Is personal income tax levied on the loan. Personal income tax from a loan to an individual. Calculation of material benefits from a loan to an individual without paying interest

Is it necessary to withhold personal income tax when paying interest under a loan agreement if one is concluded with an individual entrepreneur?

Income in the form of interest under a loan agreement received by an individual who is a tax resident of the Russian Federation is recognized as an object of taxation and is taken into account when determining the base for personal income tax (clause 1, clause 1 of article 208, clause 1 of article 209, clause 1 of article 210 of the Tax Code ). Moreover, according to clauses 1 and 2 of Art. 226 of the Tax Code (hereinafter referred to as the Code), an organization that borrowed from an individual and pays him the named interest is, in relation to this income, a tax agent for personal income tax. Accordingly, the interest is paid to the individual already minus the personal income tax. And the withheld tax amount on the basis of clause 6 of Art. 226 of the Code is transferred to the budget no later than the day following the day the income is paid to the taxpayer.

The Ministry of Finance in a Letter dated February 1, 2016 N 03-04-06 / 4448 expressed the opinion that the above procedure should be applied to income in the form of interest on the amount of the loan, regardless of whether the individual receiving such income is registered as an individual entrepreneur or not. ... Meanwhile, it seems that this conclusion is applicable only to situations when the "interest" income of an individual entrepreneur is not associated with his entrepreneurial activities, that is, when an individual entrepreneur acted as a lender as a simple individual (see also the Letter of the Ministry of Finance of October 3, 2008 . N 03-04-06-01 / 288). In this case, in fact, the company in relation to the income paid to it in the form of interest under the loan agreement is recognized as a tax agent for personal income tax.

It is another matter if an individual entrepreneur enters into transactions for the provision of loans as part of his professional activity. In such circumstances, by virtue of paragraphs. 1 p. 1 of Art. 227 of the IP Code independently calculates, pays and declares personal income tax. In other words, the company is not a personal income tax agent with respect to such income. And, accordingly, the individual entrepreneur pays interest in full, that is, without withholding tax amounts.

However, in reality, everything is not as simple as we would like. Obviously, first of all, when resolving the issue of whether to withhold or not to withhold personal income tax from the amounts of interest paid to individual entrepreneurs under the loan agreement, it is necessary to look at whose name this agreement was concluded. So, if the agreement does not indicate that the party to the transaction is an individual entrepreneur, then you are definitely dealing with an agreement concluded with an ordinary individual. Therefore, when you pay interest to the lender, you withhold and pay to the budget of personal income tax in accordance with the general procedure (see, for example, Letters of the Ministry of Finance dated August 12, 2010 N 03-04-05 / 3-453, dated August 10, 2010 N 03-11 -11/218, etc.).

Let's say the agreement states that the lender is an individual entrepreneur (and even all the necessary details are given). Can we assume that under such circumstances, you can forget about the obligations of a tax agent for personal income tax in relation to the income paid to the named individual entrepreneur? Unfortunately, things are not so simple. The fact is that the regulatory authorities refer to income received from entrepreneurial activity as income from those activities that are indicated during registration as an individual entrepreneur and information about which was entered in the USRIP (see, for example, Letters of the Ministry of Finance of August 13, 2013 N 03-11-11 / 32808, dated November 9, 2012 N 03-11-11 / 338, dated February 1, 2012 N 03-11-11 / 21, dated December 5, 2011 N 03-11 -11/309, dated December 19, 2011 N 03-11-11 / 318, etc.). Therefore, at least to resolve the "fate" of personal income tax, you should look at the extract from the USRIP in terms of the types of entrepreneurial activities declared by the IP lender.

Tax agents are required to withhold the accrued tax amount directly from the taxpayer's income when it is actually paid. Withholding from the taxpayer the accrued tax amount is carried out by the tax agent at the expense of any funds paid by the tax agent to the taxpayer, upon actual payment of the indicated funds to the taxpayer or on his behalf to third parties (clauses 4, 6, Article 226 of the Tax Code of the Russian Federation). The aggregate amount of tax calculated and withheld by the tax agent from the taxpayer, in respect of which he is recognized as a source of income, is paid at the place of registration of the tax agent with the tax authority (clause 7 of article 226 of the Tax Code of the Russian Federation). Thus, an organization, being recognized as a tax agent, is obliged to withhold the accrued amount of personal income tax directly from the taxpayer's income received in the form of interest, upon their actual payment. In accordance with paragraph 2 of Art.

Personal income tax on a loan to an individual in 2018

Consequently, an organization that received a loan from an individual (including from its employee) and pays him interest is obliged, as a tax agent, to deduct the amount of personal income tax from the lender from this interest and pay it to the budget. By virtue of paragraph 4 of Article 226 of the Tax Code of the Russian Federation, personal income tax is withheld at the expense of any monetary funds paid by the tax agent to the taxpayer, upon actual payment of the said monetary funds.

In this case, the withholding tax amount cannot exceed 50% of the payment amount. If it is impossible to withhold the calculated amount of personal income tax, the tax agent is obliged, within one month from the date of the end of the tax period in which the relevant circumstances arose, to inform the taxpayer and the tax authority at the place of its registration in writing about the impossibility of withholding tax and the amount of tax (paragraph 5 of Article 226 of the Tax Code of the Russian Federation) ...

Personal income tax for loans

In addition to their own standard tax deductions, the taxpayer can take advantage of "child" deductions. In accordance with subparagraph 4 of paragraph 1 of Article 218 of the Tax Code of the Russian Federation, such deductions apply to the parent, spouse of the parent, adoptive parent, guardian, trustee, adoptive parent, spouse of the adoptive parent, on whose support the child is located, and are provided in the following amounts : 1,400 rubles - for the first child; 1,400 rubles - for the second child; 3,000 rubles - for the third and each subsequent child; 3,000 rubles - for each child if a child under the age of 18 is a disabled child, or a full-time student, graduate student, resident, intern, student under the age of 24, if he is a disabled person of I or II group.

Taxation of personal income tax on income under a loan agreement

The role of a tax agent obliges the lender to:

• calculate material benefits every month;
• withhold personal income tax from this calculation;
• make the payment of the calculated personal income tax to the budget;
• provide reporting documentation for personal income tax.

In accordance with clause 7, clause 1 of article 223 of the Tax Code of the Russian Federation, the date of actual receipt of income is the last day of each month during the period for which borrowed (credit) funds were provided, upon receipt of income in the form of material benefits obtained from savings on interest when receiving borrowed (credit) funds. Example 2. LLC "ABV" provided an interest-free cash loan to an individual on April 22, 2017.

for a period of 6 months, i.e. until 22.10.2017

Personal income tax is withheld from interest on a loan paid to an individual

• staying in the Russian Federation for at least 183 calendar days within 12 consecutive months;
• the period of stay of which in the territory of the Russian Federation is not interrupted for the periods of his departure outside the territory of the Russian Federation for short-term (less than 6 months) treatment, training, performance of labor or other duties related to the performance of work (provision of services) at offshore hydrocarbon deposits;
• Russian servicemen serving abroad;
• employees of state authorities and local self-government bodies sent to work outside the Russian Federation.

In accordance with clause 2 of article 224 of the Tax Code of the Russian Federation, in the case of a tax loan to an individual, the interest rate under the Agreement of which does not exceed 2/3 of the rate of the Central Bank of the Russian Federation, the tax rate on personal income is set at 35%.

July 4, 2017ndfl from interest income under the loan agreement

Thus, when calculating personal income tax from the material benefit of a non-resident of the Russian Federation, it is this tax rate that must be taken into account. Example 5. LLC ABV provided on 12.07.2017 an interest-free cash loan in the amount of 100,000 rubles for a period until 31.12.2017.

an individual who is not a resident

Important

• MV = 100,000 * 6% * 20/365 = 328.77 rubles.
• Personal income tax = 328.77 * 30% = 98.63 rubles.

Thus, on July 31, 2017, ABV LLC must be withheld and paid to the personal income tax budget in the amount of 98.63 rubles.

Calculation of personal income tax from a loan to an employee When granting a loan to an employee and calculating material benefits with the subsequent calculation of personal income tax, it is necessary to take into account the purpose of providing a loan.

Personal income tax on interest under the loan agreement

First, we note that loan relations are formalized by a loan agreement. The civil law basis of the loan agreement is established by paragraph 1 of Chapter 42 "Loan and Credit" of the Civil Code of the Russian Federation (hereinafter - the Civil Code of the Russian Federation).

Attention

According to paragraph 1 of Article 807 of the Civil Code of the Russian Federation, under a loan agreement, one party (the lender) transfers to the ownership of the other party (the borrower) money or other things defined by generic characteristics, and the borrower undertakes to return the same amount of money (loan amount) or an equal amount of other received to the lender them of things of the same kind and quality. A loan agreement is considered concluded from the moment the money or other things are transferred.

Based on the requirements of paragraph 1 of Article 161 and paragraph 1 of Article 808 of the Civil Code of the Russian Federation, if one of the parties to the loan agreement is a legal entity, then the loan agreement must be concluded in writing.

Personal income tax with interest on the loan agreement posting

Article 41 of the Code defines income as an economic benefit in cash or in kind, taken into account if it is possible to evaluate it and to the extent that such benefit can be estimated, and determined for individuals in accordance with Ch. 23 "Personal Income Tax" of the Code. The list of incomes exempted from personal income tax is contained in Art. 217 of the Code. This item does not contain income in the form of amounts of funds paid under the loan agreement. Thus, if the borrower returns the amount of funds in excess of the loan amount received by him, the lender receives an economic benefit (income) subject to personal income tax . With respect to the specified income, clause 1 of Art. 224 of the Code established a tax rate of 13 percent. With regard to the provisions of Art.

Many are sure that the provision of a loan between individuals - to acquaintances and friends should not bother the state. Especially if a person does not engage in such activities professionally, but only occasionally helps people with borrowed money (not forgetting, however, about his own benefit). But this is not the case. In the opinion of the tax authorities, any income received by a Russian should be subject to taxation, with the exception of some cases specifically specified in the relevant laws.

The interest received by you on private loans is definitely subject to personal income tax! A law-abiding Russian must annually calculate his income from loans that he issued in each last year, and, visiting the local tax office, fill out a 3-NDFL form.

By the way, income means the money actually received this year, and not the money that must be given to you under the contract. So if the borrower has delayed the payment of interest (namely, interest, but not the body of the loan!) By December 31 of the last year, then the tax is not paid. More precisely, you will have to pay, but a year later.

Payment rules and tax rate for citizens

The tax rate on income from loans for tax residents of the Russian Federation is standard - 13 ‰.

There are no different rules for defining “overpriced” or “understated” interest related to loans received or issued by organizations. Therefore, no matter what, you are obliged to give to the treasury exactly 13 ‰ of the total benefit received on the loan.

When a loan is issued to an individual, fully returned to you in the year ended with interest, it is enough to subtract from the amount returned that amount that was given to the borrower earlier. The difference is the taxable income.

With a partial repayment of the loan, together with the indicated part of the interest, only the data on the interest received is taken into account. When the loan has been repaid in full or in part, and interest is to be paid only in the current year, then the tax should not be paid at the moment, since the benefits have not yet been received. You will have to pay at the beginning of the coming year.

Some cunning lenders do this: in the loan agreement and receipt of funds, it is prescribed that the borrower needs to return a certain amount without interest, but in reality he receives a smaller amount in his hands. In this case, in his opinion, tax liabilities do not appear, since the loan in the agreement is designated as interest-free.

In fact, the state is not at all interested in what and how is written in the agreement. Only one circumstance is important: the citizen (that is, the lender) has more funds than it was before the transaction. This “more” is taxable income and it does not matter how the contract was entered into. Therefore, a law-abiding creditor, even with a similar form of agreement, is obliged to fill out a declaration next year, disclose the income received in it and pay 13 ‰.

Another thing is that if there are no witnesses to the transfer of funds, then no one (except the lender and the borrower) knows what actually happened, and the payment of tax on such a transaction depends solely on the honesty of the lender.

Sometimes the borrower: if he received an interest-free loan from another individual, does he have to pay tax? After all, such a debtor, in general, receives a “virtual” income due to the fact that there is no need to pay interest.

We answer: no, it shouldn't. It is generally accepted that (unlike legal entities and individual entrepreneurs) ordinary individuals receive funds in debt not to extract profits or in the form of hidden salaries, but only for personal purposes, in order to purchase something or pay for some service (that is, to irrevocably spend money).

04.03.2014

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

Granting a loan

Under the loan agreement, the property (things or money) is transferred into the ownership of the borrower, and he undertakes to return what was received in the same amount. In doing so, it is necessary to take into account possible tax liabilities.

In relation to this tax, it is important in what form the loan is provided. So, if it is issued in cash, then the obligation to pay VAT does not arise for the lender, since the ownership of the property does not pass to the borrower (subparagraph 15, paragraph 3, article 149 of the Tax Code of the Russian Federation). In addition, the lender is not obliged in this case to issue an invoice (letter of the Ministry of Finance of Russia dated 22.06.2010 No. 03-07-07 / 40).

However, if the lender is ready for disputes with the tax authorities, it is possible not to pay VAT when issuing a non-cash loan. One can justify his position by the fact that the transfer of property under a loan agreement is of a returnable nature, which follows from Article 807 of the Civil Code of the Russian Federation. Accordingly, when a non-cash loan is provided, the subject of the contract is not realized, therefore there is no VAT object. This position is confirmed by judicial practice - the resolution of the Federal Antimonopoly Service of the Moscow District of 23.04.2008 No. KA-A40 / 3008-08.

Income tax

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

Insurance premiums

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

Receiving interest under a loan agreement

The lender has the right to receive interest from the borrower on the amount of the loan issued by him, unless otherwise provided by agreement of the parties (clause 1 of article 809 of the Civil Code of the Russian Federation). With regard to these percentages, the following tax implications are worth considering.

Interest received by the lender for providing a loan in cash is not subject to VAT (subparagraph 15, paragraph 3, article 149 of the Tax Code of the Russian Federation, letter of the Federal Tax Service of Russia for Moscow dated 18.12.2007 No. 19-11 / 120883). In this case, interest is the cost of services for the provision of a loan in cash, therefore, for the amount of interest, the lender is obliged to issue an invoice with the inscription or stamp “Without tax (VAT)”. This opinion was expressed by officials in the letter of the Ministry of Finance of Russia dated 22.06.2010 No. 03-07-07 / 40.

In addition, if the lender, along with the provision of loans, carries out transactions subject to VAT, then on the basis of the provisions of paragraph 4 of Article 149 of the Tax Code of the Russian Federation, he must organize separate accounting (letters of the Ministry of Finance of Russia dated 30.11.2011 No. 03-07-07 / 78, Federal Tax Service of Russia dated 06.11.2009 No. 3-1-11 / [email protected]). For these purposes, to calculate the proportion specified in paragraph 4 of Article 170 of the Tax Code of the Russian Federation, only the amount of money in the form of interest under the loan agreement should be taken into account, and the amount of the loan itself does not need to be taken into account. Such recommendations are given in the letter of the Ministry of Finance of Russia dated 02.04.2009 No. 03-07-07 / 27.

Please note: the lender does not have the right to deduct input VAT on goods (works, services) that he uses in activities related to the issuance of loans. These amounts are taken into account in the cost of goods (works, services). This is the position of the financial department, expressed in the letter of the Ministry of Finance of Russia dated 02.08.2012 No. 03-07-11 / 214. At the same time, if the share of non-taxable transactions does not exceed the 5 percent threshold established in paragraph 9 of paragraph 4 of Article 170 of the Tax Code of the Russian Federation, then the lender has the right not to keep separate accounting and apply the deduction of the VAT shown in full. This opinion is shared by the judges - Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of June 21, 2012 No. 2676/12.

As for interest on loans issued in non-cash form, the lender must include their amount in the VAT tax base on the basis of subparagraph 2 of paragraph 1 of Article 162 of the Tax Code of the Russian Federation. This obligation arises when the interest is actually received. In this case, the tax is calculated at the estimated rate (clause 4 of article 164 of the Tax Code of the Russian Federation). The lender must issue an invoice for the interest received in one copy and register it in the sales ledger (clause 18 of the Rules for maintaining the sales ledger used in calculating value added tax, approved by Decree of the Government of the Russian Federation of December 26, 2011 No. 1137).

Income tax

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

In the opinion of the regulatory authorities, interest on loan agreements, the term of which falls on more than one reporting period, is accounted for in income evenly at the end of the month of the corresponding reporting period, regardless of the timing and actual payment established in the agreement (letters of the Ministry of Finance of Russia dated September 17, 2012 No. 03-03-06 / 2/108, dated 15.06.2011 No. 03-03-06 / 1/345). At the same time, some courts believe that it is necessary to take into account the received interest in income only during the period of its actual receipt (decisions of the FAS of the Moscow District of 19.10.2012 No. A40-28488 / 12-140-137, FAS of the West Siberian District of 06.04.2011 No. A45-8330 / 2010).

In addition, we will consider the features of accounting for interest in order to tax profits on monetary loans denominated in foreign currency.

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

If the lender uses the accrual method, then when the exchange rate fluctuates between the accrued and received interest on the loan in rubles, positive or negative differences arise. Positive differences are formed with an increase in the exchange rate of a foreign currency, negative - with a decrease in the exchange rate.

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

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

The loan is issued in foreign currency and interest is paid in foreign currency

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

When applying the cash method, differences do not arise, since the recalculation is made only on the date of actual receipt of the amounts of interest paid (clause 2 of article 273 of the Tax Code of the Russian Federation).

Personal income tax

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

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

Note:
* Read about the execution of the loan agreement, the calculation of material benefits and personal income tax in the program "1C: Salary and personnel management 8" in No. 12 (December) "BUKH.1C" for 2013.

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

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

At the same time, material benefit does not arise if an individual has the right to receive a property deduction, which is confirmed by the tax authority (clause 1 of clause 1 of article 212, article 220 of the Tax Code of the Russian Federation). In addition, if in the tax period the interest on the loan is not paid, then income in the form of material benefits subject to personal income tax does not arise (letter of the Ministry of Finance of Russia dated 01.02.2010 No. 03-04-08 / 6-18).

The date of actual receipt of income in the form of material benefits is determined as the day the taxpayer pays interest on the borrowed funds received (subparagraph 3 of paragraph 1 of article 223 of the Tax Code of the Russian Federation). If the date of payment of interest specified in the loan agreement does not coincide with the actual date of payment of interest by the borrower, the date of receipt of income by an individual is the date of actual payment of interest (letter of the Ministry of Finance of Russia dated 15.02.2012 No. 03-04-06 / 6-39).

If interest on a loan is not paid by the borrower, but is added to the amount of the principal debt, the dates of receipt of income in the form of material benefit will be the dates of accrual of interest to the amount of the principal debt (letter of the Ministry of Finance of Russia dated 08.10.2010 No. 03-04-06 / 6-247) ...

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

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

Insurance premiums

Unlike the taxation of personal income tax, the material benefit of an individual borrower arising from savings on interest is not subject to insurance premiums. The fact is that it is not a payment accrued in favor of an employee within the framework of labor or civil law relations, the subject of which is the performance of work or the provision of services (part 1, part 3 of article 7 of the Federal Law of 24.07.2009 No. 212 -FZ, clause 1 of article 5 of the Federal Law of 24.07.1998 No. 125-FZ).

Providing an interest-free loan

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

Personal income tax

When issuing an interest-free loan to an individual, the latter receives taxable income in the form of material benefits from savings on interest taxed at a rate of 35 percent (letters of the Ministry of Finance of Russia dated 25.07.2011 No. 03-04-05 / 6-531, dated 16.05.2011 No. 03- 04-05 / 6-350, resolution of the Federal Antimonopoly Service of the West Siberian District dated 01.08.2012 No. A27-9497 / 2011).

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

If during the tax period the loan is not repaid, income in the form of material benefits from savings on interest in the specified tax period does not arise.

Consequently, in this case, the lender does not have the duties of a tax agent. This is stated in the letter of the Ministry of Finance of Russia dated 01.02.2010 No. 03-04-08 / 6-18.

The tax base is the amount of interest calculated on the basis of 2/3 of the refinancing rate of the Central Bank of the Russian Federation in effect on the date of receipt of income (letter of the Ministry of Finance of Russia dated 09.08.2010 No. 03-04-06 / 6-173).

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

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

If the lender is unable to withhold tax, then he should inform the taxpayer and the tax authority at the place of his registration in writing (clause 5 of article 226 of the Tax Code of the Russian Federation). This must be done no later than one month from the date of the end of the tax period in which the relevant circumstance arose.

Insurance premiums

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

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

Receiving the subject of pledge

The law allows the parties to the loan agreement to establish additional guarantees for the repayment of the loan amount to the lender. Very often, for such security of the obligation under the loan agreement, the pledge of the property owned by the borrower is used (Articles 334 - 358 of the Civil Code of the Russian Federation). Consider the resulting tax implications for the lender.

Upon receipt of the subject of pledge, VAT settlements related to this operation do not arise from the lender, since the ownership of such property remains with the borrower.

Income tax

The operation of obtaining the collateral does not entail any tax consequences for the lender.

Property tax

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

Transport tax

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

Debt forgiveness

The lender has the right to forgive the borrower both the principal amount of the debt and the debt to pay interest. This has the following implications for taxes and contributions.

Income tax

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

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

In turn, the amount of the principal debt that the lender forgave the borrower is not taken into account in expenses for tax purposes (letter of the Ministry of Finance of Russia dated 31.12.2008 No. 03-03-06 / 1/728).

Personal income tax

The amount of the principal debt, as well as the amount of debt in the form of interest on the loan, forgiven to an individual, are subject to personal income tax at a rate of 13 percent. This position of officials is reflected in the letter of the Ministry of Finance of Russia. This means that the lender is obliged to calculate and withhold personal income tax from the amount of the forgiven debt, including interest on the loan. Such an obligation arises at the time a decision is made to forgive a debt to an individual.

If the lender is unable to withhold tax, then he should inform the taxpayer and the tax authority at the place of his registration in writing (clause 5 of article 226 of the Tax Code of the Russian Federation). As we have already noted, this must be done no later than one month from the date of the end of the tax period in which the corresponding circumstance arose.

Please note that when the debt is forgiven, income in the form of material benefits from savings on interest for using a loan does not arise for the borrower (letter of the Ministry of Finance of Russia dated 11.04.2012 No. 03-04-06 / 3-106).

Insurance premiums

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

So, if the employer forgives the borrower employee part of the debt under the loan agreement, then most likely this part of the amount will have to be included in the base for assessing contributions as a payment in the framework of the employment relationship. This is indicated by the inspection bodies (letters of the Ministry of Health and Social Development of Russia dated 05/17/2010 No. 1212-19, dated 05/21/2010 No. 1283-19).

If the lender organization is ready for disputes, then it will be necessary to prove that the issuance of a loan to an employee and the termination of obligations to repay it by forgiving the debt take place outside the framework of labor relations will have to be done in court (Resolutions of the FAS of the Volga District of May 21, 2013 No. A65-18287 / 2012, dated 08/29/2013 No. A65-18176 / 2012). Note that the chances of a positive outcome of the case in this case are great.

Loan repayment

If a loan issued in a non-cash form is returned, then the operation of transferring tangible assets by the borrower to the lender should be considered an operation for their sale. Accordingly, it is subject to VAT (Resolution of the Federal Antimonopoly Service of the Urals District dated January 17, 2008 No. F09-11146 / 07-C2).

As a result, upon repayment of the loan in kind, the borrower presents the VAT to the lender and issues an invoice. In this case, the lender has the right to deduct the VAT charged in accordance with the generally established procedure (Articles 171, 172 of the Tax Code of the Russian Federation).

Income tax

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

Let us dwell on the peculiarities of accounting for tax purposes of the return of loans issued in foreign currency.

The loan is issued in foreign currency, and is returned in rubles

If the exchange rate of foreign currency changes, the amount received in rubles from the borrower to repay the principal debt may differ from the amount previously given to the borrower.

As a result, the lender can receive from the borrower either more or less amount than it issued. Such differences are not cumulative, since they are not related to the sale of goods (works, services), property rights. Therefore, negative differences cannot be taken into account in expenses on the basis of subparagraph 5.1 of paragraph 1 of article 265 of the Tax Code of the Russian Federation.

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

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

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

Loan repayment and interest payment at the expense of the collateral

If on the day of the due date for the fulfillment of the obligation secured by the pledge, the performance did not occur or the obligation was performed improperly, then the lender has the right to foreclose on the subject of the pledge (clause 1 of Article 348 of the Civil Code of the Russian Federation).

When transferring the pledged property to the lender, the borrower is obliged to calculate VAT and issue an invoice (subparagraph 1 of paragraph 1 of article 146 of the Tax Code of the Russian Federation, paragraph 3 of article 168 of the Tax Code of the Russian Federation). The lender has the right to accept input VAT for deduction in accordance with the generally established procedure.

Income tax

If the subject of the pledge has passed into the ownership of the lender in payment of the principal debt, then the property received is not the income of the lender (subparagraph 10 of paragraph 1 of article 251 of the Tax Code of the Russian Federation).

But the property received on account of repayment of interest arrears, he must reflect in the structure of non-operating income (clause 6 of article 250 of the Tax Code of the Russian Federation).

Property tax

The value of the subject of pledge, which has passed into the ownership of the lender, is subject to property tax from the moment it is reflected by the lender in the accounting records as part of fixed assets (Article 374 of the Tax Code of the Russian Federation).

At the same time, movable property registered as fixed assets from 01.01.2013 is not recognized as an object of taxation on property (subparagraph 8 of paragraph 4 of article 374 of the Tax Code of the Russian Federation).

Transport tax

If a car was the subject of a pledge, then the lender's obligation to pay transport tax appears from the moment he registers the vehicle with the traffic police (Article 357.

Income tax

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

The lender, using the accrual method, includes penalties in income at the time of their recognition by the debtor or on the date of entry into force of the court decision (subparagraph 4 of paragraph 4 of article 271 of the Tax Code of the Russian Federation).

The moment the debtor recognizes the penalties is the date of his signing a document on consent to the penalties. This conclusion was reached by the judges in the resolution of the FAS of the Volga District of August 24, 2010 No. A55-38021 / 2009.

If there is no fact that the debtor has recognized the obligation to pay the sanctions, expressed in the payment of sanctions or in a written confirmation of the recognition of the amount, the lender does not have income for the purposes of taxation of profits (letter of the Ministry of Finance of Russia dated 03.04.2009 No. 03-03-06 / 2 / 75, dated 07.11.2008 No. 03-03-06 / 2/152).

The lender, who recognizes income on a cash basis, includes penalties in income only after their actual payment by the borrower (clause 2 of article 273 of the Tax Code of the Russian Federation).

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

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

Taxation of personal income tax when granting a loan to an individual: is it necessary to take into account the refinancing rate when taxing personal income tax on the amount of interest on a loan - read the article.

Question: An individual provided the organization with an interest-bearing loan (10.5%). Personal income tax from the amount of interest received is paid from the entire amount of interest or from the amount in excess of the refinancing rate?

Answer: Personal income tax must be withheld from the entire amount of interest. The amount of income in the form of interest on a loan when calculating personal income tax can be reduced by standard tax deductions.

Justification

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

Loan received from a citizen

If an organization has received an interest-bearing loan from an employee (or another citizen), then upon payment of interest to him, the person will have taxable income (subparagraph 1 of paragraph 1 of article 208, paragraph 1 of article 209 of the Tax Code of the Russian Federation). Regardless of which taxation system is used by the borrowing organization, in this case it is necessary to fulfill the duties of a tax agent for personal income tax (clause 1 of article 226 of the Tax Code of the Russian Federation). Calculate and withhold personal income tax from the income paid to the lender (clause 1 of article 210, clause 1, 3 of article 224, clause 2 of article 226 of the Tax Code of the Russian Federation). * A similar procedure applies if instead of interest, the agreement provides for indexation of the loan ... That is, if, when the loan is repaid, the organization indexes the amount of its debt and pays the employee additional income. In this case, personal income tax will need to be withheld from the difference between the amount of the loan received and the amount that is returned to the employee, taking into account indexation. This is stated in the letter of the Ministry of Finance of Russia dated September 8, 2011 No. 03-04-06 / 6-213.

Situation: whether it is possible to provide an employee with a standard tax deduction when paying interest on a loan received from him

Yes, you can, but only on the income of a resident employee, which is subject to personal income tax at a rate of 13 percent. *

This is due to the fact that the standard deductions provided for by article 218 of the Tax Code of the Russian Federation can be provided only to a resident and only in relation to any income that is subject to personal income tax at the specified rate (clause 3 of article 210 of the Tax Code of the Russian Federation). This includes the interest on the loan.

In this case, you need to take into account the restrictions on income. The deductions provided for by subparagraph 4 of paragraph 1 of Article 218 of the Tax Code of the Russian Federation, the organization has the right to provide until the total income of the employee, subject to personal income tax at a rate of 13 percent, calculated on an accrual basis from the beginning of the year, does not exceed 280,000 rubles.

The organization is not entitled to provide standard tax deductions to resident employees whose income is taxed at a different rate, as well as to non-resident employees (clause 4 of article 210 of the Tax Code of the Russian Federation).

An example of calculating personal income tax from interest on a loan provided by an employee (resident), whose income is taxed with personal income tax at a rate of 13 percent

On February 1, the only founder (he is also the general director) of OOO "Trading Firm" Hermes "" A.V. Lvov provided the company with a cash loan in the amount of 150,000 rubles. The loan was issued for 15 days at 25 percent per annum. Lviv is a resident of Russia.

The interest amount is RUB 1,541. (150,000 rubles * 25%: 365 days * 15 days).

The official salary of Lviv is 40,000 rubles. In February, he enjoys the right to receive a standard deduction for a child in the amount of 1,400 rubles. On February 16, the organization returned the loan amount to Lvov and paid the accrued interest.

Personal income tax withheld from the amount of interest in the amount of:
(1541 rubles - 1400 rubles) * 13% = 18 rubles.

Taking into account the salary for February, the total income of Lviv for the period from the beginning of the year amounted to 81,541 rubles. (40,000 rubles * 2 months + 1541 rubles).

The amount of personal income tax, which must be paid in addition from the income of Lviv when paying salaries for February, is:
(RUB 40,000 + (RUB 1,541 - RUB 1,400)) * 13% - RUB 18 = 5200 RUB

Alexander Sorokin answers,

Deputy Head of the Operational Control Directorate of the Federal Tax Service of Russia

“CCP should be used only in cases where the seller provides the buyer, including his employees, with a deferral or installment plan for payment for his goods, works, services. These cases, according to the Federal Tax Service, relate to the provision and repayment of a loan to pay for goods, works, services. If an organization issues a cash loan, receives a return of such a loan, or receives and returns a loan itself, do not use the cashier. When exactly it is necessary to punch a check, see the recommendations. "