The loan agreement with interest. A loan agreement between legal entities - the procedure for the preparation and assurance of an interest-free or percentage minimum rate on the percentage of the loan

Publication date: 2017-11-29
Heading:

Money can work for you. Either you invest them in your own business, or give it to growth. If you are closer to the second option, this article will help to deal with how interest is accrued under the loan agreement.

Immediately make a reservation that we are talking about paying for money, and not about the pencils that fulfill the function of sanction for violation of the obligation.

Loan with percent and without

1. if this is directly indicated in the contract or
2. if you don't write anything about interest in the contract, but at the same time:
   • the agreement was concluded between citizens worth not more than fifty minimumts (no more than 5,000 rubles) and is not associated with the implementation of entrepreneurial activities at least one of the parties; Pay attention: for contracts that will be concluded after June 1, 2018, the specified threshold will be upgraded to 100,000 rubles, and the exception for entrepreneurs is removed;
   • under the contract, the borrower is transferred not to money, but other things defined by generic signs.

In all other cases, the loan agreement will be percentage.

Percentage size

The percentage can be installed in the contract (a receipt issued to confirm the receipt of funds).

Today in the Civil Code of the Russian Federation is not specified, from which to proceed when the rate is prescribed. But from June 1, 2018 In Article 809 of the Civil Code of the Russian Federation, an explanation will appear that interest percentage can be set:

1. using the rate in percent per annum in the form of a fixed value,
2. with the application of the rate in percentage per annum, the amount of which may vary depending on the conditions provided by the contract provided, including depending on the change in the variable value,
3. in other way, allowing to determine the proper percentage at the time of their payment.

If the contract does not determine the amount of interest and at the same time the loan will not be subject to the above-mentioned situations when the loan is issued under zero percent, then the interest rate will be equal to the key bid rate of the Bank of Russia. At the same time, the rate is taken, acting on the day of payment by the borrower of the amount of debt or its respective part. To contracts concluded after June 1, 2018The rates acting at appropriate periods will be applied.

The difference in these two approaches is as follows. Upon currently, the rules are relevant if interest is accumulated at the key rate after the offensive period of the loan is used, the rate acting at the time of the presentation of the requirement is used. Applying future amendments, it will be necessary to use a key rate, taking into account all its changes in the loan period.

Payment procedure interest

Such an order can be provided in the contract. If this is not done, then by default interest should be paid monthly before the return day of the loan inclusive.

Often, when the percentage of the percentage of the percentage is not specified, we are talking about their payment only when the permental is coming to return the principal debt. This is normal.

In addition, the law provides that in case of early repayment of debt, interest accrued at the return date of the loan is also subject to payment.

Reduced contract percentage

To contracts that will be concluded after June 1, 2018A new norm will be applied - paragraph 5 of Article 809 of the Civil Code of the Russian Federation. Attention: Earlier contracts below the above is not applicable.

Now the court will be able to reduce the interest rate established in the loan agreement, issued between citizens or between a citizen-borrower and a legal entity that does not carry out professional activities for the provision of consumer loans.

The court will do this if he recognizes that the interest rate is two or more times higher than the interests commonly charged in such cases and therefore is an overly burdensome for the debtor. Such extensive interest may be reduced to the amount of interest, usually charged under comparable circumstances. What to understand under such "usually charged interest" is not yet clearly, the answer to this question should be given a judicial practice.

It is important to take into account that in relation to the loan obtained by a citizen in an organization that carries microfinance, the new rule does not work. But it's a pity, because it is in this area that you can observe the greatest abuses with cheating percent.

Recall also that along with a decrease in interest for the use of a borrower, the borrower will still be able to claim a decrease in the penalty.

If you have a need to recover the debt under the loan agreement or if such a requirement is filed to you, without qualifying assistance to the debts not to do. Lawyer Vladimir Chikin is ready to help, the most fully defending your interests. Write on or call by phone + 7 499 390 76 96.

One of the effective ways to attract funds for business development is a loan agreement. Between the two organizations, such a document is made up much faster than bank loan and has an advantage - along with money, the loan object can also receive a commodity expression. The borrower can get from the lender organization several cement cars, fasteners, fuel and lubricants and other goods needed to him for current activities.

What is a loan agreement between legal entities

Such a form of legal relations between enterprises provides an agreement in which one of the parties transfers, and the other - takes the ownership of money or goods. The loan agreement between the legal entities additionally implies that:

• Upon the expiration of the established period, the borrower must return the identical amount of funds or values \u200b\u200b(as many bricks, concrete blocks, etc.).
• Such a service may be paid as a percentage. It is accrued in the same units (that is, money or a specific product), which issued a loan.

Conditions of imprisonment

Legal requirements for issuing a loan between two organizations have their own characteristics that need to be considered when drawing up official documents. It is not necessary to assign an agreement in the notarization office, but this can be done at the request of one of the parties. The legislation states the mandatory written form of the contract. If it is not issued, and the money (or commodity values) is transferred to the borrower, the tax authorities will consider it unreasonable enrichment. Correctly compiled document should:

• Include details of the parties.
• Comply with the legislative standards and requirements, be a multifunctional document providing for all the features of the transaction.
• To avoid disputes, directly contain an indication of the relevance of the transaction - it is necessary or no payment in the form of interest for the service provided.

The moment of entry into force of the contract

The issuance and production of the loan between the legal entities has an important feature that distinguishes it from bank loans. The agreement comes into force only at the time of delivery of money or the goods from the borrower and is valid during the specified period. Such a document can be made in advance in the signatures of the parties. If for some reason the lender does not transmit funds or values, then the Agreement is considered not to be entered into force.

Regulatory legal regulation

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

• shape of the loan agreement;
• responsibilities of the borrower;
• calculus interest;
• challenging baseline conditions;
• the consequences of non-fulfillment of obligations.

How to make a loan agreement between legal entities

In accordance with the legislation, there are special requirements for documenting such a transaction. The agreement must be written. The content of this document provides special requirements, in the absence of at least one of these items, it may be invalid:

• The amount of lending (is given in numbers and in words).
• The return period of the received funds (if this item is missing, then by default, the loan must be returned in 30 days).
• Interest rate for use (it can be zero with a free loan).
• The order of repayment (partially or completely, is it possible to pay ahead of schedule).
• Special conditions for issuing (availability of collateral, guarantors, etc.).
• The responsibility of the borrower (for example, the size of the penalty).
• Details of the Parties to the Treaty.
• The date (at the same time, the Agreement enters into force on the transfer of funds).
• Signatures of directors of both companies.

Subject contract

In accordance with applicable law there are several types of contracts between the legal entities. The most common are:

• Cash loan. With this service, one organization transmits the other for temporary use of a pre-agreed amount of money. As a rule, this service implies payment - the remuneration of the lender in the form of interest from the amount issued, which is necessarily negotiated in the document. But the situation is also possible when the interest-free loan agreement between legal entities is. This option of designing a transaction along with a visible financial benefit brings more and special issues of tax payments and increased attention of controls.
• Commercial loan. This kind of loan implies that one person receives from the other not funds, but material objects and the mutual settlement also produces in them (for example, a construction organization receives 10,000 concrete blocks from a partner, and after 2 months, by agreement, it returns 10,100 units of the same Products).
• Jam trench. A feature of this type of loan is that a certain agreement is issued not at the same time, and parts as needed, and the borrower saves interest. In essence, this service is identical to several issued loans, but implies a simpler execution, because the agreement here only concludes.

Rights and obligations of the parties

Attentive to the study of the profile articles of the Civil Code of the Russian Federation before the loan agreement between legal entities will be signed, will relieve the lender and the defendant from unpleasant surprises. One of the most common mistakes is the opinion that if the lending rate is not documented, the loan obtained is interest-free.

By law, everything is completely wrong. Article 809 of the Civil Code of the Russian Federation says that if the agreement does not contain instructions on the actual interest, they are equal to the refinancing rate of the Central Bank of Russia at the time of debt pay. Payment of lending services in this amount (for example, for April 2018, the specified value is 7.25%) will not always be comfortable to the borrower. It will be much better to indicate in advance in the agreement the amount of the rate, or clearly designate that the loan is interest-free.

Responsibility of side

The loan agreement concluded between the legal entities must necessarily include a description of the sanctions that apply to the creditor in violation of the duty repayment time. Depending on the terms of the transaction, the amount may be returned:

• fully;
• in parts;
• with the initial payment of interest every month or quarter.

The size of the fine depends on the time delay time. For the borrower, it is beneficial for the calculation of the penalty not to the entire amount of lending, but only on the unpaid / delayed part. The specificity of such lending is that the conditions here are not so severe, as under bank lending, and often penalties are not applied if the delay:

• has a short time (several days);
• it is one-time;
• determined by a good reason, and the lender has no complaints.

Fors major circumstances and dispute resolution

Many borrowers believe that such an item is necessary for the contract, because it once again protects their rights if the circumstances of force majeure (natural disasters, social disturbances, etc.). But enough of the usual reference to Article 401 of the Civil Code of the Russian Federation, where force majeure circumstances and the responsibility of the parties to the transaction are considered. Wherein:

• In the presence of emergency and unpredictable circumstances, which are no interference to fulfill obligations, the Party not fulfilled the obligation is considered innocent.
• The specified article of the Civil Code of the Russian Federation specifically emphasizes that the lack of money from the debtor cannot be qualified as a force majeure.
• The agreement may provide for the guilt of the borrower in all cases of violations in debt payment (without any mitigating circumstances), but this provision can be easily challenged in the arbitration court.

Termination of the contract

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

• lateness with the timing of monthly contributions on schedule;
• refusal of interest payments;
• change target conditions, etc.

Classification

According to Chapter 42 of the Civil Code of the Russian Federation, loans between legal entities can be divided into several species. The classification takes into account different signs (the presence / lack of interest, the freedom of the borrower in the use of funds, etc.), so the same agreement can simultaneously relate to several species. The table shows the classification according to the legislative standards:

The contract of interest-free loan between legal entities

The features of the design of this document are based on Article 809 of the Civil Code of the Russian Federation. At the same time, the contract is initially interest, if:

• the subject of the loan is things;
• the amount of lending does not exceed 50 minimum wages (minimum wage);
• receiving funds is not related to commercial activities.

For the borrower will be convenient mention in the agreement of the interest-free nature of the provision of services. Otherwise, the lender remains the opportunity to demand the payment of interest at the refinancing rate of the Central Bank of the Russian Federation, which is why the debtor should think about the maximum security and prepare evidence of the design of the transaction. The limits do not exist for such a service (except that cash can be transferred to no exceeding 100,000 rubles.

If the amount of interest-free lending is equal to or exceeds 600,000 rubles, then, according to legislation, such transactions are subject to compulsory state control. This is done in order to prevent the legalization of income obtained by criminal, anti-corruption and terrorism. One of the parties to the Treaty should report a transaction to the Federal Service for Financial Monitoring. It is important that the permanent issuance / obtaining interest-free loans implies a thorough state control regardless of the actual amount of lending.

Interest loan agreement

In most situations, the transfer of money or commodity values \u200b\u200bto the debt implies remuneration. The interest loan agreement between legal entities implies payment of the service provided in a predetermined amount (the default is the refinancing rate of the Central Bank of the Russian Federation). This implies an increase in the amount of debt per fee. Accrual interest is in the same means / values \u200b\u200bas the loan issued (for example, cement bags or US dollars).

Money loan between legal entities

This form of contractual relationship implies issuance for a certain period of financial resources. The most common option is to charge the remuneration for this service in the form of accruals at a pre-agreed rate, but an interest-free loan is possible. The magnitude of the percentage may not be specified (in this case, the borrower may require payments to the size of the refinancing rate of the Central Bank). In order to avoid misunderstandings, the Parties are better to clearly prescribe in the agreement / lack of remuneration for the service.

Trade loan agreement

An important condition for such a form of a contract between legal entities is that the means of lending is not money, but material values \u200b\u200b(construction equipment, parts, etc.). It is significant that the goods are transferred to the property of the borrower, and on the occurrence of the agreed period, it must provide the creditor to identical objects (that is, the temporary use of items is excluded). Depending on the terms of the agreement, the debt refund is carried out in the same quantity or in an increased amount (with the addition of interest remuneration).

Tractor Trank

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

An option for this service will receive several loans as needed, but it is inconvenient due to the fact that every time you need to conclude a new contract. With a loaf of tranches, the procedure for its signing is carried out only once, and each new amount is issued as an additional agreement. The rest of the agreement has the same composition as for other types of loans between the individuals.

Tax Features

The loan agreement between legal entities has nuances in the design of fiscal payments for each of the parties - these issues are governed by the Tax Code of the Russian Federation (Tax Code of the Russian Federation). According to Article 146 of this document, the funds provided in the form of a loan are not subject to fiscal payments. At the same time, the situation is common when the employees of the Federal Tax Service (FTS) see the profit (the so-called non-realization revenue) in the contract of interest-free loan due to unpaid interest, demanding payments from savings.

In practice, the borrower can oppose this requirement to the wording from Article 41 of the Tax Code of the Russian Federation, which states that the income is material benefit. Install it in the event of savings, with an indefinite interest rate problematic, so the recipient of the loan is exempt from income tax. In controversial situations, the question should be challenged in court. With a paid loan agreement, the amount of interest on the Tax Code of the Russian Federation is considered a service fee (refers to expenses in the preparation of reporting) and also not subject to fiscal payments.

When lending in cash, under Article 149 of the Tax Code of the Russian Federation, the lender is exempt from value added tax (VAT). If the loan is issued in a commodity / real form, the payment of VAT is required (it should be given in the invoice). Obtaining a lender of interest from the loan issued implies mandatory attribution to the category of income with the payment of income on the law.

The order of repayment and payment of interest

A properly compiled loan agreement between legal entities should contain a section where it says how the borrower will pay. The most common is the option when the entire amount is paid into a predetermined interval, and accrued interest is added to it. But there may be other schemes, for example, the agreement does not establish a tough return period, and the lender organization needs to claim the debt if necessary. As a general rule, the debt and this case should be repaid within 30 days.

Term of the loan agreement

This period is necessarily negotiated in the document regulating the financial relations of the parties, and is very important in the event of economic disputes on the return of debt. It must be borne in mind that the term of the contract is counted not from the day of its signing, but from the moment when the lender will hand over the borrower of the required amount or a specified number of goods. The validity of this document is completed by the end of payments received by the loan. The creditor should be known that the limitation period for such agreements may be no more than 3 years.

Under the loan agreement, the lender transfers funds to the borrower or other things, and the borrower undertakes to return the same amount of money or things in the same quantity (paragraph 1st. 807 of the Civil Code of the Russian Federation). At the same time, the law does not limit the circle of persons who speakers as borrowers or lenders, respectively, a legal entity has the right to issue loans to another legal entity.

In accordance with paragraph 1 of Art. 49 of the Civil Code of the Russian Federation Commercial organizations, with the exception of unitary enterprises and other types of organizations envisaged by law, may have civil rights and carry civil duties necessary for any activities not prohibited by law.

Thus, civil law does not contain a ban on the conclusion of loan agreements between organizations. The loan conditions are determined by the norms of the Civil Code of the Civil Code and the content of the contract concluded by the parties.

In addition, based on the content of Art. 809 of the Civil Code of the Russian Federation, the company has the right to establish a percentage rate for the use of money.

When making a percentage loan, the company itself determines the amount of interest. In the absence of directly amount of interest and, provided that the parties launched a percentage agreement, interest on a legal entity loan is established on the basis of the banking interest rate (refinancing rate) on the day of payment of the borrower of the debt amount or its respective part. The contract may be established the lack of obligations to pay interest. Thus, civil legislation does not establish direct prohibitions for registration and interest-free loans between legal entities.

Let us dwell on the issue of taxation of such a transaction, since this is a very important aspect and companies need to be posted by this legal information.

According to tax legal relations, it turns out that the company-lender makes a profit in the form of interest, issuing another interest in the interest loan. This income increases the taxable base for the payment of income tax. The company-borrower, on the contrary, reduces the taxable base for the amount of interest paid.

It is important to remember that in case of establishment in the interest rate agreement, which does not match the values \u200b\u200bspecified in Art. 269 \u200b\u200bof the Tax Code of the Russian Federation, the Party that has not received income by reducing the interest rate, the tax authority may be charged for income tax. And in the event of an increase in the interest rate compared with the values \u200b\u200bspecified in Art. 269 \u200b\u200bof the Tax Code of the Russian Federation, the tax authority for the purpose of accrual of income tax may not recognize the amount of the amount obtained in terms of such exceeds.

In addition, if the loan agreement has signs of a controlled transaction (Article 105.14 of the Tax Code of the Russian Federation), then the tax authority needs to send a corresponding notification indicating the amount of accrued interest according to accounting data.

If there is a condition in a loan agreement on interest payments, such interest is recognized as non-deactive income (clause 6 of Art. 250 Tax Code of the Russian Federation), and loans - debt obligations (paragraph 1 of Art. 269 of the Tax Code of the Russian Federation). These provisions are taken into account for income tax purposes. Thus, the basis for accrualing in the tax accounting of non-dealer income under the loan agreement is the current debt obligation, the terms of which are provided for payment of interest. In accordance with paragraph 4 of Art. 328 of the Tax Code of the Russian Federation Interests obtained (to be obtained) by the taxpayer for providing funds to use funds are taken into account as part of income (expenses) to be included in the tax base, on the basis of an extracting for the cashpayer's cash flow movement, unless otherwise provided by this article .

Since interest-free loan interest is paid, then the norm of paragraph 6 of Art. The 250 Tax Code of the Russian Federation is not subject to use, since there is no income to be taxed (interest on the current debt obligation). This legal position should be used in the presentation of the requirements for increasing income tax authorities (which often occurs in the practice of tax authorities during field checks). When concluding loan agreements, the parties are entitled (including by virtue of the principle of freedom of contractual relations - Art. 421 of the Civil Code of the Russian Federation), how to establish payment of interest, and not to establish (the main thing, clearly and unequivocally indicate this in the text of the loan agreement).

It should be noted that, in the sense of the legal position of the Constitutional Court of the Russian Federation (RESOLUTION of 24.02.2004 No. 3-P), no tax nor judicial control is intended to verify the economic feasibility of decisions taken by entities of entrepreneurial activities, which in the field of business have independence and broad Discretion, since, due to the risk nature of such activities, there are objective limits in the possibilities of relevant state bodies to identify the presence of business miscalculations in it.

In accordance with the definition of the Constitutional Court of the Russian Federation of 04.06.2007 No. 320-O-p Tax legislation does not use the concept of economic feasibility and does not regulate the procedure and conditions for conducting financial and economic activities. Consequently, the obtained income cannot be assessed from the point of view of their feasibility, rationality, efficiency or result. In other words, the tax authority should not require organizations to ensure that interest for the use of borrowed funds should be established in the loan treaty.

Now it is impossible to check the price matters in the framework of the market or desk check. Such a ban is set to para. 3 p. 1 Art. 105.17 of the Tax Code of the Russian Federation.

Checking transactions between interdependent persons is carried out within the framework of independent tax audit by the Federal Tax Service of Russia at the place of its location (Article 105.17 of the Tax Code of the Russian Federation).

Nevertheless, in practice, there are often cases when the tax authorities within the framework of the field inspection are detached income tax on interest-free loans. In this connection, the taxpayers can often be able to defend only in court (for example, decuses of the Fifteenth Arbitration Court of Appeal dated April 23, 2017 N 15AAP-13555/2016, 15AAP-14101/2016; The Third Arbitration Court of Appeal dated July 8, 2016 in case number A74 -4459/2015; The Thirteenth Arbitration Court of Appeal dated 08/23/2016 N 13AP-13581/2016, 13AP-13582/2016).

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One legal entity plans to issue a lending to another legal entity under 1% per annum. All sides of the relationship are residents of the Russian Federation and apply the general regime of taxation. Subsidiaries are agricultural producers applying a tax rate on the income tax of 0% on the basis of paragraph 1.3 of Art. 284 Tax Code of the Russian Federation.
Loans are provided in rubles. Parties to contracts are not payers of NPPI, are not residents (participants) of a special or free economic zone, as well as participants in regional investment projects. The parties to the loan contracts are not parties to one consolidated group of taxpayers formed in accordance with the Tax Code of the Russian Federation.
Maybe one legal entity is issued to another legal entity under 1% per annum if legal entities are not interdependent persons, and in case of interdependence of legal entities (one of them is the founder (participant, shareholder) of another with 100 percent participation)? What are the tax risks in this case?

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Tax consequences of interest-free loans

Company info KSK Group

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With the adoption of the Tax Code of the Russian Federation, which contained Art. 40, which regulated the taxation between interdependent persons, many were incomprehensible, whether this article applies to the situation on the issuance of interest-free loans.

In this regard, the question was reflected in judicial practice. In the Decree of the Presidium of the Russian Federation of August 03 of August 2004, No. 3009/04 it was stated that if the organization received funds to include under low interest or at all without interest (interest-free loan), then no income taxable income on it does not. Following the Russian Federation, the relevant explanations appeared in the letters of the Ministry of Finance of Russia (the letter of the Ministry of Finance of Russia dated April 2, 2008 No. 03-03-06 / 1/245, the letter of the Ministry of Finance of Russia dated July 17, 2008 No. 03-03-06 / 1 / 415, the letter of the Ministry of Finance of Russia dated August 29, 2011 No. 07-02-06 / 161).

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

In addition, no income to be taxed does not arise from the organization that issued an interest-free loan. This conclusion was confirmed by the arbitration practice (Resolution of the FAS of the Volga District of April 23, 2010 in case No. A72-15093 / 2009, the Resolution of the Moscow District of July 28, 2010 No. Ka-A40 / 7751-10). The Ministry of Finance of Russia also agreed with this opinion (a letter of the Ministry of Finance of Russia of August 11, 2011 No. 03-03-06 / 2/12).

After making changes to the Tax Code of the Russian Federation, in particular, entry into force on January 1, 2012 of section V.1. "Interdependent faces. General provisions on prices and taxation. Tax control due to transactions between interdependent persons. The pricing agreement ", the tax authorities immediately clarified that, since in the Tax Code of the Russian Federation, there are now transactions, and not about the price of goods / work / services, as it was in Art. The 40 Tax Code of the Russian Federation (and the loan agreement is definitely relates to transactions), the provisions of the said chapter apply to loan agreements.

On the need to apply paragraph 1 of Art. 105.3 of the Tax Code of the Russian Federation to contracts of the interest-free loan of the Ministry of Finance repeatedly indicated (the letter of the Ministry of Finance of Russia of October 2, 2013 No. 03-01-18 / 40821, the letter of the Ministry of Finance of Russia of August 13, 2013 No. 03-01-18 / 32745). According to government agencies, the revenues of the lender on transactions for the provision of an interest-free loan between interdependent persons are determined based on the amount of interest that would be obtained by the lender in the event of a transaction between non-interdependent persons in comparable to the analyzed transaction and (or) financial conditions.

In addition, from January 1, 2015, Art. 269 \u200b\u200bof the Tax Code of the Russian Federation set out in a new edition (as amended by the Federal Law of December 28, 2013 No. 420-FZ "On Amendments to Article 27.5-3 of the Federal Law" On the Securities Market "and part of the first and second Tax Code of the Russian Federation" ). According to para. 3 p. 1 Art. 269 \u200b\u200bof the Tax Code of the Russian Federation, on debt obligations of any kind resulting from transactions recognized in accordance with the Tax Code of the Russian Federation with controlled transactions, income (consumption) recognized the percentage calculated on the basis of the actual rate, taking into account the provisions of Section. V.1 of the Tax Code of the Russian Federation, unless otherwise established by Art. 269 \u200b\u200bNK RF.

For a debt obligation, which arose as a result of a transaction recognized in accordance with the Tax Code of the Russian Federation, the taxpayer is entitled to recognize the income percentage calculated on the basis of the actual rate on such debt obligations if this rate exceeds the minimum value of the limit range interval established by paragraph 1.2 of Art. 269 \u200b\u200bof the Tax Code of the Russian Federation (paragraph 1.1 of Art. 269 of the Tax Code of the Russian Federation in the editors of the Federal Law of March 8, 2015 No. 32-FZ "On Amendments to Part Two of the Tax Code of the Russian Federation", the emails of the Ministry of Finance of Russia dated April 06, 2015 No. 03 -01-18 / 19113, dated March 27, 2015 No. 03-03-06 / 2/17141).

This fully applies to the loan treaties. In 2015, tax disputes on tax returns under loan agreements were emerged in the production of arbitration courts, which are not subject to the discharge of controlled transactions.

For example, in the decision of the Eleventh Arbitration Court of Appeal dated September 16, 2015 in case No. A55-6976 / 2015, the situation was considered when the organization was issued an interest-free loan, and the tax authority detached a preliminary interest rate. At the same time, despite the fact that the prisoners were not controlled that the tax authority is not denied, the Interdistrict IFSS of Russia on the largest taxpayers in the Samara region believed that by any tax authorities of the Russian Federation Article 105.3 of the Tax Code of the Russian Federation the right to verify the compliance of market prices on any transactions between interdependent persons. The transactions under consideration were as intended to "create conditions for the emergence of unreasonable tax gain", which is the basis for the application of paragraph 3 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 53 of October 12, 2006. Instead of providing a loan of the lender, according to the tax authority, a higher income could get From deposit cash on a deposit in a bank.

To assess the "market" level of interest rates, the tax authority adopted the information provided by the International Information Group Interfax (Spark), according to which in 2012 loans in rubles for a period of one year to three years were provided to commercial organizations at a rate of 12.58 % up to 13.89%. As a result of the contested decision, the tax was made, based on the intended income, which could be obtained when placing funds on the deposit at the minimum rate.

The specified tax argument was not adopted by the court in view of the following. The court noted that the right to determine for the purpose of taxation of the taxpayer's revenue (on a deal with interdependent person) belongs exclusively to the Federal Tax Service of Russia, which is directly indicated in paragraph 2 of Article 105.3 of the Tax Code of the Russian Federation. In other tax authorities, the terms of control over the level of "market prices" are not provided. Taking into account the above, the use of this mechanism of tax control to the transactions not falling under it is unacceptable, since:

• admits the implementation of the tax authorities unidentified by the legislation and the arbitrary application of legislation;
• entails an arbitrary choice and carrying out tax control measures;
• deprives the taxpayer of guarantees provided for by law when conducting similar control measures;
• leads to the taxation of unsolved abstract income.

In addition, the tax authority did not establish the fact of obtaining unreasonable tax benefits from making these transactions.

Thus, in order to assess the risk of measures of tax control regarding the Organization Organization, according to the court, it is necessary to determine the amount of income on transactions with an interdependent face, including the amount of interest that the lender could receive from the borrower. If the amount of income on transactions for the year does not exceed the set value, then the transaction of an interest-free loan control is not subject to. Similar conclusions are contained in the Resolution of the Ninth Arbitration Court of September 30, 2015 No. 09AP-35789/2015.

In the decision of the Arbitration Court of the Volga-Vyatka district dated October 14, 2015, in case No. A29-10095 / 2014, it was stated that during the audit, the inspection concluded that the Company did not reflect in the composition of non-revenue income in order to calculate the income tax interest on the loan issued to the interdependent face. When considering the case, the court proceeded from the fact that the inspection did not provide evidence by the Company by the Company of the unreasonable tax benefit as a result of unfair behavior and abuse of its rights. In addition, the court concluded that the inspection did not comply with the conditions for conducting tax controls on transactions with interdependent persons established by Section V.1 of the Tax Code of the Russian Federation.

A too high interest rate may result in a transaction can be recognized as a balled, and subsequently not valid. This is characteristic of a minissid, issued for several hundred percent per annum.

Interest on loans between interdependent persons and their tax accounting is worried about many accountants. In our article, we will tell about what representatives of the financial department and arbitrators think about these issues.

Interest on loans between interdependent persons

In a letter dated July 15, 2015 No. 03-01-18 / 40737, the Ministry of Finance of the Russian Federation explained that companies, including interdependent, legally allowed to conclude loan agreements on convenient conditions for them. However, for income tax interest on such transactions for interdependent individuals (VL) is taken into account in accordance with paragraph 1.1 of Art. 269 \u200b\u200bNK RF. At the same time, this rate applies to interest accrued from January 1, 2015, regardless of the date of issuance of a loan (until January 1 or after it).

Learn about the features of the methods of recognizing income and expenses for tax accounting purposes from our material "The method of accrual and cash method: main differences".

Transactions between interdependent persons are considered controlled if they are characterized by the conditions of Art. 105.14 of the Tax Code. From January 1, 2015, interest on debt obligations on controlled transactions between VL tax legislation examines as an income / consumption determined on the basis of the actual bet, but within the bids recorded in paragraph 1.2 of Art. 269 \u200b\u200bNK RF.

This is how these rates on ruble loans look like:

• for the period from January 1 to December 31, 2015 - from 0 to 180% of the key rates of the Central Bank of the Russian Federation;
• after January 1, 2016 - from 75 to 125% of the key rates of the Central Bank of the Russian Federation.

According to loans in the currency, rates are valid based on EURIBOR, SHIBOR, LIBOR rates on the conditions recorded in the sub. 2-6 p. 1.2 Art. 269 \u200b\u200bNK RF.

Recall that from 09/19/2016 the key rate is 10.0% per annum.

Interest-free loan between interdependent persons

As for interest-free loans between the WL, this is also explained by the Ministry of Finance of the Russian Federation, set out in the letter of 07/18/2012 No. 03-01-18 / 5-97.

Find answers to your questions on the use of Art. 251 Tax Code of the Russian Federation in our material "Art. 251 NK RF (2015): Questions and Answers. "

According to the department, interest-free transactions do not spread the action of sub. 11 p. 1 Art. 251 of the Tax Code of the Russian Federation (it comes to applying the revenues to them, which are not included in the profit base). According to interest-free transactions between the influx of the organization-lender, there will be those percentages that it could get if the transaction was "percentage." At the same time, a comparison is carried out with similar transactions between non-interdependent legal entities.

In practice, the situation is frequent when one organization belonging to the Jurlitz group receives a loan in a banking organization under a percentage, and then transfers it for its needs as an interest-free loan (for example, to acquire basic or working capital). In such cases, when checking, the tax authorities often regard interest expenses in the framework of the loan agreement and the loan agreement are economically unjustified, and the transaction itself between the two VL is formal. However, judges in such a situation do not always fall on the side of the controllers. So, for example, in the ruling of the North-West District AGs from 01.07.2015 No. A56-60966 / 2014, the judges supported the taxpayer, having come to the opinion that transactions on the redistribution of funds (regardless of whether they are credit or not) inside the Jurlitz Group do not contradict the postulates NK RF.

Interest on loans between VL are considered income / expenses for each of the parties. In this case, theses formulated in Art. 269 \u200b\u200bof the Tax Code of the Russian Federation, applicable to controlled, and uncontrolled transactions. Income for interest-free loans do not refer to what they are not included in the profit base.

Minimum percentage of loans between legal entities in 2017

Other criteria in the signing of the contract are displayed in Art. 807 - 808 Civil Code of Russia. During the signing of the document, the participants necessarily stipulate the interest rate and record the size in the agreement. It is recommended to draw up a document on the template. With percentages, loans can be provided with percentages or without them. This is necessary to specify in the document. The percentage of the loan implies returning a potential borrower in favor of the lender the amount of debt obligations together with accrued interest, which are a remuneration for the use of other people's money. The document necessarily displays the option of accrual interest rates with the total amount. Often, interest is subject to accrual on the amount of debt. In addition, the payment schedule is applied to the agreement. Lifeless can be an interest-free lending agreement.

What minimal bet point in the loan agreement?

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

Loan and interest

Clause 1 of Article 807 of the Civil Code of the Russian Federation establishes that the borrower at the conclusion of a loan agreement must be transferred to the borrower money or things that he subsequently must return. Thus, it follows from the provisions of this item that the legally significant conditions of the loan transaction are questions about the loan (money or things) and the need to return the property taken into debt.

At the same time, the need to pay compensation for the offer for the use of its property, that is, the payment of interest under the loan agreement, in paragraph 1 of Article 807 of the Civil Code of the Russian Federation, there is no speech. Consequently, the loan deal, according to the requirements of Article 432 of the Civil Code of the Russian Federation, will be considered a prisoner, even if in the text of the contract, the question of percentages is not resolved.

This conclusion is expressly confirmed by the provision of paragraph 1 of Article 809 of the Civil Code of the Russian Federation, which determines that the indication of the need to pay interest in the text of the contract may be absent.

However, the practice of relations of economic entities gives questions to determine the amount of interest under the Treaty of Learning to pay their payment, since the main goal of a commercial organization is to make a profit. Consequently, all the subtleties of determining the magnitude and order of interest payments must be carefully reflected in the text of the agreement between legal entities.

Interest for the use of the loan under Article 809 of the Civil Code of the Russian Federation

Clause 1 of Article 809 of the Civil Code of the Russian Federation indicates that the lender, transferring money to the borrower, acquires the right to receive interest for the use of them, unless otherwise specified in the Agreement of the Parties. Thus, the monetary loan for the organization is assumed to be paid in all cases when the text of the agreement does not directly indicate that it is interest-free.

The absence of an agreement on interest in the text of the Agreement does not make it automatically interest-free, which is referred to in Article 809 of the Civil Code of the Russian Federation. In this situation, it will only be indicated in paragraphs 1 and 2 of Article 809 of the Civil Code of the Russian Federation, the procedure for their definition. According to the provisions of these items, the borrower will need to pay interest every month of the use of a lender in the amount determined on the basis of the key rates of the Central Bank of the Russian Federation at the time of the payment of the payment or its part. However, if individuals or IP are participants in the transaction, and the loan amount is less than 100 thousand rubles, the contract is considered interestless if it is not directly agreed in it.

However, it is worth mentioning about a special case when the loan is not money, but things. In such a situation, according to paragraph 4 of Article 809 of the Civil Code of the Russian Federation, in the absence of an agreement between the parties on interest, the Agreement is automatically expected to be interest.

Interest in the early loan return

Articles 809 and 810 of the Civil Code of the Russian Federation are closely associated with interest under the contract another key (but legally insignificant) condition of the Agreement - the debt repayment period. According to paragraph 1 of Article 810 of the Civil Code, the loan may be an urgent (with a fixed return date) or indefinite (in this case, the borrower should notify the borrower for 1 month or in a different period marked in the contract).

It is important to remember that depending on the need to pay interest will be able to return the loan ahead of schedule. So, according to Article 810 of the Civil Code of the Russian Federation, if the loan is interest-free, the borrower has the right to return it ahead of schedule at his own wishes.

At the same time, if the transaction between organizations implies interest payment, the return of debt ahead of time only with the approval of the lender. Such a restriction is determined by compliance with its financial interests, since with the early return of the loan, it will get a smaller amount of compensation for the use of its money, which was calculated when concluding the transaction. If the percentage of the loan is granted to a physical face, for personal needs, he can return it, having previously notified the lender for this 30 days before return.

Clause 4 of Article 809 of the Civil Code of the Russian Federation states that with the early return of the loan, the borrower is required to pay interest before the date of the actual loan return is inclusive. Thus, the ability to repay a percentage loan will early to be determined by the financial interest of the lender, which is entitled to give permission to early repayment, thereby having a part of the alleged income, or not to give such permission to obtain the entire amount of interest under the contract.

Maximum percent size, minimum interest rate, change (decrease or increase) Payments for the use of loan

In compiling a loan agreement, it is necessary to remember that the norms of the Civil Code of the Russian Federation the limit amount of interest for the use of the lender means is not determined.

Do not know your rights?

For reference: in judicial practice there was a position, the purpose of which is to create conditions for the establishment of fair and continuum interest on credit and loan transactions. As an example, it is possible to define the collegium of the Armed Forces of the Russian Federation of 29.03.2016 in case No. 83-kg 16-2, which indicates that the transaction for the loan, despite the principle of the contract provided for in paragraph 1 of Article 421 of the Civil Code, should not be explicitly burdensome For the borrower.

It should also be noted that information on the limit amount of interest, published by the Central Bank of the Russian Federation quarterly, also does not have a direct relationship to organizations by virtue of the action of Part 11 of Article 6 of the Law "On Consumer ..." of December 21, 2013 No. 353-FZ, since only consumer is intended for consumer lending.

As for the minimum percentage of the loan agreement , There is no such restriction in the legislation. Moreover, clause 1 of Article 809 of the Civil Code of the Russian Federation assumes that the loan can be interest-free, that is, free for the borrower.

Changing the magnitude of interest

According to paragraph 1 of Article 450 of the Civil Code of the Russian Federation, the side of the loan transaction has the right to change the amount of interest on it in any time in the presence of their mutual consent. The one-sided change in the interest rate of interest is directly prohibited by both Article 450 of the Civil Code of the Russian Federation and subparagraph 4 of paragraph 1 of Article 12 of the FZ No. 151 already mentioned by us (for customers of microfinance organizations).

When making changes, including a decrease in percentages, the parties should be remembered that they will take effect only from the date of signing the Agreement on this (paragraph 3 of Article 453 of the Civil Code of the Russian Federation). However, if desired, the parties in the text of the document may designate another procedure for the entry into force of novation them.

In this case, it may also be about attaching the inverse force agreement, that is, the spread of changes for the period preceding them by the statement by the parties. In the other case, according to paragraph 4 of Article 453 of the Civil Code of the Russian Federation, all the interest paid for the previously concluded rate will retain its action. For example, the borrower is not entitled to require the recalculation of previously produced percentage payments, if the interest rate will be reduced.

Incompretation of the loan and payment of interest with the receipt - the consequences under Article 811 of the Civil Code of the Russian Federation

In practice, the situation is not uncommon when the borrower is not timely calculated both by the main loan and the amount of interest accrued for its use. With a late debt return, 2 options are possible, depending on whether special sanctions are provided for the parties in the Agreement for delay or not:

1. If the order and dimensions of the penalty, according to paragraph 4 of Article 395 of the Civil Code of the Russian Federation, are defined in the Agreement of the Parties, the rules designated in the contract apply.
2. If the parties do not define special sanctions for the delay of debt, the provisions of Articles 395 and 811 of the Civil Code of the Russian Federation apply.

According to paragraph 1 of Article 811, during the non-return of the loan, the borrower should pay the so-called penalty interests accrued from the day when it had to fulfill the obligation, until the actual calculation.

It is important to remember that penalty interest is charged only on the main amount of the loan, according to paragraph 5 of Article 395 of the Civil Code of the Russian Federation. Exactly the same position is reflected in paragraph 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of October 10, 1998 No. 14. At the same time, their accrual for the amount of interest payable is possible only if the parties directly indicate such an opportunity in their agreement, aware of the consequences of this step. In the absence of indication on the amount of penalty interest payable, the rules of paragraph 1 of Article 395 of the Civil Code of the Russian Federation are applied, according to which the fine is charged on the basis of the key rates of the Central Bank of the Russian Federation.

Interest Tax

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

Regarding the VAT on the interest obtained in relation to loan transactions, the rules of subparagraph 15 of paragraph 3 of article 149 of the Tax Code of the Russian Federation are applied, according to which such operations from this tax exempted. The tax on profit on the interest received will have to pay, according to paragraph 6 of Article 250 of the Tax Code of the Russian Federation. The resulting interest in this case is taken into account as non-engineering income.

As for the order of taxation of the tax, then it should be guided by the provisions of paragraph 2 of Article 273 of the Tax Code of the Russian Federation (with a cash register method), according to which the moment of receipt of income is recognized by the day of interest in the checkout of the lender. This rule is used both in the one-time payment of the entire amount of interest and in the implementation of payments in parts.

Summing up, we note that the procedure for paying a borrower of interest under the loan agreement is not a significant condition of the transaction, but is of great importance, since the legal nature of the contract of this kind involves its retribution. That is why the parties should be particularly attentive when agreeing about interest points during the conclusion of a loan agreement.