The minimum interest on the loan. Minimum interest on a loan between legal entities What interest rate to specify in the loan agreement

11.10.2016 "Financial Director", October 2016

Anna Manaenkova
lawyer

A loan agreement between legal entities helps one company to raise funds, and another - to make money on it. There are important conditions to pay attention to in order to conclude a secure loan agreement.

According to civil law, a loan agreement is an agreement between one party (lender) on the transfer of money or other thing into the ownership of the other party (borrower). The borrower undertakes to return the same amount of money or an equal amount of other things of the same kind and quality received by him (note that you can also conclude an interest-free loan agreement between a legal entity and an individual).

Clearly write down the subject of the loan agreement

The condition on the subject of the contract is essential, therefore it must be agreed upon by the parties (clause 1 of article 432 of the Civil Code of the Russian Federation). If the court comes to the conclusion that the subject of the agreement is inconsistent, it will be recognized as not concluded and will not generate legal consequences for the parties (resolution of the FAS of the East Siberian District of 08/09/2010 in case No. A10-3789 / 2009; resolution of the FAS of the Ural District of 19.02.2008 F09-741 / 08-C5 in case No. A60-17030 / 2007-C2; resolution of the FAS of the Volgo-Vyatka District of 27.01.2012 in case No. A17-6065 / 2010).

Guided by the rules of Articles 140 and 317 of the Civil Code of the Russian Federation (hereinafter - the Civil Code of the Russian Federation), the parties can indicate the amount of the loan in two ways:

• in a fixed amount, indicating the currency of the loan (Russian rubles or a certain foreign currency, if the parties are entitled to carry out foreign exchange transactions);
• in the calculated value, i.e. in the equivalent of the amount in foreign currency.

Record the fact of transfer of borrowed funds

By virtue of Article 807 of the Civil Code of the Russian Federation, a loan agreement is concluded from the moment the lender transfers money or other things to the borrower. Such confirmation may be a receipt, a payment order indicating the purpose of the payment, an incoming cash order, a receipt, or another document, duly executed. If it is impossible to prove the fact of transferring the loan amount under the agreement, then such an agreement will be considered not concluded (resolution of the FAS of the West Siberian District of 09.10.2013 in case N A03-12279 / 2012).

At the same time, if the agreement does not contain a properly agreed condition on the amount of the loan, the presence and content of documents certifying the fact that a certain amount has been transferred to the borrower (payment orders for the transfer of funds by the lender to the borrower, cash outflow orders, receipts to cash receipts and etc.). The amount of the loan will be determined from the content of these documents, and the agreement will be considered concluded for the amount that was actually transferred (clause 2 of article 433, paragraph 2 of clause 1 of article 807, clause 2 of article 808, clause 3 812 of the Civil Code of the Russian Federation, Definitions of the Supreme Arbitration Court of the Russian Federation of 03.07.2008 N 8032/08 in case N A53-5796 / 07-C2-6).

Article 812 of the Civil Code of the Russian Federation provides for the right of the borrower to challenge the agreement due to his lack of money, proving that money or other things have not actually been received by him from the lender or received in less quantity than indicated in the agreement. When money or things are actually received in less than specified in the contract, the contract is considered concluded for this amount of money or things. It should be noted that challenging the loan agreement due to its lack of money is an exclusive feature of the borrower under the loan agreement.

Specify in the agreement the amount of interest paid by the borrower

Interest under the loan agreement, paid in the amount and in the manner specified in clauses 1 of Article 809 of the Civil Code of the Russian Federation, is a payment for the use of funds provided by the lender (clause 15 of the Resolution of the Plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation of 08.10.1998 N 13/14 "On the practice of applying the provisions of the Civil Code of the Russian Federation on interest for the use of other people's funds ").

If a loan agreement between legal entities does not contain a condition on interest on the loan amount, it is recognized as compensated (clause 3 of article 424 of the Civil Code of the Russian Federation). The lender has the right to demand from the borrower the payment of a fee for use. The amount of remuneration will be determined as a percentage of the loan amount at the bank interest rate (refinancing rate) in effect on the day the borrower pays the amount of the debt (part of it) at the location (and if the lender is an individual, at the place of residence) of the lender ( Clause 1 of Art. 809 of the Civil Code of the Russian Federation).

When agreeing on the amount of interest for the use of the loan amount significantly exceeding the refinancing rate (for ruble loans) or the interest rate on foreign currency loans (for loans in foreign currency), it is necessary to understand the risks that may arise. The legislation of the Russian Federation does not establish a limitation of the maximum amount of interest that can be established in the agreement by the parties, however, the borrower can apply to the court with a claim to invalidate the loan agreement due to its enslavement (clause 3 of article 179 of the Civil Code of the Russian Federation). The inclusion of this condition in the agreement will be considered an abuse of the right by the lender. The interest can be reduced by the court, and the lender will receive an amount less than that provided for by the terms of the contract.

Judicial practice in this matter is not unambiguous:

• the establishment of a high interest for the use of borrowed funds is an abuse of the right, in which the court can reduce the amount of interest (resolution of the FAS of the Volgo-Vyatka District of September 26, 2006 in case N А43-3546 / 2006-4-74, resolution of the Arbitration Court of the North Caucasus District of 01/26/2016 N F08-9167 / 2015 in case N A53-3119 / 2015, resolution of the Federal Antimonopoly Service of the North Caucasian District of 03/01/2001 N F08-416 / 2001);
• setting a high interest for the use of borrowed funds is not an abuse of the right (resolution of the FAS of the East Siberian District of January 28, 2008 N A10-2382 / 07-F02-9946 / 07 in case N A10-2382 / 07, resolution of the FAS of the North-Western District of 20.05.2003 N А13-3957 / 02-12, resolution of the Federal Antimonopoly Service of the North Caucasian District of 04.05.2012 in case N А32-21318 / 2011);
• the establishment of a high interest for the use of borrowed funds is not an abuse of the right, unless it is proven that this condition is included in the agreement at the insistence of the lender (Resolution of the Federal Antimonopoly Service of the North Caucasus District of 20.06.2006 N F08-2680 / 2006 in case N A61-2402 / 2005-3 ).

Procedure and term for repayment of borrowed funds

At the discretion of the parties, the procedure and term for the return of borrowed funds can be determined by the loan agreement, otherwise the provisions of paragraph 2 of clause 1 of Art. 810 of the Civil Code of the Russian Federation.

Judicial practice on this issue reads:

• if the agreement provides for the obligation of the borrower to return the loan amount in parts before a certain period, but the direct procedure for repayment is not agreed, then the borrower must return the funds at a time at the end of the term (definition of the Supreme Arbitration Court of the Russian Federation of 23.07.2009 N VAS-9392/09 in case N A65- 19764/2008-SG1-5);
• if the loan agreement does not specify the term for the repayment of the loan amount, but the term of the agreement is determined, then such a period can be recognized by the court as the term for the repayment of the loan amount (resolution of the Federal Antimonopoly Service of the Moscow District of 10/14/2010 N KG-A41 / 12023-10 in case N A41- 1940/10);
• if different terms for the return of funds are indicated in the copies of the agreement or in its copies (in the absence of a genuine copy of the agreement), the agreement is considered concluded if there is evidence confirming the transfer of the loan amount. The term for repayment of the loan amount in this case is determined by the rules of clause 1 of Art. 810 of the Civil Code of the Russian Federation, that is, the loan amount must be returned within 30 days from the day the demand is submitted by the lender (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of 05.04.2011 N 16324/10 in case N A40-146172 / 09-42-745).

Fix in the loan agreement responsibility for non-fulfillment of the conditions for the return

The responsibility of the parties for non-fulfillment of the conditions for the return of the loan amount is regulated by Article 395 of the Civil Code of the Russian Federation. At the same time, legal entities can be independent in securing responsibility for improper performance of a monetary obligation in the loan agreement, one of two ways of calculating interest:

1. A simple way is to accrue interest only on the outstanding loan amount.
2. The hard way ("compound interest") is the accrual of interest not only on the loan amount, but also on the amount of interest accrued but not paid on time. This method of calculation is used to stimulate the borrower to repay the principal debt on time.

Judicial practice on the admissibility of accrual of "compound interest" under a loan agreement between legal entities is not unambiguous:

• the accrual of a penalty or interest for the use of someone else's funds in the amount of interest for the use of a loan is permissible if provided for by the agreement (resolution of the FAS of the Volgo-Vyatka District of 13.04.2010 in case No. -5624/11 in case No. A56-92572 / 2009, Resolution of the Federal Antimonopoly Service of the Moscow District dated October 29, 2012 in case No. A40-21699 / 12-97-101);
• the accrual of a penalty or interest for the use of someone else's money in the amount of interest for the use of a loan is permissible regardless of the presence of such a condition in the agreement. (Resolution of the Federal Antimonopoly Service of the Moscow District of August 27, 2009 N KG-A40 / 7497-09-B in case N A40-14147 / 09-97-152, resolution of the Tenth Arbitration Court of Appeal dated March 31, 2011 in case N A41-31454 / 10) ;
• the accrual of a forfeit or interest for the use of someone else's money in the amount of interest for the use of a loan is unacceptable, regardless of the presence of such a condition in the loan agreement (resolution of the Federal Antimonopoly Service of the North Caucasus District of 05.24.1999 N F08-888 / 99).

Paragraph 13 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 13.09.2011 No. 147 states: “due to the fact that an increase in interest for using a loan in the event of a borrower's violation of the obligation to repay a loan is a measure of the debtor's liability for violation of an obligation, the court, taking into account the circumstances of the case, has the right on the basis of a reasoned statement by the defendant, to reduce the size of the said interest in accordance with Article 333 of the Civil Code of the Russian Federation. This position is also reflected in the resolution of the FAS of the Far Eastern District of 04.05.2012 N F03-1391 / 2012 in case N A59-3018 / 2011, the decision of the Arbitration Court of the West Siberian District of 14.10.2015 N F04-24556 / 2015 in the case N A03 -13567/2014, Resolution of the Federal Antimonopoly Service of the Moscow District of 19.08.2011 N KG-A40 / 7099-11 in case N A40-99951 / 10-31-900, etc.

It should be noted that by virtue of Article 808 and paragraph 2 of Article 434 of the Civil Code of the Russian Federation, a loan agreement between legal entities must be concluded in writing. It can be sent by fax, regular mail or e-mail, allowing you to reliably establish that the document comes from a party to the contract.

Summing up, I would like to note that when concluding a loan agreement between legal entities, it is also necessary to make sure that there are no grounds for recognizing the agreement as invalid in the future (§ 2 of Chapter 9 of Subsection 4, Section 1 of the Civil Code of the Russian Federation). In addition, the borrower needs to objectively assess his strength, that is, to really understand that after a certain amount of time he will have the opportunity to return the amount of debt and pay interest.

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

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Any enterprise sometimes needs to raise additional funds. They may be needed to purchase a product, update or purchase funds, or to get out of a difficult situation.

It is not easy to get a loan for a business and money is often sought from other companies that have available funds.

Affiliated persons or long-term partners often become lenders, but specialized companies can also act.

The main provisions of the conclusion

A loan is still not a loan, although it has certain similarities with a banking product. Under the contract, one company can borrow money or transfer money or things that have generic characteristics (brand, model) to another.

Agreements can provide for the payment of remuneration to the creditor for the use of funds or be interest-free. Discussion of specific terms of the transaction should take place through negotiations before the conclusion of the contract.

Any legal entity can issue loans. There are specialized organizations on the market that are ready to provide financial support to various types of business.

Also, it is not uncommon for loans to be obtained from other firms belonging to the group of companies or from partners with whom there are long-standing relationships.

The remuneration of the lender can be expressed as a percentage calculated for a certain period of use of funds, or expressed in a specific amount for the entire term of the agreement or a certain period of use of the borrowed property or money.

Necessary terms

The very procedure for issuing and obtaining loans is described in sufficient detail in the legislation and most firms do not experience big problems with the transaction.

But some specific terms do occur:

Requirements for the parties

If the parties to the transaction are two legal entities, then according to the legislation there is only one requirement.

An organization that acts as a borrower or lender must be officially registered, its activities must not be suspended, and no bankruptcy or liquidation procedures are carried out in relation to it.

Important! For some special institutions, the issuance of various loans may be completely prohibited or require additional permission from the founders. This moment is spelled out specifically in the Charter of the organization.

The lender can independently establish almost any requirements for borrowers, guided by its own internal policy.

Consider what conditions the borrower must meet in most cases:

• conducting business for at least 3-12 months;
• no losses;
• the absence of decisions on the suspension of activities against him;
• it should not be subject to bankruptcy or liquidation procedures;
• absence or minimum debt for various taxes, fees and other mandatory payments to the state.

In some cases, lenders may consider a borrower with debts for tax payments and other fees if he has an agreed installment plan for the payment of the debt with the appropriate government agency.

Legal acts

In general, the parties to a loan transaction between legal entities must be guided, first of all,.

It is it that contains the very concept of a loan, describes the possible types and main conditions that should be stipulated in the contract.

If a microfinance or microcredit organization acts as a lender, then their activities are also subject to the action of the Federal Law.

These organizations should also take into account various letters, decrees and orders of the Central Bank and the Ministry of Finance of the Russian Federation.

Video: loans and borrowings

Interest loan agreement between legal entities (sample)

According to the Civil Code, the parties can agree on all the terms of the transaction through preliminary negotiations.

This is usually the case if the lender is not a professional microfinance business lending company.

The parties must record all the results of the negotiations in a paper agreement, which will further regulate the relationship between them associated with the transaction.

The agreement must include the following information:

1. Details of the parties.
2. Subject of the contract (description of things, their value or a specific amount of a cash loan).
3. The amount of the lender's remuneration (if the contract is interest-bearing).
4. Return procedure.
5. Loan term (if the contract is not termless).
6. Penalties.
7. Signatures of the parties.

The agreement may also include various additional conditions related to security and purposes of the loan, the order of early repayment or extension of the term, and others.

All parties should discuss them at the stage of negotiations and only then include them in the agreement.

You can download a sample interest loan agreement between legal entities here.

What are the rights and obligations of the parties

It is in the agreement that the parties fix all the rights and obligations arising for each of them as a result of the conclusion of a loan transaction. Usually, the main responsibilities fall on the borrower, while the lender has only the rights.

Consider what basic rights a lender can obtain under an agreement:

We also present the obligations and rights of the borrower, which are most often found in contracts:

In some cases, the contract may provide for other rights and obligations of the parties. For example, a borrower may be required to provide complete records of its business activities to the lender every quarter.

Payment Schedule

If the agreement provides for more than 1 payment for debt repayment and interest payments, and it is not of an unlimited nature, then a payment schedule must be drawn up to it.

This document fixes a specific amount and the date by which it must be transferred by the borrower to the lender.

Important! The payment schedule is an integral part of the contract and must be signed by both parties.

In case of partial early repayment, the amount of payments is subject to change and the parties must agree and sign a new schedule.

If an unlimited loan is issued, then the borrower must repay it within 30 days from the date of receipt of the corresponding request from the lender in writing. Interest, if any, must be paid in accordance with the terms of the agreement.

Debt collection under a transaction

Lenders are often faced with a situation where the borrower stops paying under the contract.

In this case, they have the right to charge a fine for each day of delay and demand an immediate return of all loan amounts and interest for the actual time of using the borrowed funds. But borrowers are in no hurry to fulfill such requirements voluntarily.

In the event that payments under the loan agreement have ceased, the lender has several options to collect the amount of the debt:

Each of the options has its own advantages and disadvantages. For example, going to court may require a lot of time, and the effect of collection will not always be comparable to the expected one, since the borrower may simply not have the funds and property sufficient to pay off the debt.

When attracting collectors and lawyers, the lender will have to spend money on their services and it is not always possible to predict the result either.

Often, concluding an assignment agreement is the easiest option for a creditor to ensure that at least part of the debt is repaid by transferring it to professional debt collectors.

But it should be understood that most likely no one will buy a contract for 100% of the loan amount, and you will have to put up with a rather big discount.

Minimum and maximum percentage

The legislation of the Russian Federation practically does not limit the minimum and maximum interest rates applied on loans between legal entities.

Unlike consumer loans, a specific rate is agreed upon by the parties at the negotiation stage, although some points should be taken into account.

An interest rate that is too high can lead to the fact that the transaction can be recognized as enslaving, and subsequently not valid. This is typical for ministries of justice issued at several hundred percent per annum.

If the interest under the agreement is absent or is lower than the refinancing rate by more than 20%, the option is not excluded that it will be necessary to documentarily prove that the borrower did not have material benefits from such savings, and the lender to justify the economic sense.

In some cases, the parties to the transaction will have to defend their position in court.

Offers from organizations

There are a number of companies that provide loans to legal entities. Usually these are microfinance and microcredit companies.

Some of them work within the framework of government programs to help SMEs, and can offer rates that are quite comparable to those in banks or even lower, and the conditions will be much simpler.

It should be borne in mind that often, when obtaining a loan, it is required to provide a surety from the business owners and it is highly desirable to have liquid security (goods in circulation, real estate).

Comment. The lower the rate, the more attention is paid to the verification of the borrowing company and the more documents are requested.

Let's compare in the table the offers of some organizations for loans for companies:

Tax implications

Often, the taxation of interest-bearing loans between legal entities raises many questions, especially if the creditor is not a specialized company, but a legal entity that has decided to make a one-time financial investment in a particular company.

In the simplest case, the borrower simply includes the interest on the loan in expenses and reduces his taxable base, and the lender already includes them in profit, thus increasing the taxable base, pays income tax from them, etc. or a single tax when applying the simplified tax system. But a seemingly simple scheme in practice often fails.

Some tax inspectorates, upon discovering the fact of obtaining a loan with a very low interest rate, begin to try to prove that the borrower has a material benefit from saving on interest, which should be taken into account as profit.

Determination of the minimum interest under a loan agreement between commercial organizations, which does not contradict the current legislation.

Question:What is the minimum% possible from the position of STI under a loan agreement between commercial organizations?

Answer:

The terms of the loan agreement (interest rate, terms, return procedure) are determined by the parties in the loan agreement and are not limited by law.

Justification

Does the borrower need to take into account non-operating income from savings on interest when calculating income tax when receiving an interest-free loan

"There is no need.

Unpaid interest is not recognized as income of the borrower. The amount of the received interest-free loan is also not taken into account when calculating income tax (and subparagraph 10 of clause 1 of article 251 of the Tax Code). Therefore, when using an interest-free loan, there is no need to increase the tax base by the amount of unpaid interest.

The legitimacy of this approach is confirmed by the controlling departments (letters of the Ministry of Finance dated 11.05.2012 No. 03-03-06 / 1/239, dated 18.04.2012 No. 03-03-10 / 38, dated 02.04.2010 No. 03-03-06 / 1 / 224) and arbitration practice (see, for example, Resolutions of the Presidium of the Supreme Arbitration Court of 03.08.2004 No. 3009/04, FAS of the Volga District of 25.11.2009 No. A55-6151 / 2009, of the North Caucasian District of 28.03.2008 No. F08-870 / 08-529A).

Is it necessary to determine income if the borrower and the lender are interdependent persons? As a general rule, taxation should take into account any income that could be obtained in comparable transactions between non-dependent persons (clause 1 of article 105.3 of the Tax Code, letter of the Ministry of Finance dated 24.02.2012 No. 03-01-11 / 1-15). To determine the amount of these incomes, you need to compare the conditions for obtaining interest-bearing and interest-free loans. However, for the borrower, such a comparison does not make sense: he cannot receive any income upon receipt, use and return of both interest-bearing and interest-free loans. "

How to determine the market price of goods (works, services)

“According to the Civil Code of the Russian Federation, any transaction is considered onerous, unless otherwise follows from legislation or an agreement (clause 3 of article 423 of the Civil Code of the Russian Federation). The transaction is paid at the price established by agreement of the parties (clause 1 of article 424 of the Civil Code of the Russian Federation). From the standpoint of civil law, this price is recognized as a market price. If the contract does not specify the value of the transaction, it is paid at the price that is usually charged for similar goods (works, services) under comparable circumstances (clause 3 of article 424 of the Civil Code of the Russian Federation).

What is market price

What is the market price under tax law

In tax legislation, the determination of the market price depends on whether the transaction is recognized as controlled or not. If a transaction is made between non-dependent persons, then for tax purposes the market price is recognized as the contract price (clause 1 of article 105.3 and clause 1 of article 105.14 of the Tax Code of the Russian Federation). The compliance of the prices used in transactions with the market level is monitored by representatives of the tax service during special checks. Through routine inspections, inspectors can also exercise such controls if the market price is required to calculate a specific tax.

The contract price applied in a controlled transaction is recognized as market price:

if it corresponds to the level of prices regulated by the state, or is agreed with the FAS of Russia (taking into account the specifics specified in the Tax Code);

if it corresponds to the price determined by an independent appraiser (in transactions where an appraisal is required);

if it is established in accordance with the pricing agreement concluded with the Federal Tax Service of Russia;

if it is established in accordance with special rules for determining prices for tax purposes, provided for in separate chapters of Part 2 of the Tax Code. For example, for calculating profit tax, the market price of securities is recognized as the price determined in accordance with the Tax Code (letter of the Ministry of Finance of Russia dated August 29, 2012 No. 03-03-06 / 1/436);

if the deal was concluded based on the results of exchange trading.

This procedure follows from the provisions of clauses 8-12 of Article 105.3 of the Tax Code ”.

"Principle of income comparison

How to determine if the negotiated price is at the market level

information on prices (limits of price fluctuations) and exchange quotes, which are contained in official sources of information of state authorities and local authorities (in particular, in the field of pricing regulation and statistics, for example, FAS Russia, Rosstat of Russia, etc.);

information on prices (limits of price fluctuations) and exchange quotations, which are contained in information sources of foreign states;

information on prices (limits of price fluctuations) and exchange quotes contained in other published and (or) publicly available publications and information systems;

data from price information agencies;

information about the organization's own transactions with non-related parties.

If the organization does not find (find not enough) the necessary information among the named sources, then the data of accounting and statistical reporting of other organizations can be used. This data can be obtained from the following sources:

publicly available Russian and foreign print media;

public information systems;

official websites of Russian and foreign organizations.

This procedure is provided for by the provisions of clauses and article 105.6 of the Tax Code.

After the organization has selected the data necessary to match the transaction (or, conversely, has ascertained their absence (insufficiency)), determine the market price using one of the following methods:

The organization has the right to apply any of these methods (both separately and in combination with several methods). It should be borne in mind that in addition to transactions for the acquisition of goods subject to resale, the method of comparable market prices is of the highest priority. However, this method can be used when the organization has all the necessary information. If such information is not available or insufficient, you can use other methods for determining the market price. For this purpose, it is necessary to choose exactly the method (those methods) that more objectively characterizes the correspondence of the contract price to the market level. In addition, other methods can also be used when the market price of a group of similar transactions between related parties is determined.

On what conditions is it possible to provide a loan between legal entities

"Question: on what conditions is it possible to provide a loan between legal entities. Is it possible to provide an interest-free loan or is it necessary to set a minimum percentage?

Answer: the terms of the loan agreement (interest rate, timing, return procedure) are determined by the parties in the loan agreement (Art., Civil Code of the Russian Federation) and are not limited by law. A loan agreement between legal entities must be concluded in writing (Art. Civil Code of the Russian Federation).

Unlike a loan agreement, which is onerous (Article of the Civil Code of the Russian Federation), for a loan agreement, the payment of interest is not a prerequisite. The loan agreement is considered to be interest-free, unless otherwise expressly provided in it, in certain paragraph 3 of Art. 809 of the Civil Code of the Russian Federation in cases. Many organizations indicate a small percentage in their loan agreements, and some, to avoid unnecessary problems with tax, indicate a percentage equal to the refinancing rate. For a long time, there has been controversy over whether non-operating income arises when one legal entity receives an interest-free loan from another. The use of funds under a loan agreement without charging interest by the lender was erroneously assessed by the tax authorities as a legal relationship for the provision of services. In accordance with clause 5 of article 38 of the Tax Code, a service for tax purposes is recognized as an activity, the results of which do not have material expression, are sold and consumed in the process of carrying out this activity. The relationship under the loan agreement does not have such signs. According to clause 1 of article 807 of the Civil Code of the Russian Federation, under a loan agreement, one party (the lender) grants 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 to the lender other things he received of the same kind and quality. Consequently, after receiving a loan, the borrower always has an obligation to return the property to the lender.

In connection with the above, in this case there are no grounds for the occurrence of non-operating income in the form of material benefits (additional accrued interest on loans up to the level of the refinancing rate). This position is expressed in the Letters of the Ministry of Finance of Russia dated March 14, 2007. No. 03-02-07 / 2-44, dated February 20, 2006 No. 03-03-04 / 1/128, Letter of the Federal Tax Service of Russia dated January 13, 2005 No. 02-1-08 / [email protected], Letter of the Federal Tax Service of Russia for Moscow dated 03.11.2004 No. 26-12 / 71407. Arbitration practice on this issue has also developed in favor of taxpayers (provided in the justification).

Meanwhile, the existence of arbitration practice suggests that, despite all the explanations and letters, disagreements with the tax authorities on this issue still exist.

The rationale for this position is given below in the materials of Sistema Yurist.

1. Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 03.08.2004. No. 3009/04

"The use of funds under a loan agreement without charging interest by the lender was erroneously assessed by the court of cassation as a legal relationship for the provision of services.

In accordance with paragraph 5 of Article 38 of the Code, a service for tax purposes is an activity, the results of which do not have material expression, are sold and consumed in the process of carrying out this activity. The relationship under the loan agreement does not have such signs.

As for paragraph 3 of Article 149 of the Code, this paragraph contains a list of operations that are exempt from taxation of value added tax, and the fact that the operations on the provision of funds in a loan for these purposes, Chapter 21 of the Code "Value Added Tax" refers to as financial service cannot be applicable for other tax purposes.

The court of first instance reasonably indicated that the funds received by the company under the loan agreement on the terms of the return of the same amount cannot be considered as received free of charge.

Clause 2 of Article 248 of the Code provides that for the purposes of taxation of profits of organizations, property (work, services) or property rights are considered received free of charge if the receipt of this property (work, services) or property rights is not associated with the recipient's obligation to transfer property (property rights ) to the transferor (perform work for the transferor, provide services to the transferor).

According to paragraph 1 of Article 807 of the Civil Code of the Russian Federation, under a loan agreement, one party (the lender) grants 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 to the lender other things he received of the same kind and quality. Consequently, after receiving a loan, the borrower always has an obligation to return the property to the lender.

In this case, the funds received under the loan agreement were subject to return by the company to the lender. "

2. Resolution of the FAS SZO dated 04.16.2004 No.A56-40256 / 03

3. Resolution of the FAS DO dated 22.02.2005 No. F03-A51 / 04-2 / \u200b\u200b3780

4. Resolution of the FAS MO dated 01.04.2005 No. А-А41 / 2142-05 recommendations. "

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Interest-bearing loan agreements between legal entities are quite common. Many firms choose this method of raising funds, since contacting banking organizations is often less profitable.

This is due to the fact that partner companies are willing to provide loans to each other on attractive terms. You can learn about the features of this type of agreement from this article.

Features:

One of the most common agreements in legal practice is an interest-bearing loan agreement. It can be concluded by everyone - both citizens and legal entities.

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

It is fast and IS FREE!

The parties to the agreement transfer funds to each other for a predetermined period and pay off the debt along with accrued interest.

In general, a loan agreement is considered to be an interest rate by default, even if this condition is not spelled out in the document itself.

If the document does not say anything about the procedure for calculating and paying interest, the fee for using borrowed funds will be calculated based on the current refinancing rate.

If there is no procedure for payment of interest in the document, their payments will be made monthly from the date of repayment of the full loan amount.

Moreover, if the lender, together with the transfer of the loan, performs operations subject to VAT, then in accordance with paragraph 4 of Article 149 of the Tax Code of the Russian Federation, it needs to keep separate records.

For this purpose, to calculate the ratio indicated in paragraph 4, it is necessary to take only interest, and the size of the loan itself should not be taken into account.

The following point is also important: the lender company cannot claim for reimbursement of input VAT on goods, works or services that it uses in activities associated with the provision of a loan.

This amount will be included in the cost of work performed or services provided. This idea is expressed in.

However, if the size of non-taxable transactions does not exceed 5% of the line defined by paragraph 4 of Article 170 of the Tax Code of the Russian Federation, then the lender may not keep separate accounting and is entitled to a full VAT refund ().

If the loan is provided in non-cash form, the amount of accrued interest must be attributed to the taxable base for calculating VAT (clause 2, clause 1).

This obligation appears at the time of the direct transfer of interest. The calculation of the tax itself is carried out at the estimated rate (clause 4).

The lender is obliged to generate an invoice for the receipt of interest and record it in the sales book (used in calculating VAT, paragraph 18).

Income tax

If the lender company receives a payment in the form of interest for the provision of a loan, this amount will be included in non-operating income, which means that it will need to pay income tax (the interest rate existing in the region of the company applies).

The lender must include the interest received under the contract in non-operating income, regardless of the form in which the loan is provided (cash or non-cash) - paragraph 6.

With the cash method, interest is accounted for at the time of their direct transfer ().

If the lender uses an accrual basis, interest will be included in non-operating expenses at the end of the reporting period (provided that the agreement is valid for two or more reporting periods).

This is stated in paragraph 6 and paragraph 4 of the Tax Code.

Tax accounting

According to tax officials, interest on a loan agreement (if its validity period covers two or more reporting periods) is accounted for in income evenly at the end of the month of the relevant reporting period, and this does not depend on the timing and actual payment determined by the agreement.

At the same time, some courts consider that income should include only interest for the period of its actual transfer.

Separately, you should consider the specifics of tax accounting of interest on loan agreements denominated in foreign currency:

• the loan is provided in foreign currency and interest is paid in rubles. If the lender uses the accrual method, then the change in the exchange rate can cause a positive or negative difference between the accrued and received interest. With an increase in the exchange rate, a positive difference is formed, with a decrease, accordingly, a negative one. Here we will apply the general accounting procedure: a positive difference goes to the composition of non-operating income (Article 250 of the Tax Code of the Russian Federation), a negative difference goes to non-operating expenses ();

If the lender uses the cash method, there will be no difference, since interest will be recorded as income after its direct transfer (Article 273 of the Tax Code of the Russian Federation).

• the loan is provided in foreign currency, interest is also paid in foreign currency. The amount of the benefit received in foreign currency is converted into rubles (). Recalculation is carried out at the current rate of the Central Bank or on the last day of the reporting period.

If, as a result of a change in the exchange rate, there are positive or negative differences, they will be accounted for as non-operating income or expenses of the lender.

If the cash basis is used, no difference can arise, since the clearing takes place on the date of direct interest payment.

Sample contract

To draw up an interest-bearing loan agreement between legal entities, a standard loan agreement form is used.

This means that the document will list all the same provisions:

• the subject of the agreement (the amount of the loan, the amount of interest and the terms of payment are indicated here);
• rights and obligations of the parties;
• terms of the contract;
• additional conditions, etc.

Among other things, annexes can be drawn up to an interest-bearing loan agreement between organizations:

• loan issuance schedule;
• loan repayment schedule;
• interest payment schedule.

Additional documents usually include:

• supplementary agreement;
• protocol of disagreements;
• dispute reconciliation protocol.

How to avoid mistakes when drawing up an interest rate loan agreement between legal entities

Any errors and inaccuracies in the interest rate loan agreement can lead to the most undesirable consequences, up to and including its invalidation. To prevent this from happening, you must carefully monitor all the information entered.

Check if the loan amount, maturity dates, interest rate for the use of funds (if the rate is not indicated, interest will be charged at the rate of the Central Bank of the Russian Federation), the amount of penalties, etc. are correctly indicated in the agreement.

Carefully review how complete and accurate the specified details of the parties are.
Any changes may be made to the agreement by mutual agreement of the borrower and the lender.

If the parties to the agreement decide to change any material terms, a written additional agreement must be drawn up to the main contract.

An interest-bearing loan agreement between organizations is concluded quite often, just as often mistakes are made when drawing up a document.

To avoid this, you must carefully check all the points of the agreement.

If the qualifications of the company's employees are not high enough, it is advisable to use the services of professionals - this will help to avoid mistakes and, as a result, complex and irreparable consequences.

Video: loans and borrowings, transactions with bills - legal issues, accounting and taxation

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One legal entity plans to issue a loan to another legal entity at 1% per annum. All parties to the relationship are residents of the Russian Federation and apply the general tax regime. At the same time, subsidiaries are agricultural producers applying the tax rate for corporate income tax of 0% on the basis of clause 1.3 of Art. 284 of the Tax Code of the Russian Federation.
Loans are provided in rubles. The parties to the agreements are not taxpayers of the mineral extraction tax, are not residents (participants) of a special or free economic zone, as well as participants in regional investment projects. The parties to the loan agreements are not members of the same consolidated group of taxpayers formed in accordance with the Tax Code of the Russian Federation.
Can one legal entity issue a loan to another legal entity at 1% per annum if the legal entities are not interdependent entities, and in the case of interdependence of legal entities (one of them is the founder (participant, shareholder) of the other with 100% participation)? What are the tax risks in this case?

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Tax implications of interest-free loans

Company information KSK GROUP

KSK group traces its history back to 1994. From the moment of its foundation to the present day, the company has been among the leaders in the consulting services market in the field of audit, tax, law, valuation and management consulting. Over 20 years of work, more than 2000 projects have been implemented for the largest Russian companies.

KSK Group offers a comprehensive and practical solution to the most pressing problems facing financial and general directors of companies and business owners. An individual approach, a deep understanding of the needs and goals of clients, combined with practical knowledge, allow us to solve these problems as efficiently as possible.

The KSK group team is a team of more than 350 specialists with unique experience in implementing projects for both medium-sized and largest Russian corporations.

Currently, KSK Group offers a full range of services and solutions for business:

• audit according to Russian and international standards;
• tax and legal consulting;
• outsourcing and automation of business processes;
• solutions to attract funding;
• marketing solutions and business strategy development;
• management and personnel consulting;
• evaluation and examination;
• support of capital transactions;
• Due-diligence.

With the adoption of the Tax Code of the Russian Federation, which contained Art. 40, which regulated taxation between related parties, many did not understand whether the effect of this article applies to the situation of issuing interest-free loans.

In this regard, the issue is reflected in judicial practice. In the resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of August 3, 2004 No. 3009/04, it was stated that if an organization received funds by borrowing at low interest or no interest at all (interest-free loan), then it has no income taxed on profit. Following the Supreme Arbitration Court of the Russian Federation, corresponding clarifications appeared in the letters of the Ministry of Finance of Russia (Letter of the Ministry of Finance of Russia dated April 2, 2008 No. 03-03-06 / 1/245, Letter of the Ministry of Finance of Russia dated July 17, 2008 No. 03-03-06 / 1 / 415, Letter of the Ministry of Finance of Russia dated August 29, 2011 No. 07-02-06 / 161).

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

In addition, there is no taxable income for the entity that issued the interest-free loan. This conclusion was confirmed by the arbitration practice (Resolution of the FAS of the Volga District of April 23, 2010 in case No. A72-15093 / 2009, Resolution of the Moscow District of July 28, 2010 No. KA-A40 / 7751-10). The Ministry of Finance of Russia also agreed with this opinion (letter of the Ministry of Finance of Russia dated August 11, 2011 No. 03-03-06 / 2/120).

After amending the Tax Code of the Russian Federation, in particular, the entry into force of Section V.1 from January 1, 2012. “Interdependent persons. General provisions on prices and taxation. Tax control in connection with transactions between related parties. Agreement on Pricing ”, the tax authorities immediately explained that since the Tax Code of the Russian Federation now talks about transactions, and not about the price of goods / works / services, as it was in Art. 40 of the Tax Code of the Russian Federation (and the loan agreement, of course, refers to transactions), then the provisions of this chapter apply to loan agreements.

The need to apply clause 1 of Art. 105.3 of the Tax Code of the Russian Federation to the interest-free loan agreements, the Ministry of Finance of Russia has repeatedly indicated (Letter of the Ministry of Finance of Russia dated October 2, 2013 No. 03-01-18 / 40821, Letter of the Ministry of Finance of Russia dated August 13, 2013 No. 03-01-18 / 32745). According to the government agency, the lender's income from transactions on the provision of an interest-free loan between related parties is determined based on the amount of interest that would have been received by the lender in the event of a transaction between non-related parties in commercial and (or) financial conditions comparable to the analyzed transaction.

In addition, from January 1, 2015, Art. 269 \u200b\u200bof the Tax Code of the Russian Federation is set out in a new edition (as amended by Federal Law No. 420-FZ dated December 28, 2013 "On Amendments to Article 27.5-3 of the Federal Law" On the Securities Market "and Parts One and Two of the Tax Code of the Russian Federation" ). According to par. 3 p. 1 of Art. 269 \u200b\u200bof the Tax Code of the Russian Federation, for debt obligations of any type arising from transactions recognized in accordance with the Tax Code of the Russian Federation as controlled transactions, income (expense) is the percentage calculated based on the actual rate, taking into account the provisions of Sec. V.1 of the Tax Code of the Russian Federation, unless otherwise provided by Art. 269 \u200b\u200bof the Tax Code of the Russian Federation.

For a debt obligation arising as a result of a transaction recognized in accordance with the Tax Code of the Russian Federation as a controlled transaction, the taxpayer has the right to recognize as income the interest calculated based on the actual rate on such debt obligations, if this rate exceeds the minimum value of the range of limit values \u200b\u200bestablished by clause 1.2 of Art. 269 \u200b\u200bof the Tax Code of the Russian Federation (clause 1.1 of Article 269 of the Tax Code of the Russian Federation as amended by the Federal Law of March 8, 2015 No. 32-FZ "On Amendments to Part Two of the Tax Code of the Russian Federation", letters of the Ministry of Finance of Russia dated April 06, 2015 No. 03 -01-18 / 19113, dated March 27, 2015 No. 03-03-06 / 2/17141).

The foregoing fully applies to loan agreements. In 2015, in the proceedings of arbitration courts, tax disputes appeared on additional tax charges under loan agreements that do not fall under the category of controlled transactions.

So, for example, in the ruling of the Eleventh Arbitration Court of Appeal dated September 16, 2015 in case No. А55-6976 / 2015, a situation was considered when the organization issued an interest-free loan, and the tax authority charged the lender with the lost interest. At the same time, despite the fact that the concluded transactions were not controlled, which is not denied by the tax authority, the Interdistrict Inspectorate of the Federal Tax Service of Russia for the largest taxpayers in the Samara region believed that any tax authorities of the Russian Federation were given the right to check the compliance of market prices for any transactions by Article 105.3 of the Tax Code of the Russian Federation between interdependent persons. The transactions under consideration were aimed at "creating conditions for the emergence of an unjustified tax benefit", which is the basis for the application of paragraph 3 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 53 of October 12, 2006. Instead of providing a loan, the lender, in the opinion of the tax authority, could receive a higher income from placing funds on a deposit with a bank.

To assess the “market” level of interest rates, the tax authority accepted the information provided by the International Information Group Interfax (SPARK), according to which in 2012 loans in rubles for a period of one to three years were provided to commercial organizations at a rate of 12.58 % to 13.89%. As a result, the contested decision made an additional tax assessment based on the estimated income that could be obtained by placing funds on the deposit at the minimum rate.

This argument of the tax authority was not accepted by the court in view of the following. The court noted that the right to determine, for tax purposes, the taxpayer's revenue (under a transaction with an interdependent person) belongs exclusively to the Federal Tax Service of Russia, which is directly indicated in clause 2 of Article 105.3 of the Tax Code of the Russian Federation. Other tax authorities have not been empowered to control the level of “market” prices. Taking into account the foregoing, the use of this tax control mechanism for transactions that do not fall under it is unacceptable, since:

• allows the implementation of the rights of tax authorities not provided for by legislation and arbitrary application of legislation;
• entails an arbitrary choice and implementation of tax control measures;
• deprives the taxpayer of the guarantees provided by law when carrying out similar control measures;
• leads to taxation of unearned abstract income.

In addition, the tax authority did not establish the fact of obtaining an unjustified tax benefit from these transactions.

Thus, in order to assess the risk of tax control measures in relation to the lender organization, in the opinion of the court, it is necessary to determine the amount of income from transactions with a related party, including in the income indicator the amount of interest that the lender could receive from the borrower. If the amount of income from transactions for the year does not exceed the established value, then the transaction of an interest-free loan is not subject to control. Similar conclusions are contained in the ruling of the Ninth Arbitration Court dated September 30, 2015 No. 09AP-35789/2015.

In the decision of the Arbitration Court of the Volgo-Vyatka District of October 14, 2015 in case No. А29-10095 / 2014, it is stated that during the audit, the inspection concluded that the company did not reflect the interest on the loan as part of non-operating income for the purpose of calculating profit tax issued to an interdependent person. When considering the case, the court proceeded from the fact that the inspectorate did not provide evidence that the company had received an unjustified tax benefit as a result of unfair behavior and abuse of its rights. In addition, the court concluded that the inspectorate did not comply with the conditions for conducting tax control on transactions with related parties established by Section V.1 of the Tax Code of the Russian Federation.

An interest rate that is too high can lead to the fact that the transaction can be recognized as enslaving, and subsequently not valid. This is typical for ministries of justice issued at several hundred percent per annum.

Interest on loans between related parties and their tax accounting concerns many accountants. In our article we will tell you what the representatives of the financial department and arbitrators think about these issues.

Interest on loans between related parties

In a letter dated 15.07.2015 No. 03-01-18 / 40737, the Ministry of Finance of the Russian Federation explained that companies, including interdependent companies, are legally allowed to conclude loan agreements on terms convenient for them. However, for income tax, interest on such transactions for related parties (VL) is taken into account in accordance with clause 1.1 of Art. 269 \u200b\u200bof the Tax Code of the Russian Federation. At the same time, this rule applies to interest accrued from January 1, 2015, regardless of the date of the loan (before January 1 or after).

Learn about the features of the methods of recognition of income and expenses for tax purposes from our material "Accrual and cash method: the main differences."

Transactions between related parties are considered controlled if they are characterized by the conditions of Art. 105.14 of the Tax Code of the Russian Federation. Since January 1, 2015, the tax legislation considers interest on debt obligations under controlled transactions between overhead lines as income / expense, determined based on the actual rate, but within the rates fixed in clause 1.2 of Art. 269 \u200b\u200bof the Tax Code of the Russian Federation.

This is what these rates for ruble loans look like:

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

For loans in foreign currency, the rates are determined based on the rates of EURIBOR, SHIBOR, LIBOR on the terms fixed in sub. 2-6 p. 1.2 of Art. 269 \u200b\u200bof the Tax Code of the Russian Federation.

As a reminder, from 19.09.2016 the key rate is 10.0% per annum.

Interest-free loan between related parties

As for interest-free loans between overhead lines, there are also explanations of the Ministry of Finance of the Russian Federation, set out in the letter dated 18.07.2012 No. 03-01-18 / 5-97.

Find answers to your questions about the application of Art. 251 of the Tax Code of the Russian Federation in our material “Art. 251 of the Tax Code of the Russian Federation (2015): questions and answers ”.

In the opinion of the department, the effect of subparagraph 1 does not apply to interest-free transactions. 11 p. 1 of Art. 251 of the Tax Code of the Russian Federation (we are talking about the application of income conditions to them, which are not included in the profit base). For interest-free transactions between overhead lines, the income of the lender organization will be the interest that it could receive if the transaction was "interest-bearing". At the same time, a comparison is made with similar transactions between legal entities that are not interdependent.

In practice, it is not uncommon for one organization, which is part of a group of legal entities, to receive a loan at an interest rate from a banking organization, and then transfers it to an overhead line for its needs as an interest-free loan (for example, to purchase fixed assets or working capital). In such cases, when checking, the tax authorities often consider the interest expenses under the loan agreement and the loan agreement to be economically unjustified, and the transaction itself between the two overhead lines is formal. However, judges in such a situation do not always side with the controllers. So, for example, in the resolution of the CA of the North-Western District of 01.07.2015 No. A56-60966 / 2014, the judges supported the taxpayer, having come to the conclusion that transactions for the redistribution of funds (regardless of whether they are credit or not) within the group of legal entities do not contradict the postulates Tax Code of the Russian Federation.

Interest on loans between overhead lines is considered income / expense for each of the parties. Moreover, the theses formulated in Art. 269 \u200b\u200bof the Tax Code of the Russian Federation are applicable to both controlled and uncontrolled transactions. Income from interest-free borrowing is not included in the income base.

Minimum interest on loans between legal entities in 2017

Other criteria for signing a contract are reflected in Art. 807 - 808 of the Civil Code of Russia. During the period of signing the document, the participants necessarily agree on the interest rate and fix the amount in the agreement. It is recommended to draw up a document using a template. With interest Loans can be provided with or without interest. This must be indicated in the document. An interest-bearing loan implies a return by a potential borrower to the lender of the amount of debt obligations together with accrued interest, which are remuneration for the use of other people's money. The document must also display the option of calculating interest rates with the total amount. Often, interest is charged on the amount of debt. In addition to the agreement, a payment schedule is attached. Interest-free Can a loan agreement be interest-free.

What is the minimum rate to indicate in the loan agreement?

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