Interest-free loan from the founder, what are the consequences of the Republic of Kazakhstan. What are the tax consequences of an interest-free loan? Loans in kind

An interest-free loan initially provides for the complete absence of any overpayments on the part of the borrower, since the lender does not require any corresponding profit from him.

At the same time, the current legislation establishes its own rules for the provision of such amounts, and therefore in most cases, if the creditor does not claim to receive any profit, it must be paid to the state.

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

APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and 7 days a week.

It's fast and FOR FREE!

It is for this reason that many try to figure out in advance what the tax consequences of an interest-free loan arise and whether they can be avoided.

Control and obligations

Today, the issue of taxation is quite controversial. Tax officials often say that a taxpayer who has received an interest-free loan has non-operating income in the form of a service consumed or property received free of charge.

To substantiate this point of view, its supporters mainly refer to paragraph 8 of Article 250 of the Tax Code, according to which non-operating profit may include property or property rights received free of charge. In this case, the valuation of the benefit received by the borrower is calculated in accordance with the refinancing rate adopted by the Central Bank.

It is worth noting the fact that this position is often supported by tax officials, and therefore taxpayers often consider it as the official opinion of the Ministry. It is impossible to say what caused this, but at the moment there is no documentary evidence that such arguments originate precisely in the Ministry.

To analyze the validity of the claims of representatives of the Tax Service, it is worth turning to the norms prescribed in Chapter 25 of the Tax Code. For tax purposes, profit is recognized as profit received from the sale of marketable products and property rights, as well as all non-operating profit.

The list of non-operating profits that cannot be taxed is specified in paragraph 1 of Article 251 of the Tax Code. Thus, in the process of determining the tax base, expenses in the form of money or any other property transferred under loan agreements, as well as in the form of funds or any other property used to repay such loans, are not taken into account.

At the same time, the question arises as to whether the borrower generates income if he is a legal entity, and in accordance with the above standards, this is not the case. Experts from the Ministry of Finance also admit that the procedure according to which benefit is determined for calculating income tax has not been established to date, and therefore the material benefit that a company receives from using an interest-free loan cannot in any way affect the tax base income tax.

Standard Requirements

In order to apply for an interest-free loan without encountering any additional financial burdens, you need to understand the conditions under which such amounts are taken and what their main features are.

Conditions and design examples

Gratuitous loans represent the transfer of a certain amount of funds or property to a company by its direct owner, and only property with any type of characteristics can be transferred, that is, individual items cannot be loaned. This is due to the fact that the debt must be returned in the same form, and even the color of the item must completely match.

This type of loan can fall into one of several categories:

It is worth noting that interest-free loans in the vast majority of cases are perpetual, because in accounting in this case it is not necessary to indicate a specific repayment date. This makes the paperwork quite convenient if the debt is not expected to be repaid in the future.

Regardless of who the parties to the contract are, it must be drawn up only in writing. At the same time, the current legislation does not establish any restrictions on the use of an electronic signature, but unforeseen difficulties may arise in the process, associated, in particular, with submitting the necessary papers to a banking institution. It is for this reason that experts generally recommend using only paper media.

The most important thing is that the document contains the following information:

• the period for which the specified amount is provided;
• exact loan size;
• interest rate or a separate note that the loan is classified as interest-free;
• is collateral provided for obtaining a loan;
• for what purposes the amount is provided to the borrower.

Amount restrictions

If an interest-free loan is issued from a legal entity of another company in cash, then, in accordance with the instructions of the Central Bank, such a settlement cannot have an amount exceeding 100,000 rubles. In other words, the lender can loan the borrower no more than this amount, and must receive the same amount back in cash.

In addition, you need to take into account the fact that it is prohibited to carry out such operations using funds from the cash register, that is, they must first be deposited into your bank account and then withdrawn from it. If the loan is transferred by bank transfer, then there are no restrictions on the amount.

Nuances of payment and transfer

The agreement can indicate in advance that the lender receives certain guarantees for the fulfillment of the obligation, which may be the transfer of a certain collateral to him, but it must be correctly understood that as a result of receiving the collateral, the borrower may also have some tax consequences.

When transferring property as collateral, there is no transfer of ownership, and therefore this operation does not belong to the category of sale, and regardless of whether the property is transferred, the borrower should not charge VAT.

If the property remains with the borrower, then he can continue to use it to make a profit and there is no reason to exclude it from the list of depreciable property. In this case, each month you will need to take into account the monthly depreciation amounts for this facility.

If the collateral is sent to the lender, then the Tax Code does not say that it needs to be excluded from depreciation funds, and therefore depreciation accrued on this property can be taken into account in costs.

Among other things, do not forget that the ownership of the pledged item is not removed from the borrower, and therefore it continues to be listed on his balance sheet and is included in the list of objects of taxation by property tax.

How to receive and return

When a certain amount of funds is transferred to a loan, both parties find themselves in a borrowing relationship, and this must necessarily be secured in a separate document, preferably drawn up on company letterhead. In the absence of such registration and limiting oneself only to those documents that confirm the transfer of funds, there remains the risk that during the trial the recognition of the existence of a borrowing relationship may be refused.

The lender can direct funds to achieve certain goals, and this will be considered the provision of a targeted loan, but in this case, the agreement must not only indicate a separate condition on the intended purpose, but also determine the procedure in accordance with which control over the use of the provided funds will be ensured .

In particular, this may be the transfer of documents confirming the fact of the intended use, notification of the place and date of delivery of the funds received, as well as providing access to the place where the purchased property is stored.

If the borrower does not fulfill the main condition of the intended purpose, then in this case the other party has the right to demand early repayment of the specified amount or apply additional sanctions provided for in accordance with the drawn up agreement.

The funds received must be returned within the period specified in the agreement, and if it is not specified, then the required amount will need to be returned within 30 days from the date of receipt of the corresponding written request from the lender. The method by which the amount will need to be returned is also often specified in the terms of the contract.

Tax consequences of an interest-free loan from the founder

When applying for a loan from the founder, the tax consequences will directly depend on the characteristics of each individual case. In the case of an interest-bearing loan, the founder pays personal income tax on the amount of interest specified in the agreement, while in the case of a gratuitous loan, neither party receives any profit and, accordingly, does not have to pay any taxes.

Despite the fact that, in accordance with current legislation, interest-free loans cannot be considered as those that entail certain tax consequences, some representatives of the Tax Service say that due to this the company has non-operating profit, and therefore before In order to proceed with applying for this loan, it is best to consult in advance with the employees of the local branch of the tax authority.

If the employees of the control body act independently and charge taxes on profits from the provided interest-free loan, then in this case a claim can be filed against them, since the norms of the current legislation indicate that the borrower is right.

If more than three years have passed since the end of the agreement, but the debt has not been repaid or the agreement has not been extended, this loan will be considered profit for the company, on which the corresponding amount of tax will be required to be paid.

Features and risks

The definition of material benefit is established in accordance with Chapter 23 of the Tax Code. On the one hand, savings in the form of interest charges should be included in the tax base, but in accordance with the instructions of Chapter 25 of the Tax Code, they belong to the category of material benefits obtained through the use of funds provided, and they do not relate to income tax income.

The wording “interdependent person” in accordance with the provisions of Article 105.1 of the Tax Code includes any legal entities or individuals who have more than 25% of the share in the authorized capital of the company, since they receive dependence due to the invested share.

In accordance with the provisions of Article 105.14 of the Tax Code, a transaction that is carried out between related parties is classified as controlled if the amount of profit over one year exceeds a billion rubles. If the founder provides interest-free loans in a smaller volume, then in this case he will not be subject to additional taxes for profits lost from interest charges.

A legal entity that received an interest-free loan from the founder receives a material benefit, but since in accordance with the provisions of Chapter 25 of the Tax Code the procedure for determining profit is not determined, the tax base will not increase. If the recipient of the loan is an individual, he will receive a material benefit in the form of non-chargeable interest charges, and a tax of 13% will be charged on this amount.

The Tax Service conducts regular desk or on-site audits in order to determine the very fact of receiving unjustified profit by a legal entity. Such profit can be generated by reducing the tax base by reducing the transaction amount, which leads to the formation of certain risks.

Having discovered such a fact, an additional tax is charged, taking into account the market value. The risk extends to legal entities operating on a simplified system if the loan provided is not repaid within the time limits established by the agreement, since in this situation profit becomes subject to taxation.

Accounts payable that are written off due to the expiration of the statute of limitations are considered non-operating profits, and they will need to be reflected in the tax base established under the simplified system. In accordance with the provisions of the Tax Code, the statute of limitations is standardly three years, and it is calculated from the date on which the loan amount must be repaid.

Common mistakes and how to avoid them

In order to eliminate errors in the process of drawing up an interest-free loan agreement, it is worth remembering several key features inherent in such operations:

• Such agreements can only be drawn up in writing, since otherwise the transaction will be considered invalid;
• it is not necessary to have the agreement certified by a notary, but many legal entities resort to this measure, since this allows us to guarantee the execution of the agreement in full compliance with current legislation, and in addition, the notary is an additional witness;
• it is not necessary to register this transaction with Rosreestr, but if the loan is provided as collateral in the form of real estate, both agreements must be registered;
• The legal force of the agreement appears from the moment the subject of the loan is provided to the borrower;
• the subject of the agreement can be not only money, but also various property that has any generic characteristics;
• the contract must contain the details of each party;
• the loan amount must be indicated both in numbers and in words;
• it is necessary to indicate in the contract that the lender will not charge additional payment for the use of borrowed funds;
• the contract must indicate the period for which the loan is provided, and if this period is not specified, the contract will be considered unlimited, and the debt will have to be repaid within a month from the date of receipt of the corresponding request.

Every business may be at risk when receiving a loan from a founder. There is no dependence on the accrual of interest on the loan. The actions of the founder are often monitored by employees of regulatory authorities.

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

APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and 7 days a week.

It's fast and FOR FREE!

It is worth understanding that the tax consequences of an interest-free loan depend on the status of the transaction. We will analyze possible situations in more detail below.

Definitions

An interest-free loan is a transaction in which a certain amount of money is provided by the lender in favor of the borrower, subject to certain conditions. In most cases, this loan is provided for a specific period specified in the loan agreement. This document is concluded between the parties and comes into force after the transfer of money.

The creditor is obliged to transfer valuables or money to the potential debtor, and the borrower undertakes to return the subject of the agreement on time. It is worth remembering that a gratuitous loan may have a specific purpose, and this involves spending the loan money to perform certain tasks, which must be specified in the terms of the contract.

Kinds

Loans without interest are divided into two categories: reimbursable and interest-free. The first category of loans will be considered as such when interest is paid to the lender in the form of incentives.

As for interest-free loans, in this case the borrower repays only the amount that was agreed upon in the loan agreement. It is important to remember that a loan in kind must initially be considered interest-free in situations where the agreement does not contain other provisions.

Legislation

The issue of the legality of providing a loan without interest is regulated by the following regulations and documents:

1. Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 3009/04 dated 03.08.2004
2. Letter of the Ministry of Finance of the Russian Federation No. 03-03-06/2/120 dated 08/11/2011
3. Article .
4. Letter from the Ministry of Finance of the Russian Federation dated August 13, 2013
5. Article .

Who can receive

This type of lending is available to any individual or legal entity. As for individuals, citizens must be legally capable and minors.

They must also be responsible for their actions and be aware of them. The age of an individual must range from 21 to 70 years. There are no other requirements for such participants.

Tax consequences of an interest-free loan

It is important to remember that a mandatory condition of the loan agreement is the repayment of borrowed funds. In other words, the debtor undertakes to repay the amount of debt to the creditor within a certain period and in the manner provided for by the provisions of the loan agreement in accordance with.

De jure, a loan agreement can be interest-bearing or interest-free. However, de facto, can such an agreement really be free? Let's consider various options for a loan agreement, and also try to understand what tax consequences an interest-free loan may have.

Between legal entities

In this situation, the main difference is the obligation to compile documents in writing. If the agreement is interest-free, then this condition must be reflected in it without fail. Otherwise, rules may come into force according to which the lender by default has the right to receive interest from his borrower.

The amount of these interest may be determined by the refinancing rate in the region where the lender is located. The lender also has the right to impose penalties under the agreement in the event that the debt is not repaid on time.

Lender is a legal entity, borrower is an individual

The creditor organization has the right to issue credit funds in favor of an individual. It is worth understanding that in this situation, the form of the agreement must be written. When a lender uses the simplified tax system or OSNO system according to the issuance of a loan in cash, non-NPP are not considered taken into account as expenses. But then the borrower can be content with generating income, which is expressed in the form of material benefits.

This situation arises when using credit money for interest-free financing. The lender withholds the tax from the individual and transfers it.

Lender is an individual, borrower is a legal entity

This format of lending relationships has recently become very popular. Some enterprises try in this way to disguise the lack of wage payments to their employees, while others disguise the receipt of funds to increase the company’s net assets, while others try to solve all the problems that have arisen in connection with the difficult economic situation.

When an organization receives an interest-free loan from an individual, several points must be taken into account.

The company has a certain benefit, which cannot act as its additional income for taxation, according to the Letter of the Ministry of Finance of the Russian Federation dated April 2, 2010. Employees of control bodies cannot take into account income in the form of cash, as well as in property, to determine the basis for the company’s NPP. The borrower will not have taxable income.

Between individuals

This type of credit relationship presupposes the possibility of concluding an agreement either in writing or orally. For these reasons, borrowers and lending organizations do not generate any income.

In addition, the debtor is not allowed to generate income even as a material benefit due to the fact that he saves on interest while receiving a loan. According to the Letter of the Ministry of Finance of the Russian Federation dated January 19, 2009, employees of control bodies adhere to the same position.

Postings

Options for accounting for an interest-free loan among individuals and legal entities are listed in the following list:

1. Interest-free loan - debit 73, credit 51.
2. The loan amount is repaid - debit 51, credit 73.
3. Personal income tax is withheld from the employee’s material benefit - debit 70, credit 68.
4. Recognition of the transaction as controlled, accrued income tax - debit 99, credit 68.
5. An interest-free loan was received - debit 51, credit 66.
6. The loan amount is repaid - debit 66, credit 51.

What are the consequences of non-refund?

The creditor who issued the funds has the right to demand their return in court after the deadline for fulfilling the loan obligations has passed and the funds have not been returned. According to , the statute of limitations for a claim is three years.

For example, if a loan is taken out for 5 years, this means that the claim can be kept for up to 8 years. Accordingly, after this period has passed, the borrower's accounts payable can be written off.

Arbitrage practice

To date, judicial practice is not clear on these issues. In some situations, courts indicate that the failure to obtain the desired financial result, which is expressed in the amount of interest under the agreement, is beyond the control of the tax authorities. At the same time, concluding transactions without interest cannot lead to visible changes in the tax base under the NPP for any of the parties to the agreement.

Accordingly, such transactions are recognized as controlled only when amounts of more than 1 billion rubles are involved.

In other words, the courts are sending the arguments that are given in the letter of the Federal Tax Service of the Russian Federation No. E34-2/100-8674 dated September 16, 2014, regarding the fact that price checks for compliance with regard to uncontrolled transactions are carried out among interdependent persons.

Size restrictions

Due to the fact that the transaction is carried out on a voluntary basis, the state does not interfere with limiting the size of the loan. The parties can make these decisions independently. But it is worth considering that if the loan amount is more than 600,000 rubles, regulatory authorities may be interested in this transaction.

If a client withdraws a large amount of money from his account and transfers it to other accounts, then the purposes of such measures must be announced to the bank employee.

And at the same time, employees can request from such persons a credit agreement for loans without interest.

Registration of the contract

Correct execution of the agreement guarantees the absence of taxation problems. Most often, the founders of enterprises participate in the transaction.

Signing an agreement by third parties is possible if they have powers of attorney. The use of an electronic digital signature is also acceptable.

The interest-free loan agreement is currently freely available. It is also important to remember that obligations are imposed on the parties to the agreement only after the actual transfer of value or funds occurs.

How to avoid mistakes

Russian businessmen often use gratuitous loans to recombine money between partner firms. It happens that contracts are also used by independent business entities. Despite the usual form, a gratuitous loan between law firms has some nuances that must be taken into account.

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

APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and 7 days a week.

It's fast and FOR FREE!

Is such a loan possible?

According to the legislation in force in the Russian Federation, a loan is an agreement on the basis of which one of the parties acts as a creditor and transfers to the other, the client, cash or objects determined by universal generic properties.

But the owner has a duty to return the received cash or objects. Any individual or legal entity has the right to register an agreement. In this case, the company needs to rely not only on the operating instructions, but also on the company’s Charter.

It may prohibit the manager from registering these contracts without the consent of the meeting of creators or a superior company.

All microloans can be divided into two groups according to availability:

• Paid.
• Gratuitous.

In case of registration of a reimbursable loan, the citizen pays him income in the form of interest for the use of cash or things of the creditor. A gratuitous loan is paid free of charge and does not imply the receipt of remuneration by the lender.

Any property loan is considered gratuitous unless otherwise specified in the contract. Cash loans, on the contrary, provide for exact payment of remuneration when the contract has no other basis.

Peculiarities

A friendly organization can provide support to the company by issuing a gratuitous loan. However, the contract for the issuance of cash on credit does not provide for the payment of interest.

It is necessary to draw attention to the fact that these contracts have a number of nuances, here are the main ones:

• The need to clearly indicate that the loan is provided on an interest-free basis.
• The likelihood of receiving on credit not only cash, but also objects defined by universal generic characteristics.
• The likelihood of early repayment of the loan without a binding contract with the lender.
• The likelihood of specifying the exact purposes of the loan in the contract and penalties for delays.
• A written contract is required.

You need to know that a cash loan will be considered gratuitous only if there is an exact indication of this fact in the contract. In another situation, the client is obliged to pay interest to the lender every month, departing from the current refinancing rate. Loans provided by objects are free of charge by default and this clause in the contract is optional.

According to paragraph one of Article 807 of the Civil Code, loans can be provided not only in cash, but also in objects that have generic characteristics. Assets that have personal characteristics cannot be issued on credit, because in a situation of damage, it will be unrealistic to return the object of the same quality.

It is allowed to transfer seeds, materials and others under loan contracts, but you cannot provide a painting, handmade sculpture, or a car on credit from the state. numbers. By providing gratuitous loans, the lender does not hope to receive a reward, and because of this, is interested in the quick return of money or assets.

The RZ allows for early repayment of any gratuitous loans. The creditor's permission or consent for this is not requested, as well as his prior notification.

A targeted loan contract can be drawn up between organizations. In this situation, credit money can only be spent to correct the problems shown in the contract. The client in this situation must provide the possibility of control over their use to the lender.

In a situation of misuse of money, the lender may request to repay the loan ahead of time. Despite the interest-free nature of the original contract, it may have penalty clauses for delays in repaying the debt. If the client fails to comply with the contract, for example, by missing the next payment, the lender may charge penalties that were discussed in advance.

An interest-free loan agreement between legal entities can only be drawn up in writing. Regardless of the size of the loan, it is impossible to conduct a transaction based on an oral contract.

Video: Advice from a lawyer

Amount restrictions

There are no limits on the amount specified by law. Legal companies have the right to issue loans in any amount and receive them.

But you need to remember that when the value of one transfer is above 600,000 rubles, then inspection organizations may be interested in this, and the bank will only ask for a contract.

Maximum loan amount

There is no exact limit on the loan contract amount. Law firms can personally decide how much to receive and provide loans based on personal opinions.

A number of companies introduce restrictions into the Charter and if the loan amount is high, it is necessary to discuss it with the creators. Loans can be provided in cash or by transfer to a bank account.

Given the nature of settlements between legal entities. companies must adhere to the conditions of the Central Bank, which limit the largest possible loan amount to 100,000 rubles.

Sample contract

An accurately registered loan contract will provide the possibility of avoiding bad results, both between the parties to the contract and during taxation. An agreement between law firms can only be registered in writing, but it is also allowed to sign it electronically.

Download a sample interest-free loan contract between two legal entities. companies can.

Usually the contract is signed by the manager, but sometimes it is allowed to be signed by a person who works on the basis of a power of attorney. In a situation where the company's charter provides for obtaining permission to provide loans from the founders, it must be attached to the overall package of papers.

The microloan contract is valid. The very fact of its signing does not impose various obligations on the parties. They appear only after the transfer of money or other assets from the lender to the client.

Material benefit

When purchasing a gratuitous microloan, the client does not receive financial income. Chapter 25 of the Tax Code does not prescribe the procedure for its establishment and assessment.

The Ministry of Finance of the Russian Federation adheres to the same view in its letter No. 03-03-06/1/465 dated July 14, 2009. The views of tax organizations at the place of registration of the company often do not agree with him.

Tax consequences of an interest-free loan between legal entities

When calculating tax results, everything is clear with the creditor company. Since interest is not paid, the organization does not have additional income, and because of this, the base for income taxes and VAT does not increase.

Taxation of the client is a controversial issue. Most tax organizations follow the belief that when receiving a gratuitous loan, the client organization receives non-sale income, since the funds are used to acquire material benefits, and no interest is paid for this.

At the same time, clients are asked to use the Central Bank refinancing rate to calculate the amount of such income. As evidence, people who adhere to this method of calculating the tax base rely on Article 250 of the Tax Code of the Russian Federation.

The position of the MF and loans is completely different. Letter from the Ministry of Finance No. 03-03-06/1/465 dated July 14, 2009 clearly indicates that the client does not have a financial benefit and there is simply nothing to charge additional taxes on. It is better to find out the position of the tax authorities at the place of registration of the company in advance. This will help you avoid questions and will give you the chance to prepare for court investigations that are related to the additional assessment of tax on the organization’s income.

Common mistakes when drawing up a contract

When drawing up a contract for a gratuitous microloan for an organization, they pay little attention to its essence. This is due to the fact that in most cases these loans are issued between familiar persons and the transaction is carried out more on trust. Despite this, it is necessary to draw up the contract accurately, including for tax accounting purposes.

Let's look at the most common mistakes:

• Failure to indicate in the contract that the cash loan provided is free of charge.
• There is no redemption time.
• There is no indication of the loan object.

These errors may lead to the fact that the loan contract will be considered compensated, and it will be necessary to pay accrued interest to the lender and taxes. If there is insufficient loan time in the contract, the lender has the right to request its repayment at any time, notifying the client thirty days in advance.

Correcting already made mistakes is possible only in a single way - by signing another contract. It will be a necessary part of it and will help you avoid bad consequences.

Accounting

In terms of accounting, a gratuitous loan is no different from simple loans.

Short-term loans that need to be repaid within a year are accounted for in account 66, and long-term loans, which have a long loan term, are accounted for in 67. The absence of interest makes it unnecessary to use account 91 to account for them.

An accurately registered gratuitous loan contract will provide a chance to avoid disputes with regulatory organizations and possible tax problems for both parties. It is better to allow much more time to complete it than to challenge the assessment of additional taxes in the future.

Relations that arise in the provision of a loan are regulated by Chapter 42 of the Civil Code of the Russian Federation. In accordance with Article 807 of the Civil Code of the Russian Federation, a loan agreement means that one party (the lender) transfers funds or other property into the ownership of the other party (the borrower). The borrower undertakes to return to the lender after a specified period of time in full, if it is cash, and if other property, then in full and in the amount of the property that was transferred under the agreement.

Types of loan

A loan is the provision by one person to another person of a certain amount of money for a certain period of time on the basis of an agreement concluded between them.

There are two types of loans:

Paid loan– is the provision of funds or other property for temporary use to another person for interest. That is, the borrower pays a certain percentage to the lender for the use of his funds or property;

Interest-free loan- this is the provision of funds or other property for temporary use, but the borrower does not pay anything for it.

Issuing an interest-free loan to another organization

According to Article 808 of the Civil Code of the Russian Federation, the conclusion of a loan agreement between legal entities must be concluded only on paper. If the agreement is interest-free, then it is necessary to state this or mention it in the title of the agreement itself. If this is not stated anywhere, then the lender may require certain interest from the borrower for providing the loan. And the interest rate for using a loan will be considered the refinancing rate on the date of repayment of the loan or part of it, as stated in clause 1 of Article 809 of the Civil Code of the Russian Federation. If the subject of the agreement is things, then such an agreement will be considered interest-free if there is no mention of this condition in it.

When drawing up this type of agreement, the question always arises as to what tax consequences there may be when providing an interest-free loan between legal entities. We will try to understand this in this article.

Tax consequences for the lender of a legal entity

If the lender is an organization that is subject to the general taxation system, then the funds transferred to the borrower in the form of an interest-free loan, as well as the amounts received into the account as loan repayment are not included in expenses and income - this is regulated by clause 12 of Art. 270, sub. 10 p. 1 art. 251 Tax Code of the Russian Federation.

The return of funds to the lender's account as a return of the principal debt is not considered income, but there are exceptions in situations where the return of the loan is recognized as bad. This happens when:

• the debtor enterprise has been liquidated and a corresponding entry has been made in the Unified State Register of Legal Entities;
• the debtor enterprise is declared bankrupt, and the court’s ruling on the end of bankruptcy proceedings has entered into force.

In such situations, bad debt can be classified as unrealized expenses in accordance with subparagraph. 2 p. 2 art. 265 Tax Code of the Russian Federation.

Transactions that are related to the provision of a loan or its repayment are not subject to taxation and are not subject to VAT. Providing a loan only in cash is not subject to VAT.

Tax consequences for a legal entity borrower

If the borrower is on the general taxation system, then the funds received into the organization’s account are not recognized as income, which is regulated by paragraphs. 10 p. 1 art. 251 of the Tax Code of the Russian Federation, as well as when repaying borrowed funds, will not be included in expenses, which is also regulated by clause 12 of Art. 270 Tax Code of the Russian Federation.

If the borrower is on a simplified taxation system, then the funds received will not be considered income on the basis of paragraphs. 1 clause 1.1 art. 346.15 of the Tax Code of the Russian Federation, and the return of these funds will not be included in expenses.

Taxpayers very often have a question about whether, with an interest-free loan, there will be material benefits from saving on interest. The answer to this question is that when saving on interest when using an interest-free loan, a tax base is not formed, and such savings are not subject to taxation, this is stated in the letter of the Ministry of Finance dated 02/09/2015 No. 03-03-06/1/5149

Accounting entries for interest-free loans

To reflect the entries in accounting, it is necessary to pay attention to the second party to whom the interest-free loan is provided. And so let’s look at which accounts to conduct:

• account 73 – if the borrower is an employee of the enterprise;
• account 76 – if the borrower is a third-party individual;
• account 76 – used when providing an interest-free loan between legal entities;
• account 58 - cannot be used when providing an interest-free loan to another legal entity, since the interest rate is zero and the transaction is not a financial investment.

In the table we put a number of wires that can be used when processing interest-free loan transactions:

Features of obtaining an interest-free loan

There are no legal obstacles to concluding an interest-free loan between legal entities, but there are certain features that must be observed:

• an agreement on the provision of an interest-free loan must be drawn up only in writing;
• two copies are required;
• signed by both parties and certified by the seal of each party;
• if the object of the agreement is money, then it is necessary to mention in the agreement that the loan is provided as interest-free, otherwise the tax service may have questions;
• if the object of the agreement is property, then there is no need to indicate that it is interest-free. The contract will be considered interest-free by default;
• if the transaction amount exceeds 600 thousand rubles, then the agreement must be registered.

Interest-free loan agreement between legal entities

The agreement between legal entities is concluded in two copies. In order for a transaction to be considered valid, the contract must include mandatory clauses, such as:

If during the validity period some changes occur in at least one of the clauses of the contract, then it is necessary to document this, for example, draw up an additional agreement specifically for those clauses in which changes occurred.

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

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

APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and 7 days a week.

It's fast and FOR FREE!

General concepts

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

Tax consequences of issuing an interest-free loan

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

What features does it have?

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

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

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

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

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

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

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

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

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

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

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

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

If he borrows the same amount from a bank at the minimum interest rate, he must pay about 6,000 rubles.

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

Risks of the procedure

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

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

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

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

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

In accordance with the instructions of the Tax Code, the statute of limitations for accounts payable is 3 years. It is counted from the day when it was necessary to repay the loan.

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

Design features

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

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

They do not know what to do to avoid accumulating debts to the federal tax service and administrative liability.

At the moment, there are several ways to avoid personal income tax.

These include:

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

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

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

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

Important aspects

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

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

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

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

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

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

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

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

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

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

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

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

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

As for the income tax on interest-free loans, from this year legal entities are required to pay it every month.

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

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

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

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

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

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

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

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

The first type of transactions can be controlled by the Federal Tax Service or uncontrolled.

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

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

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

Resolution of the RF Armed Forces:

Letter from the Federal Tax Service of the Russian Federation:

Letters from the Ministry of Finance:

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