Personal income tax is withheld when citizens receive most types of income, including from the amounts of the resulting material benefits. This is stated in paragraph 1 of Art. 210 of the Tax Code of the Russian Federation.
Such taxable income includes only those transactions that are listed in Art. 212 of the Tax Code of the Russian Federation:
- savings made by an individual in terms of interest as payment for the use of third-party funds (loans);
- purchase of materials (services) at a cost below market value from related parties;
- purchase valuable papers at reduced prices.
The obligation to withhold personal income tax from material benefits can be assigned both to the individual himself with the subsequent submission of a declaration to him, and to the tax agent - the organization that issued the loan. When providing borrowed funds to its employees, the organization takes on the functions of a tax agent, transferring personal income tax to the budget. In this case, the amount of tax is withheld from the income of the employee himself (but should not exceed 50% of the total amount of income, clause 4 of article 226 of the Tax Code of the Russian Federation).
If there were cases of purchase of securities at prices below market prices, then the tax base calculated as the difference between the average market value of these assets and the actual costs incurred. At the same time, the provisions for determining the market value of data financial instruments fixed in nos. 1-2 tbsp. 305 of the Tax Code of the Russian Federation.
A similar method is also suitable for determining the taxable base when receiving goods (services) from related parties at reduced prices. To identify the market value, the method of comparable market prices is used, that is, a price analysis of an identical product on the market is carried out. If it is impossible to determine average market prices, it is allowed to use other methods, such as analysis of comparable profitability, price determination on further sale, cost method, etc.
The received benefit of an individual can also be called the provision by the employer of a loan at low interest rates, including interest-free. The resulting income of the employee in the form of the amount saved on interest is used for further tax collection. In such cases, it is necessary to establish the moment of the formation of material benefits. What calculation and on what date are recommended by the tax authorities and officials of the Ministry of Finance of Russia, is reflected in the article.
If an employee is issued an interest-free loan for the purchase of housing, personal income tax from material benefits from savings on interest is not always withheld. What kind of situations are these and what document the employee should bring in this case, find out from the materials:
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In some cases, subject to the same seemingly conditions, the grounds for withholding personal income tax there is no material benefit. For example, when using credit funds within a certain interest-free period on the basis of an agreement concluded with banking institutions. Also, there is not always a need for mandatory tax calculation when receiving a loan at low interest rates. Read more about these and other situations that arise when receiving material benefits in the article .
How to calculate material benefit
In some situations, officials give detailed explanations, proposing an algorithm of actions to withhold personal income tax from material benefits. For example, what to do if it is impossible to withhold personal income tax from an employee as a result of receiving material benefits, since he has no other income?
What actions the employer can take in such cases when calculating the tax for their employees, we tell in.
From 01.01.2016 personal income tax from material benefits is considered on the last day of each month of the loan agreement. How to calculate personal income tax on old interest-free loans concluded before 2016, learn from the material .
It must be remembered that material benefits are one of the objects of personal income tax, although not in every case of savings, including when obtaining affordable loans Money, Personal income tax is subject to accrual.
Our constantly updated section contains up-to-date information about innovations tax legislation and will help you perfectly master the methodology for calculating personal income tax.
V Lately the sale of goods to the population on credit became widespread. And few of the buyers suspect that in such a situation he may have an income called material gain. In addition, such a benefit may arise, for example, if an employee of the organization receives a loan, as well as in other situations. In this article, we will look at examples of what material benefit is, when it can appear and what needs to be done in this case.
What is material benefit?
Article 212 of the Tax Code of the Russian Federation the specifics of calculating income received in the form of material benefits have been established. V paragraph 1 the named article lists the cases when it can occur:1) savings on interest for the use of borrowed (credit) funds received from organizations or individual entrepreneurs (except for operations with credit cards during the interest-free period specified in the agreement on the provision credit card);
2) the purchase of goods (works, services) within the framework of a civil law contract from individuals, organizations and individual entrepreneurs who are interdependent with respect to the buyer;
3) purchase of securities at a price below the market price.
Thus, material benefit arises in situations when an individual acquires the right to own something or to dispose of something for more favorable terms than those set for all other buyers or consumers.
It is important not to confuse material benefits with income received in kind. They are taxed at different rates of personal income tax, but we will talk about this in more detail below. Examples of income in kind can be partial or full payment by organizations or individual entrepreneurs for an individual for goods (works, services) or property rights (for example public Utilities, food, rest, training), receipt of goods by an individual or performance of any work in his interests, provision of services free of charge.
Now let's take a look at each of the types of material benefits in detail.
We save on interest
This is one of the most common types of material benefits. According to nn. 1 p. 2 art. 212 Tax Code Savings on interest arise in cases where a loan or credit is provided to an individual, interest on which is less than the minimum established by law. For ruble funds minimum size percent is 3/4 of the refinancing rate set by the Central Bank of Russia. Since December 26, 2005, it has been set at 12%, which means that the minimum size is 9% (12% x 3/4). For foreign currency, the minimum amount is unchanged and is always 9%.
Thus, today, for any funds received by individuals under a loan or credit agreement, the minimum is 9%. If the rate under the contract is less, then the borrower receives income in the form of material benefits.
Example 1.
The organization provided its employee with a loan in the amount of 100,000 rubles. for a period of 1 year with payment of 4% per annum. V in this case the savings are 5% (9 - 4). Income in the form of material benefits is 5,000 rubles. (100,000 rubles x 5%). The personal income tax rate for such material benefits is 35% ( clause 2 of Art. 224 of the Tax Code of the Russian Federation). The tax amount will be equal to RUB 1,750. (5,000 rubles x 35%).
Let's say that the specified loan is provided for 3 months (from January to March), which is 90 calendar days. Then the tax amount will be equal to 432 rubles. (1 750 rubles / 365 days x 90 days).
Now suppose that the contract provides for a monthly loan repayment: 30,000 rubles each. in the first two months and 40,000 rubles. at the last. Interest under the loan agreement is paid on the last day of each month. According to nn. 3 p. 1 art. 223 of the Tax Code of the Russian Federation the date of actual receipt of income in the form of material benefits under loan (credit) agreements is the day of payment of interest on them.
Thus, 100,000 rubles. will be at the disposal of an individual for 31 days (70,000 rubles - 28 days and 40,000 rubles - 31 days). Based on this, the material benefit for January will amount to 424.66 rubles. (100,000 rubles x 5% / 365 days x 31 days), for February - 268.49 rubles. (70,000 rubles x 5% / 365 days x 28 days), for March - 169.86 rubles. (40,000 rubles x 5% / 365 days x 31 days). Total income in the form of material benefits will be 863.01 rubles. The tax must be paid in the amount of 302 rubles. (1263.01 rubles x 35%).
If a loan or loan is taken for the purpose of acquiring a residential building, an apartment or a share (stakes) in them on the territory of the Russian Federation, then personal income tax from material benefits in this case is calculated at a rate of 13% ( clause 2 of Art. 224 of the Tax Code of the Russian Federation).
Example 2.
The organization provided an interest-free loan to its employee for a period of 2 years in the amount of 1,500,000 rubles. to purchase an apartment. The loan was returned after the specified period. It should be borne in mind here that the determination of the tax base for material benefits arising under loan (credit) agreements is carried out at least once a year ( nn. 2 p. 2 art. 212 Tax Code).
Thus, the material benefit will amount to 135,000 rubles. per year (1,500,000 rubles x 9%), personal income tax is 17,550 rubles. for each year (135,000 rubles x 13%). It must be remembered that when buying a home, an individual who is tax resident RF, can apply property tax deduction... Therefore, in such a situation, you may not have to pay tax.
However, if the amount of the targeted loan (loan) exceeds the amount actually spent on the purchase of housing, the overpaid funds will be qualified as not used according to intended purpose... The material benefit from savings on interest on the amounts of the targeted loan (credit), used for other purposes, is calculated using a rate of 35% ( p. 1 of the Letter of the Ministry of Finance of the Russian Federation dated 03.31.05 No. 03-05-01-04 / 78).
In accounting, loans issued by the organization to its employees are reflected in the debit of account 73-1 "Settlements with personnel for other operations", subaccount "Settlements for loans granted". If the borrower is a third-party person, then account 58-3 is used " Financial investments”, Subaccount“ Provided loans ”. Withholding of interest from the employee is carried out according to the debit of account 70 "Payments with personnel for labor" and the credit of account 73-1. Withholding personal income tax at the request of the employee - Debit 70 Credit 68... The operating income of the organization in the form of interest accrued on the loan - Debit 73-1 or 58-3 Credit 91-1.
As we have already said, programs for buying goods on credit have gained particular popularity lately. Usually, the amount of interest on them is at least 9%. At the same time, there are also interest-free credit programs... As a rule, they are provided in cases of purchasing an expensive product, subject to an initial payment of 30% and repayment of the loan within six months or a year.
Example 3.
An individual in January bought a car worth 500,000 rubles. On the day of purchase, they were paid 200,000 rubles, the remaining 300,000 rubles. paid for 30,000 rubles. monthly for 10 months. Thus, for the first month, the material benefit will amount to 2,293.15 rubles. (300,000 rubles x 9% / 365 days x 31 days). For the second - 1,864.11 rubles. (270,000 rubles x 9% / 365 days x 28 days), etc. Eventually total amount income in the form of material benefits will be equal to 12,309.04 rubles, and the tax on it - 4,308.16 rubles. (12 309.04 rubles x 35%).
It should be borne in mind, however, that the inclusion of interest in the price of the product will not affect the amount of income or tax. This is due to the fact that such actions are not reflected in the purchase and sale agreement and the loan agreement. There are also cases when the loan provided by the bank is not interest-free, but the seller pays the interest for the buyer. In this case, income in kind arises.
Exceptions to the rule
Material benefit does not appear in cases of obtaining loans from sources that are not legal entities or individual entrepreneurs, for example from public authorities or local governments. In particular, the Ministry of Finance of the Russian Federation explained that in the event that internally displaced persons receive on a repayable basis an interest-free loan for the purchase of housing, financing is carried out at the expense of federal budget... In this regard, income in the form of material benefits and, therefore, the object of personal income tax does not appear ( Letter of the Ministry of Finance of the Russian Federation dated 09.16.05 No. 03-05-01-03 / 90).
In addition, material benefit does not arise in cases where an individual disposes of credit funds provided under a credit line on an interest-free basis during the interest-free period established by the credit card agreement ( nn. 1 p. 1 of Art. 212 Tax Code). In this case, an important condition is the repayment of the entire amount of debt under the credit line before the last day of the interest-free period ( Letter of the Ministry of Finance of the Russian Federation dated 05.10.05 No. 03-05-01-04 / 286). This rule also applies to the provision of a loan to the holder payment card in case of insufficient or absence of funds in his bank account - overdraft ( Letter of the Ministry of Finance of the Russian Federation dated 10.11.05 No. 03-00-10 / 40).
Accountable funds as a hidden form of loan
Now let's imagine a different situation. An employee of the organization receives 10,000 rubles on the 1st of the report. for a month for the purchase of goods and materials. Three situations are possible here: the employee, after a month, has not spent the accountable amount, spent partially or completely.
The point is that for tax audits inspectors may qualify the submission of the reporting as an attempt to disguise the loan agreement ( Resolution of the FAS DVO dated 12.24.03 No. F03-A51 / 03-2 / 2720). In cases of full expenditure of the accountable amounts, the representatives of the tax service are unlikely to have such questions. If the money is not spent in full, then everything will depend on how large the balance of the refunded amounts is and how often it happens. Situations when the amounts are returned completely unspent are the most controversial, and the inspector's decision may also depend on how often they arise, as well as on the purposes for which the money was issued against the account. For example, if an employee is unable to purchase a rare item that is in high demand, this is a good reason, and the return of the accountable amounts issued for the purchase of office supplies looks completely different.
A similar situation may also arise when issuing funds for an employee's business trip. According to p. 11 of the Procedure cash transactions in RF approved Letter from the Central Bank of Russia dated 04.10.93 No. 18, the issuance of cash against the report for expenses related to business trips is carried out within the limits of the amounts due to business travelers. For example, if, according to the results of a business trip, out of the issued 50,000 rubles. only 10,000 rubles have been spent, then it is necessary, if possible, to substantiate in detail the amount issued to the employee on a business trip with an accounting statement-calculation.
And the last case when it is possible to qualify a subreport as a loan: issuing amounts for the report in order to avoid exceeding the limit of cash in the cash desk of the organization. Money, as a rule, is issued for one day and is returned in full.
In all the situations considered, the organization can protect itself in the following way. First, the amounts reported are not a loan, because according to Art. 807 of the Civil Code of the Russian Federation under the loan agreement, the funds are transferred to the ownership of the borrower. When issuing accountable amounts, the employee has a debt to the employer, which the latter can collect from earnings. Secondly, there is no loan agreement itself, while according to Art. 808 of the Civil Code of the Russian Federation it must be concluded in writing. And, thirdly, the funds received under the loan agreement can be spent by the borrower at his own discretion, and the accountable amounts - exclusively for the purposes specified in the order.
Who pays personal income tax?
What should a person who has income in the form of material gains from savings on interest for the use of borrowed funds do? As previously explained tax office, the amount of such income is determined by the taxpayer independently. In this case, an individual is obliged to submit a tax return.
If borrowed funds received by an individual under a loan agreement concluded with Russian organization- the source of his income, by which it is recognized tax agent, then the borrower, in agreement with this organization, has the right to transfer to it its powers to calculate the tax base and the amount of the subject payment of personal income tax... This can be done on the basis of a notarized power of attorney or a power of attorney equated to a notarized one in accordance with the civil legislation of the Russian Federation. In this case, the organization - the tax agent is recognized as the authorized representative of the taxpayer in relations with tax authorities (Letter of the Federal Tax Service of the Russian Federation dated 12.24.04 No. 04-3-01 / 928).
According to the Ministry of Finance of the Russian Federation, when a taxpayer receives the specified income, an organization (individual entrepreneur) on the basis of Art. 226 of the Tax Code of the Russian Federation recognized as a tax agent regardless of the borrower's appeals to the lender or the presence of notarized powers of attorney ( Letter of the Ministry of Finance of the Russian Federation No. 03-05-01-04 / 78). That is, the person is obliged to calculate, withhold from the taxpayer and pay to the budget the corresponding amount of tax ( letters of the Ministry of Finance of the Russian Federation dated November 14, 2005 No. 03-05-01-04 / 356, 21.11.05 № 03-05-01-04/365 ).
According to paragraph 4 of Art. 226 of the Tax Code of the Russian Federation the tax agent withholds the accrued tax amount from the taxpayer at the expense of any money paid by the tax agent to the taxpayer or on his behalf to third parties. In this case, the withholding tax amount cannot exceed 50% of the payment amount.
Thus, if a loan to an individual was provided, for example, by his own employer, then personal income tax from income in the form of material benefits should be withheld when paying wages. This kind income must be reflected in the 1-NDFL tax card and in the 2-NDFL certificate under the code 2610.
If the lender is not a source of payment of any other income to an individual, then he cannot withhold and transfer personal income tax. According to clause 5 of Art. 226 of the Tax Code of the Russian Federation if it is impossible to withhold the calculated amount of tax from the taxpayer, the tax agent is obliged to notify the tax authority at the place of his registration within one month from the moment such circumstance arises.
In this case, the taxpayer shall independently calculate and pay the personal income tax on the basis of nn. 4 p. 1 of Art. 228 Tax Code in the manner prescribed by this article ( Letter of the Federal Tax Service of the Russian Federation No. 04-3-01 / 928, p. 2 of the Letter of the Ministry of Finance of the Russian Federation dated 12.07.05 No. 03-05-01-04 / 232).
Selling goods to an employee
The next type of material benefit is the sale of goods (works, services) to individuals by organizations and individual entrepreneurs that are interdependent in relation to the buyer ( nn. 2 p. 1 art. 212 Tax Code). Such income appears on the condition of the sale of goods (work, services) at a lower price than the usual one ( clause 3 of Art. 212 Tax Code).
It must be remembered that in our case, interdependence can arise only in the following situations ( Art. 20 of the Tax Code of the Russian Federation): one natural person is subordinate to another according to the official position, persons are in a marriage relationship, relationship of kinship or property, an adoptive parent and an adopted child, as well as a guardian and ward, by a court decision.
It turns out that by selling a product to its employee cheaper, an organization can only be recognized as interdependent by a court. For example, a company sells electronics. It was sold to an employee for 9,000 rubles. a video camera, the price of which according to the price list is 15,000 rubles. The amount of material benefit is 6,000 rubles, personal income tax - 780 rubles. (6,000 rubles x 13%).
If a product (work, service) is sold that the organization does not sell, then the comparison should be based on the price of identical and similar goods ( nn. 6,7 tbsp. 40 of the Tax Code of the Russian Federation). In any case, if the inspectorate decides to charge additional personal income tax from such material benefits, then it is she who will have to prove interdependence in court.
If the employer is an individual entrepreneur, there is a direct subordination of one natural person to another in terms of official position. The employee must independently calculate the material benefit and pay personal income tax or authorize the entrepreneur to do this with a written statement.
Purchase of securities
If the actual expenses of an individual for the purchase of securities are lower than their market price, then such a difference will also be a material benefit ( nn. 3 p. 1, paragraph 4 of Art. 212 Tax Code). In this case, the market value of securities is determined in accordance with the procedure established By the decree of FC Central Bank No. 03-52 / ps, taking into account the limiting border of their price fluctuations - 20% upward or downward. It should be noted that this document deals only with equity securities, that is, traded on an organized market. The legislation does not establish a special procedure for determining the market price of securities that are not traded on it (for example, bills of exchange). Thus, there is no material benefit for this category of securities.
The date of receipt by the taxpayer of income in the form of material benefit is the day of purchase of securities ( nn. 3 p. 1 art. 223 of the Tax Code of the Russian Federation). When calculating the tax base for specified income market value securities, in the opinion of the Ministry of Finance of the Russian Federation, should be determined as of the date of the transaction, since it was on this day that the buyer made a decision to complete it ( Letter of the Ministry of Finance of the Russian Federation dated January 26, 2005 No. 03-05-01-04 / 11). The tax on such material benefits can be paid by both the buyer of the securities and his authorized representative - the organization that sold these securities.
The rules for calculating personal income tax from material benefits on interest-free loans and loans issued to individuals at low interest rates have changed significantly since 2016. Now it is necessary to calculate income in the form of material benefits from savings on interest on loans on the last day of each month (subclause 7, clause 1 of article 223 of the Tax Code of the Russian Federation). For example, a loan was issued on January 15th and repaid on March 23rd. Then you will have to calculate the financial benefit on January 31, February 29 and March 31.
If an organization issued a loan to an individual (for example, to its employee), then it is she who will appear in relation to income in the form of material benefits. Consequently, the organization will have to (Article 226 of the Tax Code of the Russian Federation):
- to calculate monthly income in the form of maturity and personal income tax from it;
- withhold tax from the next cash payments to an individual;
- transfer the withheld tax to the budget;
- at the end of the year, submit a 2-NDFL certificate to an individual.
If cash income is not paid to an individual and there is nothing to withhold tax, then at the end of the year, no later than March 1, you must inform the Federal Tax Service Inspectorate of the impossibility of withholding tax (clause 5 of article 226 of the Tax Code of the Russian Federation).
Interest-free loan: material benefits and personal income tax
Starting from January 2016, the maturity benefit on interest-free loans is calculated according to the formula (subparagraph 1 of clause 1, clause 2 of article 212 of the Tax Code of the Russian Federation):
The number of days of using the loan is calculated:
- in the month when the loan is issued - from the day following the day of issuing the loan to the last day of the month;
- in the month when the loan is repaid - from the first day of the month to the day of repayment of the loan;
- in other months - as a calendar number of days in a month.
Material benefit under an interest-bearing loan agreement: personal income tax
If the loan is issued at interest, but interest rate under the agreement, less than 2/3 of the key rate of the Central Bank, then the maturity is calculated according to the following formula (subparagraph 1 of clause 1, clause 2 of article 212 of the Tax Code of the Russian Federation):
Calculation of personal income tax from material benefits on loans
Personal income tax rate with material benefits on loans is (Article 224 of the Tax Code of the Russian Federation):
- if the individual is a resident - 35%;
- if an individual - - 30%.
You need to withhold tax from the nearest cash income paid to an individual.
To calculate personal income tax from material benefits on a loan, you can use.
Payment of personal income tax from material benefits on a loan
Personal income tax withheld from any income paid to an individual (for example, from salaries or dividends) is transferred to the budget no later than the next day after the payment of income (
From January 1, 2016 to Chapter 23 "Personal Income Tax" Tax Code(hereinafter - the Code) made numerous amendments. In this article, we will talk about the changes related to personal income tax from the amounts of material benefits (Federal Law dated 02.05.2015 No. 113-FZ (hereinafter - Law No. 113-FZ)).
The economic essence of material benefits lies in the exemption of the taxpayer from any costs that he could have incurred, but did not actually incur. According to the Code, an individual gets material benefit in the following cases:
- in the event of savings on interest for the use of borrowed or credit funds received from legal entities or individual entrepreneur (subparagraph 1 of clause 1 of article 212 of the Tax Code of the Russian Federation);
- when purchasing goods (works, services) from individuals, organizations and individual entrepreneurs that are interdependent in relation to the taxpayer (subparagraph 2 of paragraph 1 of article 212 of the Tax Code of the Russian Federation);
- when purchasing securities, financial instruments of forward transactions (subparagraph 3 of clause 1 of article 212 of the Tax Code of the Russian Federation).
Note that until 2016, the types of material benefits not subject to personal income tax were listed only in subparagraph 1 of paragraph 1 of Article 212 of the Code. From February 15, 2016, the material benefits received from the acquisition of securities from a controlled foreign company a taxpayer who is recognized as the controlling person of such a foreign company, as well as a Russian related person of such controlling person. Moreover, in order to obtain an exemption, it is necessary that the income of such a controlled foreign company from the sale of these securities and expenses in the form of the purchase price of securities are excluded from the profit (loss) of this foreign company on the basis of paragraph 10 of Article 309.1 of the Code (the corresponding changes have been made Federal law dated 15.02.2016 No. 32-FZ, entered into force on 15.02.2016 and apply to legal relations arising from 01.01.2015).
There are situations when the taxpayer must independently pay personal income tax from material benefits, for example, if he purchased the goods from an individual who is interdependent in relation to him (clause 1 of article 228 of the Tax Code of the Russian Federation). However, in the general case, the obligation to calculate the material benefit is assigned to the tax agent, that is, the organization or individual entrepreneur, as a result of relations with which the individual has this type of income (clause 1 of article 226 of the Tax Code of the Russian Federation).
A tax agent must not only calculate personal income tax, but also withhold it from the taxpayer, and then transfer it to the budget in a timely manner. In addition, one must not forget to reflect the material benefits in the reporting on personal income tax. Consider the procedure for fulfilling these obligations in 2016.
Calculation of material benefits
Before talking directly about the calculation of the tax, you need to understand at what point such a calculation is made.Previously, the Code did not provide a direct answer to this question. However, the cumulative interpretation of the provisions of Chapter 23 of the Code made it possible to conclude that the calculation date should be determined according to the rules established by Article 223 of the Code. The gap has been closed since 2016. The necessary changes have been made to paragraph 3 of Article 226 of the Code (subparagraph "a" of paragraph 2 of Article 2 of Law No. 113-FZ), which now clearly states: article 223 of the Code ”.
Until 2016, Article 223 of the Code provided for the following procedure for determining the date of actual receipt of income in the form of material benefits (subparagraph 3 of clause 1 of article 223 as amended, in force until 2016):
- when calculating the material benefit from savings on interest - as the day the taxpayer pays interest on the borrowed (credit) funds received;
- when calculating material benefits from transactions between interdependent persons- as the day of purchase of goods (works, services);
- when calculating the material benefit from the purchase of securities, financial instruments of forward transactions - as the day of purchase of securities.
As for saving on interest when receiving borrowed funds, for such material gain, the procedure for determining the date of income generation has changed dramatically. Now such material benefit is determined not at the time of payment of interest, but on the last day of each month during the period for which the borrowed (credit) funds were provided (subclause 7, clause 1 of article 223 of the Tax Code of the Russian Federation; Law No. 113-FZ).
What was the impact of the amendment under consideration? First of all, its introduction into the Code made it possible to reduce budget losses in terms of personal income tax, which is not paid in addition to the material benefits of unscrupulous borrowers. The previous procedure, in fact, made it possible to postpone the obligation to pay tax for an indefinite period: the borrower does not pay interest to the lender, therefore, he does not have any income in the form of material benefit (letter of the Ministry of Finance of Russia dated 01.02.2010 No. 03-04-08 / 6 -eighteen).
In addition, the old version of Article 223 of the Code did not contain provisions governing the procedure for determining the date of receipt of income when concluding an interest-free loan agreement. In this regard, the question of the need to calculate material benefits when concluding such contracts until recently was classified as controversial:
- the official position was that the actual date of receipt of income in the form of material benefits when receiving an interest-free loan should be considered the corresponding dates of the return of borrowed funds by the taxpayer (letters of the Ministry of Finance of Russia dated 10.06.2015 No. 03-04-05 / 33645, dated 15.07.2014 No. 03 -04-06 / 34520, dated 26.03.2013 No. 03-04-05 / 4-282);
- In the author's materials, there was a point of view that income from material benefits with an interest-free loan did not arise at all.
According to the Ministry of Finance of Russia (letters of the Ministry of Finance of Russia dated February 15, 2016 No. 03-04-06 / 9399, dated 02.02.2016 No. 03-04-06 / 4762), new order recognition of the income in question is applied starting from January 1, 2016, regardless of the date of the conclusion of the loan (credit) agreement. That is, if, for example, debt obligations that arose in 2015, and interest on them was not repaid until January 1, 2016, it is necessary to calculate the amount of income in the form of material benefits as of January 31, 2016 for all days of using borrowed funds from the date they were received. If in 2015 interest was partially repaid and taxable income in the form of material benefits was determined in relation to the borrower (for example, last time income was determined on 12/20/2015), then as of January 31, 2016, you need to calculate the amount of income in the form of material benefits received during the period of using borrowed funds, starting from the date of the last determination of income (12/20/2015).
Note that this point of view is controversial. No transitional provisions governing the procedure for determining the date of receipt of income in the form of material benefit from savings on interest when receiving funds under loan agreements, including interest-free ones, concluded before 2016 and in force in 2016, are not established by Law No. 113-FZ. In the part that changes the procedure for recognizing income in the form of material benefits from savings on interest, Law No. 113-FZ, in the author's opinion, has no retroactive effect (clause 2 of article 5 of the Tax Code of the Russian Federation), that is, it does not apply to the previous tax periods... Consequently, with respect to such income, the previous rules should apply: income arises on the date of payment of interest or repayment of borrowed funds.
Since 2016, no changes have been made to the Code directly related to the procedure for calculating material benefits. As before, the tax base for such income is determined according to the rules established in paragraphs 2-4 of Article 212 of the Code.
Take, for example, one of the most common types of material benefits - savings on interest on a loan or credit. Such savings arise if an individual receives borrowed funds at an interest rate that is less than established by law minimum:
- for ruble loans, the minimum interest rate is 2/3 of the refinancing rate of the Central Bank of the Russian Federation in effect on the date of calculation;
- for foreign loans and credits minimum percentage equals 9 (subparagraph 1 of clause 2 of article 212 of the Tax Code of the Russian Federation).
As mentioned above, the very principle of calculating personal income tax from such material benefits remained the same. Nevertheless, an important event took place in 2016, which, among other things, had an impact on the calculation of the material benefit from savings on interest. Since this influence is quite significant, the author considers it necessary to draw the attention of taxpayers and tax agents to it.
The fact is that since January 1, 2016, the Bank of Russia has equated the value of the refinancing rate to the value of the key rate (instruction of the Bank of Russia dated 11.12.2015 No. 3894-U). Note that in the Russian Federation, the key rate since its introduction (September 2013 (information from the Bank of Russia dated September 13, 2013)) has always been higher than the refinancing rate. So, since August 2015, the key rate has been 11 percent per annum (information from the Bank of Russia dated July 31, 2015), while the value of the refinancing rate has not changed since September 2012 and amounted to 8.25 percent per annum (Bank of Russia instruction dated September 13, 2012 No. 2873 -y).
Equating the rates under consideration to each other, in fact, led to an increase in the refinancing rate, which, in turn, entailed an increase in the minimum interest rate, on the basis of which income is calculated in the form of material benefits on ruble loans. If earlier such material benefit arose when issuing borrowed or credit funds at an interest rate below 5.5 percent per annum (2/3 of 8.25%), now the tax must be paid to borrowers whose interest on the loan (loan) is less than 7.3 (2/3 of 11%).
Obviously, in the context of calculating material benefits, such a change is negative, as it leads to an increase in the tax burden on individuals.
On January 1, 2015, the organization issued borrowed funds to the employee in the amount of 1,000,000 rubles at 6% per annum for a period of 1 month.
In 2015, the employee did not have any income in the form of material benefits:
RUB 1,000,000 × (5.5% - 6%) × × 31 days: 365 days = 0 rub.
Now suppose that the same loan on the same terms was issued not in 2015, but in 2016.
Income in the form of material benefits will be:
RUB 1,000,000 × (11% - 6%) × × 31 days: 366 days = RUB 4234 97 kopecks.
Personal income tax from material benefits
The material benefit tax has been calculated, but it is too early to talk about paying it to the budget. Recall that only tax amounts that have been previously withheld from the taxpayer can be transferred to the budget; the payment of personal income tax at the expense of tax agents is not allowed (clause 9 of article 226 of the Tax Code of the Russian Federation). Simply put, personal income tax can be paid to the budget only if the funds for its payment have been previously taken from an individual.It is necessary to withhold the accrued tax amount on the date of the actual payment of income to the taxpayer (clause 4 of article 226 of the Tax Code of the Russian Federation).
Different types of material benefits are subject to personal income tax at different rates. For example, when calculating the material benefit from savings on interest, a rate of 35 percent is used (clause 2 of Art. 224 of the Tax Code of the Russian Federation), and when calculating the benefit from transactions between related parties, a rate of 13 percent (Clause 1 of Art. 224 of the Tax Code of the Russian Federation).
Do not confuse this date with the date of actual receipt of income!
The date of actual receipt of income is the date on which personal income tax is calculated from material benefits. The tax agent cannot physically withhold from the taxpayer any amounts on this date: there is simply nothing to withhold from, because no money is paid to an individual at the time the tax is calculated.
The date of actual payment of income is the date on which the withholding agent pays the taxpayer any funds: wages, vacation pay, money for purchased goods, etc. (letter of the Ministry of Finance of Russia dated 09/07/2015 No. 03-04-06 / 51392) Personal income tax must be withheld from the amounts paid. Please note: the withholding tax amount should not exceed 50 percent of the amount of income paid (paragraph 2, clause 4, article 220 of the Tax Code of the Russian Federation).
It is necessary to transfer the amounts of calculated and withheld tax in 2016 no later than the day following the day the income is paid to the taxpayer (clause 6 of article 226 of the Tax Code of the Russian Federation as amended by Law No. 113-FZ). Earlier deadline for personal income tax transfers to the budget was set as the day of actual receipt of cash in the bank for the payment of income.
If it was not possible to withhold tax, for example, the amount of available income was not enough to fully withhold personal income tax, or the income was not paid to the taxpayer at all, the impossibility of withholding tax must be reported in writing to the IFTS and the taxpayer himself. As before, such a message is submitted in the form 2-NDFL, the heading part of which must contain sign 2 (clause 5 of article 226 of the Tax Code of the Russian Federation; Section II of Appendix No. 2 to the order of the Federal Tax Service of Russia No. ММВ-7- dated 30.10.2015 eleven/ [email protected]).
From January 1, 2016 in new edition Clause 5 of Article 226 of the Code is stated. The new wording present in this norm, together with the fact of cancellation from the same date of paragraph 2 of Article 231 of the Code (paragraph 4 of Article 2 of Law No. 113-FZ), allow us to conclude that it is possible to withhold personal income tax from a taxpayer's income only in the calendar year when these incomes were credited to him. After the end of the year, tax amounts that have not been withheld for any reason cannot be withdrawn from the taxpayer. In this regard, at the moment, the question remains open about the possibility of withholding personal income tax from material benefits accrued to the taxpayer in December (as of 31.12.2015).
Material benefit + is the savings on interest that the borrower received. It shows that the borrower took the money on more favorable terms than in the bank. Such savings is the income from which personal income tax must be paid.
When an entrepreneur who issued loans to individuals needs to withhold personal income tax
When does the borrower receive material benefits?
In cases where the individual entrepreneur issued an interest-free loan or at an interest below 2/3 of the refinancing rate of the Central Bank of the Russian Federation.
Who needs to transfer personal income tax from material benefits to the budget - an entrepreneur or a borrower?
An entrepreneur who issued money to an individual. A businessman becomes a tax agent for personal income tax. Therefore, he needs to withhold tax from the borrower and transfer it to the budget. The personal income tax rate for the benefit is 35%.
How can an individual entrepreneur determine the benefit of savings on interest?
To calculate the material benefit, use the formula:
Loan amount × (2/3 × Refinancing rate + Loan rate) / 365 × Calendar days use of a loan per month
The refinancing rate from this year is equal to the key rate. Therefore, to calculate the benefits, you need to use the key rate - 11%.
Is this formula suitable for both interest-bearing and non-interest bearing loans?
Yes, only if the loan is interest-free, instead of the loan rate, the entrepreneur needs to put 0.
At what point does an individual entrepreneur determine the material benefit and the amount of personal income tax?
In 2016, calculate the material benefit on loans on the last day of each month.
From 2016, the material benefit from savings on interest should be calculated on the last day of each month while the borrower is using the money. Until 2016, the material benefit was calculated on the day of interest payment or when the interest-free loan was returned.
Example
Let's say if an entrepreneur on May 26, 2016 lent an employee 100,000 rubles without interest.
In this case, the first time, determine the benefit on May 31st. In the formula, you need to substitute the loan amount - 100,000 rubles and the loan term - 5 days (from May 27 to May 31).
100,000 ₽ × 2/3 × 11% ÷ 366 days × 5 days
Personal income tax from it - 35.06 ₽:
₽100.18 × 35%
Until the term of the loan expires and the individual does not return the money, the maturity should be determined every month.
For interest-free loans issued in 2015, should we consider material benefits and pay personal income tax?
Yes, the material benefit for using the loan before 2016 was required to be calculated as of January 31, 2016. This is the opinion of the specialists of the Ministry of Finance of Russia.
If the individual entrepreneur has not determined the benefit for 2015 in time, what to do now, in May?
It is necessary to quickly calculate the tax on the material benefits received by the borrower. However, calculate for each month separately, because the size of the benefit depends on the number of days in each month of using the money. Also list the interest for late payment of personal income tax1.
When do you need to withhold and transfer to the budget the tax on material benefits?
Personal income tax, calculated from material benefits, withhold the next payment of money to an individual.
Transfer the tax to the budget no later than the next day.
What if it is impossible to withhold personal income tax?
For example, when the borrower is not an employee of the entrepreneur. If the entrepreneur was unable to withhold personal income tax from the maturity, then report this to the Federal Tax Service. To do this, no later than March 1 of the next year, hand over to the borrower in tax office certificate 2-NDFL with attribute 2. At the same time, a message should be sent to the borrower about the impossibility of withholding tax in any form.
When an entrepreneur who has received loans must pay personal income tax
Let us now consider the reverse situation. The entrepreneur received a loan at low interest or no interest. Does he receive material benefits? It all depends on who the merchant took the money from. If for another entrepreneur or organization, then it arises. If it is an ordinary individual, then the judges believe that in this case there is no benefit.
Why? If an entrepreneur received a loan from an individual, there is no financial benefit and there is no need to pay personal income tax. Article 212 of the Tax Code of the Russian Federation clearly states when the benefit from savings on interest is generated. This happens when the lender is a company or individual entrepreneur. Therefore, if a loan is received from a citizen, then the benefit does not arise. And you don't need to pay personal income tax.
If an entrepreneur switched to a special tax regime and does not pay personal income tax, can a benefit arise?
If an individual entrepreneur applies an imputation or a patent, then the benefit subject to personal income tax does not arise. Provided that the individual entrepreneur used the funds in a business transferred to UTII or PSN. So that the inspectors do not have any questions, we advise you to prescribe the purpose of funds in the loan agreement.
An individual entrepreneur on the simplified tax system may receive a material benefit taxed with personal income tax?
Yes, merchants on the simplified tax system are exempt from personal income tax only for business income. Matvygoda does not apply to them.
And if an entrepreneur has a benefit, then who should transfer personal income tax: individual entrepreneur or the party that issued the loan?
The lender, it is he who is the tax agent for personal income tax. Therefore, the one who issued the money withholds and transfers the tax to the budget.
If the lender was unable to withhold personal income tax from the entrepreneur, then the tax should be paid independently?
Yes. In this case, the tax authorities will send a notification of the payment of personal income tax. The tax that the lender was unable to withhold in 2016 will have to be paid in 2017. The deadline is December 1, 2017.
