts in accordance with clause 6 of Art. 105.3 Tax Code of the Russian Federation.

The taxpayer has the right to independently apply for tax purposes a price different from the price applied in the specified transaction, if the price actually applied in the specified transaction does not correspond to the market price.

If during implementation tax control The federal executive body authorized to control and supervise in the field of taxes and fees will establish that transactions involving the provision of an interest-free loan between interdependent persons or the issuance of a guarantee to ensure the fulfillment of the obligations of an interdependent person correspond to the definition of entrepreneurial activity (Clause 1 of Article 2 of the Civil Code of the Russian Federation ) and the terms of these transactions do not differ from those that would take place in comparable transactions between persons who are not interdependent, then there are no grounds for adjusting the tax liabilities of such a taxpayer.

According to paragraph 9 of Art. 105.14 of the Tax Code of the Russian Federation when determining the amount of income from transactions federal body of the executive branch, the person authorized for control and supervision in the field of taxes and fees, for the purposes of this article, has the right to check the compliance of the amounts of income received from transactions with the market level, taking into account the provisions of Chapter. 14.2, 14.3 Tax Code of the Russian Federation. The lack of income of the person who issued the interest-free loan or guarantee is not an obstacle to tax control.

Provision of legal entities other than credit institutions, interest-free loans to individuals and (or) other legal entities, as well as the receipt of such a loan are considered transactions with funds or other property subject to mandatory control (Federal Law dated 08/07/2001 No. 115-FZ (as amended on 07/29/2017 ) “On combating the legalization (laundering) of proceeds from crime and the financing of terrorism”). Control is required if the amount of such transactions is equal to or exceeds 600,000 rubles. or equal to the sum in foreign currency, equivalent to 600,000 rubles, or exceeds it.

Thus, transactions for the provision of an interest-free loan between interdependent persons or the issuance of a guarantee to ensure the fulfillment of its obligations in cases provided for by the Tax Code of the Russian Federation can be recognized as controlled, and in some cases they are so according to Russian legislation.

E. B. Nesterova, leading lawyer

We are completing a series of articles devoted to the loan agreement. In the last issue of the magazine (BUKH.1S No. 1, p. 30), 1C:ITS specialists examined in detail what tax consequences arise for the lender depending on the terms of the concluded agreement. In this article, they will focus on the borrower's taxes and talk about what he should pay attention to when concluding a loan agreement.

Getting a loan

Under a loan agreement, the borrower receives ownership of property (things or money), which he undertakes to return to the lender in the same quantity. The condition on the loan amount or the properties and quantity of things transferred for loan, that is, the condition on the subject of the agreement, is necessarily fixed in the agreement.

VAT

Loan operations in in cash are not subject to VAT (clause 15, clause 3, article 149 of the Tax Code of the Russian Federation). Therefore, if the loan was received in cash, then there are no tax consequences for this tax.

However, in the case of receiving a loan in non-monetary form, the situation is ambiguous. The Russian Ministry of Finance spoke about this a long time ago (letter dated April 29, 2002 No. 04-02-06/1/71). According to financiers, the transfer of commodity loans is, in fact, a sale and is subject to value added tax.

There is a similar arbitration practice: FAS decisions Ural district dated July 4, 2011 No. F09-3429/11, FAS of the West Siberian District dated September 22, 2010 No. A03-13275/2009.

However, there is also the opposite position: the provision of a loan in kind is not subject to VAT. It is expressed in the resolution of the Federal Antimonopoly Service of the Moscow District dated April 23, 2008 N KA-A40/3008-08 in case No. A40-41643/07-87-240. According to the judges, repayment of the loan indicates that there is no sale, therefore, there is no object for VAT taxation.

Income tax

Cash or other property received under a loan agreement is not included in the borrower’s income when calculating income tax (clause 10, clause 1, article 251 of the Tax Code of the Russian Federation).

Personal income tax

Funds received under the loan agreement are repayable. Therefore, they are not recognized as income of the entrepreneur in personal income tax purposes. This conclusion is contained in the resolution of the Federal Antimonopoly Service of the Volga District dated September 17, 2009 No. A55-17670/2008.

Getting an interest-free loan

By general rule, the loan agreement is compensated: for the use of borrowed funds it is necessary to pay a certain percentage of the loan amount. But if the parties to the loan agreement want the agreement to be interest-free, this must be explicitly stated in the agreement.

Income tax

If the agreement stipulates that the loan is interest-free, then the material benefit received by the borrower from using the interest-free loan does not increase the tax base for income tax. This conclusion follows from the explanations of the Presidium of the Supreme Arbitration Court of the Russian Federation (Resolution No. 3009/04 dated 03.08.2004), as well as letters from regulatory authorities (letters of the Ministry of Finance of Russia dated 04.02.2010 No. 03-03-06/1/224, dated 07.14.2009 No. 03-03 -06/1/465, Federal Tax Service of Russia for Moscow dated September 27, 2011 No. 16-15/093520@).

Payment of interest under a loan agreement

As noted above, the parties should determine the percentage of the loan amount that the borrower will pay to the lender. Let us dwell on the tax consequences arising in connection with the payment of interest. First, let's consider the situation when interest is paid to a legal entity lender.

Tax consequences, if the lender is a legal entity

Income tax: accounting for interest

Expenses in the form of interest are reflected in non-operating expenses(Clause 2, Clause 1, Article 265 of the Tax Code of the Russian Federation). If the borrower uses the cash method, then interest is taken into account in non-operating expenses on the date of their actual payment (clause 3 of Article 273 of the Tax Code of the Russian Federation). If the borrower uses the accrual method, then the amount of accrued interest is taken into account as part of non-operating expenses evenly throughout the entire term of the loan agreement at the end of each month of use of the funds received (clause 8 of Article 272, clause 4 of Article 328 of the Tax Code of the Russian Federation, letter from the Ministry of Finance Russia dated September 25, 2012 No. 03-03-06/1/500).

In this case, the recognition of expenses does not depend on the period of actual payment of interest established in the loan agreement (letters of the Ministry of Finance of Russia dated September 17, 2012 No. 03-03-06/2/108, dated October 21, 2011 No. 03-03-06/1/684) . This means that if the loan agreement stipulates that interest is paid, for example, in a lump sum when the loan is repaid, then in tax accounting, interest expenses are recognized as non-operating expenses evenly throughout the entire term of the loan agreement at the end of each month (resolution of the Federal Antimonopoly Service of the North-West district dated February 18, 2013 in case No. A42-1959/2012).

In addition, when determining the tax consequences for income tax, attention should be paid to the normalization of interest:

in the presence of controlled debt;

if there are obligations on comparable terms;

based on the refinancing rate of the Central Bank of the Russian Federation, increased by a special coefficient.

Let's look at them in more detail.

a) standardization of interest in the presence of controlled debt

Thus, debt is considered controlled if the taxpayer, a Russian organization, has a debt under a debt obligation (clause 2 of Article 269 of the Tax Code of the Russian Federation):

to a foreign organization that directly or indirectly owns more than 20 percent of its authorized capital;

before Russian organization recognized as an affiliate of the above-mentioned foreign organization.

In addition, controlled debt arises if an affiliate and (or) directly a foreign organization acts as a guarantor (guarantor) of the taxpayer.

Provided that the amount of controlled debt is more than three times the amount equity on the last day of the reporting (tax) period, apply following rules rationing.

The maximum amount of interest on controlled debt is calculated on the last day of each reporting (tax) period by dividing the amount of interest accrued by the taxpayer in each reporting (tax) period on controlled debt by the capitalization ratio calculated on the last reporting date of the corresponding reporting (tax) period. This rule is contained in paragraph 3 of paragraph 2 of Article 269 of the Tax Code of the Russian Federation.

The capitalization ratio is determined by dividing the amount of the corresponding outstanding controlled debt by the amount of equity capital corresponding to the share of direct or indirect participation of this foreign organization in the authorized (share) capital (fund) of the taxpayer and dividing the result by three (paragraph 4, paragraph 2, article 269 Tax Code of the Russian Federation).

Interest on controlled debt, calculated according to the rules of paragraph 2 of Article 269 of the Tax Code of the Russian Federation, is included in expenses (clause 3 of Article 269 of the Tax Code of the Russian Federation).

According to the explanations of the regulatory authorities, the amount of interest calculated using the capitalization ratio, taken into account for profit tax purposes, should not exceed the maximum level determined according to the rules of paragraph 1 of Article 269 of the Tax Code of the Russian Federation based on the average level of interest on comparable obligations or from the refinancing rate of the Bank of Russia. Therefore, in tax accounting, only the smaller of these two values ​​can be recognized (letter of the Ministry of Finance of Russia dated July 31, 2012 No. 03-03-06/1/373).

If the equity value is negative or zero, the borrower is not entitled to take interest into account as an expense.

In this case, the accrued interest in full is recognized as excess (letter of the Ministry of Finance of Russia dated May 30, 2011 No. 03-03-06/1/319, Federal Tax Service of Russia for Moscow dated May 20, 2008 No. 20-12/048101).

Set out calculation rules size limit interest is not applied to taxpayers - foreign organizations that operate in Russia through permanent representative offices. Such organizations must recognize interest in the manner prescribed by Article 272 of the Tax Code of the Russian Federation for accounting for non-operating expenses on debt obligations (letter of the Ministry of Finance of Russia dated September 17, 2013 No. 03-08-05/38346).

b) standardization of interest if there are obligations on comparable terms

In the absence of controlled debt, the borrower can normalize interest based on the average interest rate on comparable obligations or based on the refinancing rate of the Central Bank of the Russian Federation, increased by a special coefficient.

When calculating the maximum interest rate, it should be taken into account that:

debt obligations issued on comparable terms are considered debt obligations issued in the same currency for the same terms in comparable amounts, against similar collateral (paragraph 2, clause 1, article 269 of the Tax Code of the Russian Federation);

the average interest level must be determined based on the rates on loans that the lender provided to other companies. For example, for this you can request a corresponding certificate from the lender (letter of the Ministry of Finance of Russia dated November 21, 2011 No. 03-03-06/1/770). It is unlawful to compare the terms of loans received by the borrower. This is due, in particular, to the fact that in the quarter under review the borrower can have only one loan agreement(resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 17, 2012 No. 9898/11, FAS Moscow District dated August 9, 2013 No. A40-30410/12-107-143).

The chosen standardization method, as well as the criteria for comparability of conditions, must be fixed in accounting policy(letter of the Ministry of Finance of Russia dated November 21, 2011 No. 03-03-06/1/770).

According to the regulatory authorities, if there is no applicable method for calculating the maximum level of interest in the accounting policy, the taxpayer is obliged to calculate interest based on the refinancing rate of the Central Bank of the Russian Federation, increased by a special coefficient (letter of the Ministry of Finance of Russia dated June 19, 2009 No. 03-03-06/1/414) .

c) standardization of interest based on the refinancing rate of the Central Bank of the Russian Federation, increased by a special coefficient

If the organization does not have comparable obligations, or it decided to normalize expenses based on the refinancing rate of the Central Bank of the Russian Federation, then in the period from January 1, 2011 to December 31, 2013 inclusive limit value interest on loans received in rubles is equal to the refinancing rate of the Central Bank of the Russian Federation, increased by 1.8 times, and on loans received in foreign currency - the refinancing rate of the Central Bank of the Russian Federation, increased by 0.8 times (clause 1.1 of Article 269 of the Tax Code RF).

If the loan agreement does not provide for the possibility of changing the interest rate during the entire period of validity debt obligation, then the refinancing rate of the Central Bank of the Russian Federation is accepted on the date of raising funds (paragraph 6, clause 1, article 269 of the Tax Code of the Russian Federation).

The date of raising funds should be considered the date of their actual crediting to the borrower’s current account (letter of the Ministry of Finance of Russia dated February 10, 2010 No. 03-03-06/1/60).

If the agreement establishes that the interest rate can be changed, the rate of the Central Bank of the Russian Federation in effect on the date of recognition of expenses in the form of interest is taken into account (paragraph 7, paragraph 1, article 269 of the Tax Code of the Russian Federation, letter of the Ministry of Finance of Russia dated March 17, 2009 No. 03-03 -06/1/154).

Income tax: accounting for differences

Another aspect regarding income tax that a borrower should pay attention to when paying interest on a loan agreement is the accounting for differences. Thus, in the agreement, the loan amount can be expressed in foreign currency, and the payment of interest can be provided both in rubles and in foreign currency. Let's look at how the differences are formed and how the borrower can take them into account.

a) the loan amount is expressed in foreign currency, and interest is paid in rubles

If the borrower uses the accrual method, then when the exchange rate fluctuates, positive or negative differences arise between the interest accrued and paid in rubles on the loan. Positive differences are formed when the foreign currency exchange rate falls at the time of interest payment, negative differences occur when the exchange rate rises.

According to the explanations of the Ministry of Finance of Russia, the differences between the ruble estimate of interest amounts on the date of their accrual and the ruble estimate of interest amounts on the date of their payment are taken into account by the borrower in the generally established manner as part of non-operating income and expenses, respectively (letters dated October 14, 2009 No. 03-03-06/ 1/662, dated 05/15/2009 No. 03-03-06/1/325).

If interest on a loan denominated in foreign currency is repaid on the day it accrues, then the differences in question do not arise.

For a borrower using the cash method, such differences do not arise, since interest is recognized as an expense after its actual payment (clause 3 of Article 273 of the Tax Code of the Russian Federation).

b) the loan amount is denominated in foreign currency and interest is paid in foreign currency

In this case, expenses in the form of interest are converted into rubles (clause 5 of Article 252 of the Tax Code of the Russian Federation, letter of the Ministry of Finance of Russia dated October 21, 2010 No. 03-03-06/1/656).

With the accrual method, recalculation is made at the rate of the Central Bank of the Russian Federation on the date of payment of interest or on the last day of the reporting period (clauses 8, 10 of Article 272 of the Tax Code of the Russian Federation).

Positive exchange rate differences arising during such recalculation are taken into account as part of non-operating income (clause 11 of Article 250 of the Tax Code of the Russian Federation), negative ones - as part of non-operating expenses (clause 5 of clause 1 of Article 265 of the Tax Code of the Russian Federation).

VAT

If the loan was received in cash, then the borrower does not have VAT consequences, since the payment of interest on a loan received in cash is a non-taxable transaction (clause 15, clause 3, article 149 of the Tax Code of the Russian Federation).

As for loans in non-monetary form, due to the fact that when receiving interest on such loans, the lender does not charge the borrower with VAT for payment and, accordingly, does not issue an invoice to the borrower for the amount of interest, the borrower also does not incur tax consequences for VAT.

Now let's stop at tax obligations the borrower when paying interest under a loan agreement, if the loan was received from an individual.

Tax consequences if the lender is an individual

Personal income tax

If interest is paid to the lender - to an individual, then for him they are income subject to personal income tax (clause 1, clause 1, article 208, article 209 of the Tax Code of the Russian Federation). In relation to this income, the borrowing organization is recognized as a tax agent, therefore it is obliged to calculate, withhold and transfer to personal income tax budget at actual payment percent (clauses 1, 2 of Article 226 of the Tax Code of the Russian Federation).

If the lender is a resident, then the tax is withheld at a rate of 13 percent (clause 1 of Article 224 of the Tax Code of the Russian Federation). The 35 percent rate does not apply in this case (letter of the Federal Tax Service of Russia for Moscow dated December 15, 2011 No. 20-14/3/121706@).

Insurance premiums, including contributions for “injury”

Interest accrued under a loan agreement concluded with an individual is not subject to insurance contributions for mandatory pension, medical and social insurance(Part 3, Article 7 Federal Law dated July 24, 2009 No. 212-FZ, letter of the Ministry of Health and Social Development of Russia dated August 12, 2010 No. 2622-19).

Insurance premiums for “injury” in the amount of interest are also not charged, since the individual does not perform any work for the benefit of the insured (Clause 1, Article 5 of the Federal Law of July 24, 1998 No. 125-FZ).

Transfer of collateral to the lender

The agreement can state that the lender is provided with additional guarantees for the fulfillment of obligations, for example, in the form of a pledge. Let's consider what tax consequences arise for the borrower when transferring the collateral.

VAT

When property is transferred to the lender as collateral, there is no transfer of ownership. Therefore, such a transfer is not an implementation. Consequently, regardless of whether the property is transferred or not, the borrower has no obligation to calculate VAT (clause 1 of Article 39, clause 1 of Article 146 of the Tax Code of the Russian Federation).

Income tax

If the property remains with the borrower (not transferred to the lender), then he continues to use it to generate income, therefore there is no reason to exclude it from the depreciable property (clause 3 of Article 256 of the Tax Code of the Russian Federation). The monthly depreciation amounts of this fixed asset can be taken into account in expenses (clause 3, clause 2, article 253, clause 3, article 272 of the Tax Code of the Russian Federation).

If the collateral is transferred to the lender, then the following must be taken into account.

The Tax Code of the Russian Federation does not contain grounds for excluding property pledged as collateral from depreciable fixed assets. Based on this, depreciation accrued on such fixed assets can be taken into account as expenses.

At the same time, property used as means of labor is recognized as a fixed asset (clause 1 of Article 257 of the Tax Code of the Russian Federation).

Since the fixed asset transferred to the mortgagee (i.e., the lender) cannot be used as a means of labor, regulatory authorities may refuse to recognize depreciation expenses for such property.

Property tax

Regardless of whether the property is transferred or not, the ownership of the collateral remains with the borrower. During the period of the pledge, such property continues to be listed on the borrower’s balance sheet as part of fixed assets. Consequently, it is subject to property tax (clause 1 of Article 374 of the Tax Code of the Russian Federation).

We remind you that movable property registered as fixed assets from 01/01/2013 is not recognized as subject to property tax (clause 8, clause 4, article 374 of the Tax Code of the Russian Federation). Therefore, there is no need to pay tax on such property.

Transport tax

The borrower to whom the vehicle is registered is obliged to pay transport tax (Article 357 of the Tax Code of the Russian Federation).

Debt forgiveness

The lender can forgive the borrower both the interest under the agreement and the principal amount of the debt. This will affect the borrower's tax obligations as follows.

Income tax

If interest is forgiven, then the borrower will take their amount into account as part of non-operating income on the date of signing the agreement on debt forgiveness (clause 18 of Article 250 of the Tax Code of the Russian Federation). This conclusion is also true if the lender is the founding organization, authorized capital of which more than 50 percent consists of the borrower's contribution.

If the principal amount of the debt is forgiven, then it is also included in non-operating income (clause 8 of Article 250 of the Tax Code of the Russian Federation, letter of the Ministry of Finance of Russia dated March 6, 2009 No. 03-03-06/1/112).

Such income should be recognized on the date the debt forgiveness agreement is signed. However, please note: if the loan is forgiven by the founding organization, the authorized capital of which consists of more than 50 percent of the borrower’s contribution, then no income arises (clause 11, clause 1, article 251 of the Tax Code of the Russian Federation).

Loan repayment

According to paragraph 1 of Article 810 of the Civil Code of the Russian Federation, the borrower is obliged to return to the lender what he received. sum of money or things within the period specified in the contract.

VAT

When repaying a loan in cash, the borrower does not have any tax consequences for VAT, since this operation is exempt from taxation (clause 15, clause 3, article 149 of the Tax Code of the Russian Federation).

If the loan is repaid in non-monetary form, then it is safer to charge and pay VAT on this amount. According to regulatory authorities, the transfer material assets to the lender is a sale, accordingly, it is subject to VAT (letter of the Ministry of Finance of Russia dated April 29, 2002 No. 04-02-06/1/71, resolution of the Federal Antimonopoly Service of the Ural District dated January 17, 2008 No. F09-11146/07-S2). As a result, the borrower is obliged to calculate and present to the lender VAT on the value of the transferred property.

The moment of determining the tax base is the day the property is returned to the lender (clause 1, clause 1, article 167 of the Tax Code of the Russian Federation). The borrower must be issued an invoice within five days of the loan being repaid. This follows from paragraph 3 of Article 168 of the Tax Code of the Russian Federation.

Income tax

The amount of the repaid loan (regardless of its form) is not an expense taken into account for profit tax purposes (clause 12 of Article 270 of the Tax Code of the Russian Federation). In this case, you should pay attention to situations when:

the loan is denominated in foreign currency, and payments are made in rubles;

the loan is denominated in foreign currency and settlements are made in foreign currency.

Let's look at them in more detail.

a) the loan is denominated in foreign currency, and payments are made in rubles

When the foreign currency exchange rate changes, the amount of the principal debt that is returned in rubles to the lender differs from the amount received. When the exchange rate depreciates, a positive difference is formed, and when the exchange rate rises, a negative difference is formed.

According to the explanations of the regulatory authorities, the resulting difference in itself is not recognized as an amount difference, since for the occurrence of an amount difference prerequisite is the fact of implementation. However, when receiving (repaying) a cash loan, there is no fact of sale. This is stated in letters of the Ministry of Finance of Russia dated December 13, 2011 No. 03-03-06/2/197, dated May 31, 2011 No. 03-03-06/4/57.

At the same time, as the financial department explains, if an amount less than what was received in ruble equivalent is subject to return, then the positive difference is included in the non-operating income of the borrower (letter of the Ministry of Finance of Russia dated May 27, 2013 No. 03-03-06/1/18920 ).

The negative difference, according to officials, should be considered as a fee for using the loan and included in non-operating expenses in the same manner as interest on a debt obligation (clause 1 of Article 269 of the Tax Code of the Russian Federation). If such a difference, together with the amount of interest accrued for using the loan, does not exceed the established standard, then the resulting negative difference can be taken into account as part of non-operating expenses (letter of the Ministry of Finance of Russia dated May 27, 2013 No. 03-03-06/1/18920).

At the same time, according to the Presidium of the Supreme Arbitration Court of the Russian Federation, the amount difference is not recognized as interest on the loan, since interest can only be considered in advance fixed income(Resolution dated November 6, 2012 No. 7423/12). Based on this, a negative amount difference can be taken into account in expenses in the full amount, without applying the restrictions of Article 269 of the Tax Code of the Russian Federation.

In tax accounting, positive and negative differences are included in income and expenses only on the date of repayment of the debt obligation, since until this moment it is impossible to determine the difference (letter of the Ministry of Finance of Russia dated May 27, 2013 No. 03-03-06/1/18920).

The above procedure for accounting for differences applies to an organization using the accrual method. For a borrower using the cash method of recognizing income and expenses, such differences do not arise.

b) the loan is denominated in foreign currency and payments are made in foreign currency

When receiving and repaying a loan in foreign currency, the loan amount is recalculated at the time of loan repayment or the last date of the reporting period (clause 8 of Article 271, clause 10 of Article 272 of the Tax Code of the Russian Federation).

The differences arising in this case are taken into account as follows: a positive difference - in the composition of non-operating income, a negative difference - in the composition of non-operating expenses.

Differences are taken into account on the date of payment of the debt or on the last day of the reporting period, depending on what happened earlier (letters of the Ministry of Finance of Russia dated October 17, 2012 No. 03-03-06/1/556, dated March 16, 2011 No. 03-03-06/ 1/139).

The financial department recommends applying the same procedure for accounting for exchange rate differences to taxpayers using the cash method of recognizing income and expenses (letters of the Ministry of Finance of Russia dated March 14, 2012 No. 03-11-06/1/05, dated April 5, 2010 No. 03-11-06/ 1/10, dated 05/14/2009 No. 03-11-06/2/90).

Personal income tax

The loan amount returned to the individual - the lender - is not his income. Consequently, the borrower does not have the duties of a tax agent to calculate and withhold personal income tax. In addition, you should pay attention to the repayment of loans when the loan itself is denominated in foreign currency, and payments are made in rubles.

So, if on the date of loan repayment the exchange rate has increased, then the amount of funds received by the lender will exceed the amount issued to the borrower.

In this case, the individual lender has income in the form of material benefits, which is subject to personal income tax (letter of the Ministry of Finance of Russia dated March 26, 2010 No. 03-04-06/6-50). Since the borrower organization is a tax agent, this amount must be withhold personal income tax.

At the same time, the Presidium of the Supreme Arbitration Court of the Russian Federation, in Resolution No. 7423/12 dated November 6, 2012, indicated that when repaying a loan amount expressed in foreign currency and recalculating into rubles on the date of repayment, individual lenders do not have an economic benefit, since in fact the borrower returns the loan amount established in the agreement.

Chapter 23 of the Tax Code of the Russian Federation does not contain any provisions allowing such positive differences to be considered in the quality of income.

Repayment of the loan using the collateral

As we noted in previous articles, the purpose of the pledge is to guarantee the lender the opportunity to get back the funds given to the borrower and the interest due, even if the latter, for any reason, was unable to return or pay them on time. In this case, the borrower can sell the pledged property to a third party and use the proceeds to pay off the loan debt.

In addition, when repaying a loan using the collateral, it is possible to immediately transfer the property into the ownership of the lender.

Property tax

After disposal of the pledged property from the borrower’s fixed assets, it is excluded from the tax base for property tax (clause 1 of Article 374 of the Tax Code of the Russian Federation). The residual value of such property is not taken into account when calculating tax, starting from the 1st day of the month following the month of disposal of the property. At the same time, movable property registered as fixed assets on January 1, 2013 is not recognized as subject to property tax (clause 8, clause 4, article 374 of the Tax Code of the Russian Federation). Therefore, there is no need to pay tax on such property.

Transport tax

The borrower stops paying transport tax from the month following the month the vehicle is deregistered (Articles 357, 358, paragraph 3 of Article 362 of the Tax Code of the Russian Federation).

Write-off of a vehicle from the borrower’s balance sheet without deregistering it with the registering government agency does not relieve the borrower from the obligation to pay transport tax. That is, until the vehicle is deregistered with the registration authorities of the State Traffic Safety Inspectorate, the payer transport tax is the formal and not the actual owner of the vehicle (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 15, 2011 No. 12223/10).

As for VAT and income tax, the consequences of these taxes depend on how exactly the loan was repaid using the collateral.

a) the borrower sells the pledged property to a third party and uses the proceeds for repayment

VAT

In case of repayment of the loan debt at the expense of the collateral, this property is sold. This means that the borrower is obliged to calculate VAT (clause 1, clause 1, article 146 of the Tax Code of the Russian Federation). Within five days from the date of shipment of such property, the borrower issues an invoice to the buyer (clause 3 of Article 168 of the Tax Code of the Russian Federation). The borrower uses the funds received from the sale of property to repay the debt under the loan agreement. When repaying a loan in cash, the borrower does not have VAT consequences, since this operation is exempt from taxation (clause 15, clause 3, article 149 of the Tax Code of the Russian Federation).

Income tax

When selling a pledged item to a third party, the borrower reflects the income from such sale in tax accounting. In this case, income from sales may be reduced by the cost of such property ( residual value or the cost of acquisition) and the amount of expenses associated with its implementation (Article 268 of the Tax Code of the Russian Federation).

A borrower using the accrual method recognizes income on the date of sale of property, regardless of the actual receipt of funds (clause 3 of Article 271 of the Tax Code of the Russian Federation). A borrower using the cash method of recognizing income and expenses reflects income on the date of receipt of payment from the buyer (clause 2 of Article 273 of the Tax Code of the Russian Federation).

Funds used to repay debt under a loan agreement are not an expense taken into account for profit tax purposes (clause 12 of Article 270 of the Tax Code of the Russian Federation).

b) if the borrower transfers the pledged property into the ownership of the lender

VAT

In a situation where the pledged property itself is transferred into the ownership of the lender, the borrower is also obliged to calculate VAT (clause 1, clause 1, article 146 of the Tax Code of the Russian Federation). Within five days from the moment the collateral is shipped to the lender, he must issue an invoice to the lender (clause 3 of Article 168 of the Tax Code of the Russian Federation). The date of shipment of the property is the date of the first compilation primary document, issued in the name of the lender (for example, a bill of lading, an act of acceptance and transfer of fixed assets).

Income tax

When a borrower pays off his debt by transferring ownership of the mortgaged property to the lender, the latter is the buyer of the property.

Therefore, the borrower recognizes income from the sale of pledged property in the generally accepted manner.

In this case, a borrower using the cash method reflects income from the sale of property on the date of repayment of the debt under the loan agreement to the lender (clause 2 of Article 273 of the Tax Code of the Russian Federation).

Payment of interest for late loan repayment

According to paragraph 1 of Article 811 of the Civil Code of the Russian Federation, if the loan amount is not repaid established by law or contract terms, the lender may demand payment of interest for late payment. The amount of such interest is calculated in the manner established by paragraph 1 of Article 395 of the Civil Code of the Russian Federation.

VAT

There are no tax consequences for the borrower.

Income tax

Regardless of the form of the loan, the borrower has the right to take into account interest for late repayment of the loan in full as part of non-operating expenses as sanctions for violation of contractual obligations on the basis of subparagraph 13 of paragraph 1 of Article 265 of the Tax Code of the Russian Federation (FAS Resolution PJ dated January 30, 2012 No. A65-20766/2010 ).

If an organization uses the accrual method, then the amount of sanctions is recognized either on the date of their recognition by the borrower, or on the date the court decision enters into legal force (clause 8, clause 7, article 272 of the Tax Code of the Russian Federation). The basis for recognizing non-operating expenses are documents indicating that the borrower agrees to pay sanctions to the lender in full or in a smaller amount based on the terms of the concluded agreement. Such documents include (letter of the Federal Tax Service of Russia for Moscow dated March 18, 2008 No. 20-12/025119):

an agreement providing for the payment of sanctions;

bilateral act;

a letter from the debtor or another document confirming the fact of violation of the obligation, allowing to determine the amount of the amount recognized by the debtor.

At the same time, payment orders for payment of sanctions do not in themselves indicate their recognition by the debtor. A document confirming the debtor’s recognition of the sanction can be the written consent of such a debtor to pay the debt in the specified amount (letter of the Federal Tax Service of Russia dated June 26, 2009 No. 3-2-09/121).

If the borrower uses the cash method, then the costs of paying penalties in the form of interest for late repayment of the loan are taken into account after their actual payment (clause 3 of Article 273 of the Tax Code of the Russian Federation).

In this and two previous articles, we highlighted issues related to the execution of a loan agreement and tax consequences. All information provided can be found in information system 1C:ITS in the “Legal Support” section (see figure).

Rice. 1. Section 1C: ITS, dedicated to the tax consequences of the loan agreement

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

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

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General concepts

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

Tax consequences of issuing an interest-free loan

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

What features does it have?

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

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

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

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

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

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

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

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

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

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

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

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

If he takes the same amount from the bank at the minimum interest rate, then you must pay about 6,000 rubles.

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

Risks of the procedure

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

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

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

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

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

As directed Tax Code The statute of limitations for accounts payable is 3 years. It is counted from the day when it was necessary to repay the loan.

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

Design features

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

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

They do not know what to do to avoid accumulating debts to the federal government. tax service, administrative responsibility.

On this moment There are several ways to avoid personal income tax.

These include:

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

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

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

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

Important aspects

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

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

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

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

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

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

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

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

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

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

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

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

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

Concerning income tax for an interest-free loan, then from this year legal entities are required to pay it every month.

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

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

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

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

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

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

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

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

There are first types of transactions controlled by the Federal Tax Service and uncontrollable.

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

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

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

Resolution of the RF Armed Forces:

Letter from the Federal Tax Service of the Russian Federation:

Letters from the Ministry of Finance:

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

The previous article* discussed the main legal issues that arise during the conclusion and execution of a loan agreement. Depending on the terms of the concluded agreement, various tax consequences are possible for its parties. In this article, 1C:ITS specialists talk in detail about what a lender should pay attention to when concluding a loan agreement.

Providing a loan

Under a loan agreement, property (things or money) is transferred to the borrower, and he undertakes to return what he received in the same amount. In this case, it is necessary to take into account possible tax obligations.

In relation to this tax, the important thing is the form in which the loan is provided. So, if it is issued in cash, then the lender does not have an obligation to pay VAT, since the ownership of the property does not pass to the borrower (clause 15, clause 3, article 149 of the Tax Code of the Russian Federation). In addition, the lender is not obliged to issue an invoice in this case (letter of the Ministry of Finance of Russia dated June 22, 2010 No. 03-07-07/40).

However, if the lender is ready for disputes with the tax authorities, VAT may not be paid when issuing a non-monetary loan. One can justify one’s position by the fact that the transfer of property under a loan agreement is repayable in nature, which follows from Article 807 of the Civil Code of the Russian Federation. Accordingly, when providing a non-monetary loan, the subject of the agreement does not occur, therefore there is no VAT object. This position is confirmed arbitrage practice- Resolution of the Federal Antimonopoly Service of the Moscow District dated April 23, 2008 No. KA-A40/3008-08.

Income tax

Cash or other property transferred under a loan agreement is not recognized as an expense for profit tax purposes (clause 12 of Article 270 of the Tax Code of the Russian Federation). This is stated in paragraph 12 of Article 270 of the Tax Code of the Russian Federation.

Insurance premiums

The payment itself to an individual, including an employee, of funds under a loan agreement is not subject to insurance contributions for compulsory pension, medical and social insurance, as well as contributions for “injuries” (,). However, difficulties may arise if the organization subsequently forgives the debt on a loan issued to an employee (we will consider this situation in more detail below).

Receiving interest under a loan agreement

The lender has the right to receive interest from the borrower on the amount of the loan issued by him, unless otherwise established by agreement of the parties (clause 1 of Article 809 of the Civil Code of the Russian Federation). In relation to this interest, it is worth paying attention to the following tax consequences.

Interest received by the lender for providing a loan in cash is not subject to VAT (clause 15, clause 3, article 149 of the Tax Code of the Russian Federation, letter of the Federal Tax Service of Russia for Moscow dated December 18, 2007 No. 19-11/120883).

In this case, interest is the cost of services for providing a loan in cash, therefore, for the amount of interest, the lender is obliged to issue an invoice with the inscription or stamp “Excluding tax (VAT)”. This opinion was expressed by officials in a letter from the Ministry of Finance of Russia dated June 22, 2010 No. 03-07-07/40.

In addition, if the lender, along with providing loans, carries out transactions subject to VAT, then, based on the provisions of paragraph 4 of Article 149 of the Tax Code of the Russian Federation, he needs to organize separate accounting (letter of the Ministry of Finance of Russia dated November 30, 2011 No. 03-07-07/78, Federal Tax Service of Russia dated 06.11.2009 No. 3-1-11/886@).

For these purposes, to calculate the proportion specified in paragraph 4 of Article 170 of the Tax Code of the Russian Federation, only the amount of funds in the form of interest under the loan agreement should be taken into account, and the amount of the loan itself does not need to be taken into account. Such recommendations are given in the letter of the Ministry of Finance of Russia dated April 2, 2009 No. 03-07-07/27.

Income tax

Regardless of the form of the loan, the lender takes into account interest on the loan as part of non-operating income (clause 6 of Article 250 of the Tax Code of the Russian Federation). Under the cash method, interest is taken into account on the date of its actual receipt (clause 2 of Article 273 of the Tax Code of the Russian Federation). If the lender uses the accrual method, then in the case where the term of the loan agreement falls on more than one reporting period, interest is included in non-operating income at the end of the month of the corresponding reporting period (clause 6 of article 271, clause 4 of article 328 of the Tax Code of the Russian Federation).

According to regulatory authorities, interest on loan agreements, the validity of which falls on more than one reporting period, is taken into account in income evenly at the end of the month of the corresponding reporting period, regardless of the timing and actual payment established in the agreement (letter of the Ministry of Finance of Russia dated September 17, 2012 No. 03-03-06/2/108, dated 06/15/2011 No. 03-03-06/1/345).

At the same time, some courts believe that interest received should be taken into account in income only during the period of its actual receipt (resolutions of the FAS Moscow District dated October 19, 2012 No. A40-28488/12-140-137, FAS West Siberian District dated April 6, 2011 No. A45-8330/2010). Additionally, we will consider the features of accounting for interest for profit tax purposes cash loans

, expressed in foreign currency.

The loan was issued in foreign currency, and interest must be paid in rubles

If the lender uses the accrual method, then when the exchange rate fluctuates, positive or negative differences arise between the interest accrued and the interest received in rubles on the loan. Positive differences are formed when the foreign currency exchange rate increases, negative differences form when the exchange rate decreases. These differences are taken into account in general procedure

: positive - as part of non-operating income (clause 11.1 of article 250 of the Tax Code of the Russian Federation), negative - as part of non-operating expenses (clause 5.1 of clause 1 of article 265 of the Tax Code of the Russian Federation). Such clarifications are given in the letter of the Ministry of Finance of Russia dated May 14, 2005 No. 03-03-01-04/1/256.

For a lender using the cash method, such differences do not arise, since interest is recognized as income after it is actually received (clause 2 of Article 273 of the Tax Code of the Russian Federation).

The amount of income received in foreign currency is recalculated into rubles (clause 3 of Article 248 of the Tax Code of the Russian Federation). With the accrual method, recalculation is made at the rate of the Central Bank of the Russian Federation on the date of payment of interest or on the last day of the reporting period (clauses 6, 8, Article 271 of the Tax Code of the Russian Federation). Differences that arise when the currency exchange rate fluctuates, both positive and negative, are taken into account as non-operating income or non-operating expenses of the lender (clause 11 of article 250, subclause 5 of clause 1 of article 265 of the Tax Code of the Russian Federation).

When applying the cash method, no differences arise, since recalculation is made only on the date of actual receipt of the amounts of interest paid (clause 2 of Article 273 of the Tax Code of the Russian Federation).

Personal income tax

If the borrower is an individual, then situations are possible when the lender-organization will need to fulfill the duties of a tax agent for personal income tax* if the individual receives a material benefit in the form of savings on interest (clause 2 of Article 212 of the Tax Code of the Russian Federation). Such benefit is taxed at personal income tax rate 35 percent and arises if (clause 2 of article 224, clause 1 of clause 1, clause 2 of article 212 of the Tax Code of the Russian Federation):

• the rate calculated on the basis of two-thirds of the Central Bank refinancing rate exceeds the amount of interest specified in the agreement;
• the rate on a loan in foreign currency, calculated at 9 percent per annum, more than the amount, calculated based on the terms of the contract.
• In this case, the tax base is determined as the amount of such excess (clause 1, clause 2, clause 2, article 212 of the Tax Code of the Russian Federation).

Note:
* For information on drawing up a loan agreement, calculating material benefits and personal income tax in the 1C: Salaries and Personnel Management 8 program, read No. 12 (December) of BUKH.1C for 2013.

Note: material benefit does not arise when the loan is issued:

• for new construction or acquisition of a residential building, apartment, room or share(s) in them;
• for the purchase land plots provided for individual housing construction, and land plots on which the purchased residential buildings are located, or shares in them.

In this case, material benefit does not arise if an individual has the right to receive property deduction, which is confirmed by the tax authority (clause 1, clause 1, article 212, article 220 of the Tax Code of the Russian Federation). In addition, if interest on the loan is not paid during the tax period, then income in the form of material benefits subject to personal income tax, does not arise (letter of the Ministry of Finance of Russia dated 02/01/2010 No. 03-04-08/6-18).

The date of actual receipt of income in the form of material benefits is defined as the day the taxpayer pays interest on the borrowed funds received (clause 3, clause 1, article 223 of the Tax Code of the Russian Federation). If the date of payment of interest specified in the loan agreement does not coincide with the actual date of payment of interest by the borrower, the date of receipt of income by an individual is the date of actual payment of interest (letter of the Ministry of Finance of Russia dated February 15, 2012 No. 03-04-06/6-39).

If interest on the loan is not paid by the borrower, but is added to the amount of the principal debt, the dates for receiving income in the form of material benefits will be the dates when interest is added to the amount of the principal debt (letter of the Ministry of Finance of Russia dated October 8, 2010 No. 03-04-06/6-247) .

The tax agent is obliged to transfer the withheld tax amount to the budget no later than the day following the day of personal income tax withholding (paragraph 2, clause 6, article 226 of the Tax Code of the Russian Federation). clause 5 art. 226 of the Tax Code of the Russian Federation). This must be done no later than one month from the end date. tax period(calendar year in which the individual paid the interest)*.

Note:
* For more details, see the accountant’s calendar for the period from January 16, 2013 to February 15, 2014 on page 44.

Insurance premiums

Unlike personal income tax, the material benefit of an individual borrower resulting from savings on interest is not subject to insurance premiums. The fact is that it is not a payment accrued in favor of an employee within the framework of labor or civil law relations, the subject of which is the performance of work or the provision of services (Part 1, Part 3, Article 7 of Federal Law No. 212 of July 24, 2009 -FZ, clause 1, article 5 of the Federal Law of July 24, 1998 No. 125-FZ).

Providing an interest-free loan

As we noted in the previous article, the parties can include in the contract a condition that the borrower does not pay interest for using the loan. In this case, the loan agreement will be considered interest-free. Let us consider what tax consequences arise for the lender in this case if the borrower under the agreement is an individual.

Personal income tax

When issuing an interest-free loan to an individual, the latter has taxable income in the form of material benefits from savings on interest, taxed at a rate of 35 percent (letter of the Ministry of Finance of Russia dated July 25, 2011 No. 03-04-05/6-531, dated May 16, 2011 No. 03- 04-05/6-350, resolution of the Federal Antimonopoly Service of the West Siberian District dated 01.08.2012 No. A27-9497/2011).

The date of receipt of income in the form of material benefits should be considered the corresponding dates of the actual repayment of borrowed funds. Moreover, if the interest-free loan agreement provides for monthly repayment of the loan, income in the form of material benefits will arise on each date of repayment of the borrowed funds, that is, monthly.

If the loan is not repaid in the tax period, no income in the form of material benefits from saving on interest arises in the specified tax period.

Consequently, in this case the lender does not have the duties of a tax agent. This is stated in the letter of the Ministry of Finance of Russia dated 02/01/2010 No. 03-04-08/6-18.

The tax base is the amount of interest calculated on the basis of 2/3 of the refinancing rate of the Central Bank of the Russian Federation in effect on the date of receipt of income (letter of the Ministry of Finance of Russia dated 08/09/2010 No. 03-04-06/6-173).

If the loan is repaid in parts, the tax base is calculated as follows. When repaying the first part of the loan, the tax base is calculated as the amount of interest based on 2/3 of the refinancing rate of the Central Bank of the Russian Federation in effect on the day the loan is repaid and the number of days that have passed since the loan was issued. For subsequent repayment of the loan, interest is calculated based on the number of days that have passed since the repayment of the previous part of the loan.

The tax agent - the lender - must calculate and pay personal income tax on the material benefit from saving on interest. This follows from the provisions of paragraph 2 of paragraph 2 of Article 212 of the Tax Code of the Russian Federation.

If the lender does not have the opportunity to withhold tax, then he should inform the taxpayer about this in writing and tax authority at the place of its registration (clause 5 of Article 226 of the Tax Code of the Russian Federation). This must be done no later than one month from the end of the tax period in which the relevant circumstance arose.

Insurance premiums

When issuing an interest-free loan, the material benefit in the form of savings on interest arising from the borrower - an individual, is not a payment accrued in favor of the employee within the framework of labor or civil law relations, the subject of which is the performance of work or the provision of services.

Consequently, it is not recognized as an object of taxation (Part 1, Part 3 of Article 7 of the Federal Law of July 24, 2009 No. 212-FZ, paragraph 1 of Article 5 of the Federal Law of July 24, 1998 No. 125-FZ, letter from the Ministry of Health and Social Development of Russia dated 05/19/2010 No. 1239-19).

Receiving the collateral

The law allows the parties to the loan agreement to establish additional guarantees for the return of the loan amount to the lender. Very often, to secure such an obligation under a loan agreement, a pledge of property owned by the borrower is used (Articles 334 - 358 of the Civil Code of the Russian Federation). Let us consider the tax consequences for the lender arising in connection with this.

Upon receipt of the pledged item, the lender does not have to pay any VAT payments related to this transaction, since the ownership of such property remains with the borrower.

Income tax

The operation to obtain the collateral does not entail any tax consequences for the lender.

Property tax

The property received by the lender remains the property of the borrower. Therefore, the lender is not a property tax payer.

Transport tax

If a car is received as collateral, the lender is not obliged to pay transport tax if the vehicle is registered in the name of the borrower (Article 357 of the Tax Code of the Russian Federation).

Debt forgiveness

The lender has the right to forgive the borrower both the principal amount of the debt and the debt to pay interest. The following consequences arise in relation to taxes and contributions.

Income tax

If the lender has forgiven the debt to pay interest, then the interest on the loan written off in connection with the termination of the obligation is not considered an expense for profit tax purposes (letter from the Ministry of Finance of Russia).

At the same time, the lender using the accrual method includes in income the accrued interest at the end of each month (clause 6 of Article 250 of the Tax Code of the Russian Federation, clause 6 of Article 271 of the Tax Code of the Russian Federation). As a result, interest accrued on the date of debt forgiveness increases the tax base for income tax.

In turn, the amount of the principal debt that the lender forgave the borrower is not taken into account in expenses for profit tax purposes (letter of the Ministry of Finance of Russia dated December 31, 2008 No. 03-03-06/1/728).

Personal income tax

The amount of the principal debt, as well as the amount of debt in the form of interest on the loan, forgiven to an individual, is subject to personal income tax at a rate of 13 percent. This position of officials is reflected in a letter from the Russian Ministry of Finance.

If the lender does not have the opportunity to withhold tax, then he should inform the taxpayer and the tax authority at his place of registration about this in writing (clause 5 of Article 226 of the Tax Code of the Russian Federation). As we have already noted, this must be done no later than one month from the end of the tax period in which the corresponding circumstance arose.

Please note that when a debt is forgiven, the borrower does not receive income in the form of material benefits from saving on interest for using the loan (letter of the Ministry of Finance of Russia dated April 11, 2012 No. 03-04-06/3-106).

Insurance premiums

With regard to insurance premiums, the situation remains controversial when the debt under a loan agreement is forgiven to an individual employee of an organization.

So, if an employer forgives a borrower employee part of the debt under a loan agreement, then most likely this part of the amount will have to be included in the base for calculating contributions as a payment within the framework of the employment relationship. This is indicated by the inspection authorities (letters from the Ministry of Health and Social Development of Russia dated May 17, 2010 No. 1212-19, dated May 21, 2010 No. 1283-19).

If the lending organization is ready for disputes, then it will be necessary to prove in court that issuing a loan to an employee and terminating obligations to repay it by forgiving the debt occurs outside the framework of the employment relationship (resolution of the Federal Antimonopoly Service of the Volga District dated May 21, 2013 No. A65-18287/2012, dated 08/29/2013 No. A65-18176/2012).

Loan repayment

Note that the chances of a positive outcome in this case are high.

If a loan issued in non-monetary form is repaid, then the transaction of transfer of material assets by the borrower to the lender should be considered an operation of their sale. Accordingly, it is subject to VAT (Resolution of the Federal Antimonopoly Service of the Ural District dated January 17, 2008 No. F09-11146/07-S2).

Income tax

As a result, when repaying the loan in kind, the borrower presents VAT to the lender and issues an invoice. In this case, the lender has the right to deduct the presented VAT in the generally established manner (Articles 171, 172 of the Tax Code of the Russian Federation).

Regardless of the form of the loan, funds or other property received upon its return are not income for the lender (clause 10, clause 1, article 251 of the Tax Code of the Russian Federation).

Let us dwell on the features of accounting for profit tax purposes for the repayment of loans issued in foreign currency.

The loan was issued in foreign currency, but is returned in rubles

As a result, the lender may receive from the borrower either a larger or smaller amount than it lent. Such differences are not cumulative, since they are not related to the sale of goods (work, services) or property rights. Therefore, negative differences cannot be taken into account in expenses on the basis of subclause 5.1 of clause 1 of Article 265 of the Tax Code of the Russian Federation.

But since the list of non-operating expenses is open, negative differences can be taken into account in accordance with subparagraph 20 of paragraph 1 of Article 265 of the Tax Code of the Russian Federation, provided that they meet the requirements of paragraph 1 of Article 252 of the Tax Code of the Russian Federation. Positive differences will be taken into account in income in accordance with paragraph 1 of Article 250 of the Tax Code of the Russian Federation as other non-operating income, norms), negative differences - as part of non-operating expenses (clause 5 of clause 1 of Article 265 of the Tax Code of the Russian Federation).

The courts emphasize that the provisions of Chapter 25 of the Tax Code of the Russian Federation do not prohibit the inclusion in non-operating expenses of negative exchange rate differences that arose during the revaluation of obligations under loan agreements denominated in foreign currency. An example of such a position is the resolution of the Federal Antimonopoly Service of the North-Western District dated January 19, 2010 No. A56-17668/2009.

The financial department recommends applying the same procedure for accounting for exchange rate differences to taxpayers using the cash method of recognizing income and expenses (letter of the Ministry of Finance of Russia dated March 14, 2012 No. 03-11-06/1/05).

Repayment of the loan and payment of interest at the expense of the collateral

If on the day the obligation secured by the pledge is due, fulfillment does not occur or the obligation is performed improperly, then the lender has the right to foreclose on the pledged item (clause 1 of Article 348 of the Civil Code of the Russian Federation).

When the property of the pledged item is transferred to the lender, the borrower is obliged to calculate VAT and issue an invoice (Clause 1, Clause 1, Article 146 of the Tax Code of the Russian Federation, Clause 3, Article 168 of the Tax Code of the Russian Federation). The lender has the right to deduct “input” VAT in the generally established manner.

Income tax

If the collateral became the property of the lender in payment of the principal debt, then the received property is not the income of the lender (clause 10, clause 1, article 251 of the Tax Code of the Russian Federation).

But the property received to pay off interest debt must be reflected as part of non-operating income (clause 6 of Article 250 of the Tax Code of the Russian Federation).

Property tax

The value of the collateral that has become the property of the lender is subject to property tax from the moment it is reflected by the lender in accounting as part of fixed assets (Article 374 of the Tax Code of the Russian Federation).

At the same time, movable property registered as fixed assets on January 1, 2013 is not recognized as subject to property tax (clause 8, clause 4, article 374 of the Tax Code of the Russian Federation).

Transport tax

If the collateral was a car, then the lender’s obligation to pay transport tax appears from the moment of registration vehicle in the traffic police (Article 357.

Income tax

Regardless of the form of the loan, penalties for improper execution liabilities, including interest for late repayment of the loan, are included in non-operating income. This requirement is established in paragraph 3 of Article 250 of the Tax Code of the Russian Federation.

A lender using the accrual method includes penalties in income at the time they are recognized by the debtor or on the date the court decision enters into legal force (clause 4, clause 4, article 271 of the Tax Code of the Russian Federation).

The moment the debtor acknowledges penalties is the date he signs a document agreeing to the penalties. The judges came to this conclusion in the resolution of the Federal Antimonopoly Service of the Volga District dated August 24, 2010 No. A55-38021/2009.

In the absence of a fact indicating that the debtor recognizes the obligation to pay sanctions, expressed in the payment of sanctions or in written confirmation of the recognition of the amount, the lender does not generate income for profit tax purposes (letter of the Ministry of Finance of Russia dated April 3, 2009 No. 03-03-06/2/ 75, dated 07.11.2008 No. 03-03-06/2/152).

Lender who recognizes income cash method, includes penalties in income only after they are actually paid by the borrower (clause 2 of Article 273 of the Tax Code of the Russian Federation).

So, we have looked at what tax consequences the concluded loan agreement will have for the lender. In the next issue we will focus on taxes and fees that will need to be paid to the other party to this agreement - the borrower - depending on the wording provided in the loan agreement.

All information provided can be found in the 1C:ITS information system in the “Legal Support” section.