Any company is at risk when receiving a loan from the founder, regardless of whether interest is charged on it or not. As a rule, the actions of the founder are controlled by authorized bodies. The tax consequences of an interest-free loan in 2020 are determined by the category of the transaction.
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A legal entity can borrow funds from another legal entity, its own or a third-party founder.
Income is recognized as an economic benefit if it is subject to assessment and complies with the standards of Chapters 23 and 25 of the Tax Code of the Russian Federation.
The definition of "material benefit" was established by the Presidium of the Supreme Arbitration Court, the instructions of Chapter 23 of the Tax Code of the Russian Federation. On the one hand, saved interest accruals are included in the tax base for personal income tax.
On the other hand, in accordance with the instructions of Chapter 25 of the Tax Code of the Russian Federation, they are included in the category material gain received from the use of borrowed funds. It is not considered income for income tax.
Under the wording "related person", in accordance with the instructions, it means an individual or legal entity that has a share in the authorized capital of an enterprise of more than 25%.
It becomes dependent on the share invested by it, therefore, in most cases, the legal entity acts to the detriment of its personal interests.
In accordance with the instructions of the article, a transaction made between related persons is a controlled transaction.
It notes that the amount of income in the course of one year should exceed 1 billion rubles.
If the founder has provided an interest-free loan in a smaller amount, then it is not subject to additional tax for the income lost from interest charges.
A legal entity that has received an interest-free loan from the founder has a material benefit.
But since the instructions of Chapter 25 of the Tax Code of the Russian Federation do not establish a procedure for establishing benefits, the tax base does not increase.
In the event of a reverse situation, when any legal entity issues a loan without interest to the founder - an individual, he has a material benefit.
It is presented as a tax-free interest charge. Individuals are subject to a personal income tax of 13%.
For example, an employer gives an employee an interest-free loan in the amount of 200,000 rubles for six months. He must pay personal income tax equal to 1,200 rubles.
If he takes the same amount from the bank at the minimum interest rate, he must pay about 6,000 rubles.
The expenses of a legal entity applying the system of simplified taxation for the repayment of borrowed funds taken earlier do not reduce the tax base. The norm is set in accordance with the instructions of the letter of the Federal Tax Service.
A desk or tax audit is carried out in order to identify the fact that a legal entity has received unreasonable material benefits.
It can be formed due to a decrease tax base by lowering the transaction price. The circumstance leads to the formation of the risk to which he and his founder are exposed.
If such a fact is revealed, additional income tax is charged taking into account the market value and interest accrued on the loan.
A legal entity applying the simplified tax system is at risk if the loan issued to it by the founder is not returned within the period established by the agreement. In such a situation, income is subject to taxation.
Unrealized income becomes accounts payable, which is written off due to the expiration of the term limitation period. It should be reflected in the tax base established by the simplified tax system.
as directed tax code The limitation period for accounts payable is 3 years. It is counted from the day when it was necessary to repay the loan.
For example, the date of repayment of an interest-free loan is January 31 of the current year. The statute of limitations will begin on February 1st.
Separate legal entities, interdependent and independent economic entities seek to issue an interest-free loan in order to redistribute cash between themselves.
Many entrepreneurs who did not file debt forgiveness in a timely manner, who did not post the return of borrowed funds, fall into confusion from innovations.
They don't know what to do to avoid accumulating federal debt. tax service, administrative responsibility.
At the moment, there are several ways to avoid paying personal income tax.
These include:
| Indicators | Description |
| Loan agreement renewal | the measure allows for a guaranteed reduction in the size of the tax base, because it will be calculated on the date specified in the loan agreement. In this case, a smaller amount will be paid. As for the outstanding borrowings, the situation will be resolved without any unforeseen financial consequences |
| Transfer of the transaction to another category by accruing interest on borrowed funds | as a result of the transaction, taxation will be carried out according to a different scheme, and the tax amount will be calculated using other formulas |
But the best option is to issue debt forgiveness, which will avoid paying a tax of 35%.
An interest free loan will be treated as net profit legal entity.
It will be subject to the 13% personal income tax, provided for all Russian tax residents. The FTS must be notified by filing the appropriate tax return.
On its basis, the authority will draw up taxes, setting the final maturity of the debt.
Borrowed funds must be returned to the lender with property of a different kind, which was taken by the borrower. For example, you can not return the property to the place of cash.
This kind of situation is regarded as the sale of goods by a legal entity, so it must pay income tax.
Its size is determined by the type of taxation system chosen. For example, it is 6% if the company uses the simplified tax system.
In the resolution of the plenum of the presidium, issued on August 30, 2004, it was noted that an interest-free loan between related parties tax consequences do not arise.
They do not receive income that is taxable as income tax.
The same was said in the letters of the Ministry of Finance No.:
The material benefit received by a legal entity from the use of an interest-free loan does not increase the tax base for income tax. It is not included in the number of objects of taxation from which income tax is withdrawn.
If the loan agreement is not concluded, the transaction will be officially declared invalid.
Any transaction must be documented if the amount of an interest-free loan provided by the founder exceeds 1,000 rubles.
In accordance with the innovations, the material benefit of legal entities will be determined according to the data corresponding to the end of the expiring month.
Consequently, they are required to pay tax on existing debts on loans, if they do not have an official paper on their forgiveness.
The amount of tax is determined not only by the amount of funds received by the borrower, but also by the timing of their use.
Concerning income tax for an interest-free loan, then from the current year legal entities are required to pay it every month.
Borrowed funds received during the conclusion of a loan agreement and returned within the period established by it are not taxed.
The term "interest" refers to any income that has been previously declared by the lender. The norm is noted in the instructions of Article 43 of the Tax Code of the Russian Federation.
It includes the difference between the prices for the same type of goods delivered in different periods of time.
As a rule, it is formed at the expense of obligations on debts, regardless. In essence, interest is income that is generated from debt obligations.
An interest-free loan according to the instructions is not included in the category of income if it is returned to an individual.
But the interest accrued on it, in accordance with the terms of the loan agreement, will turn into income received by an individual. It is subject to income tax.
Transactions for the provision of the above loan, in accordance with the instructions, can be made:
The first kind of transactions are controlled by the Federal Tax Service and uncontrolled.
The procedure for calculating the tax base is provided for by the instructions. It must be determined taking into account all income of the taxpayer, regardless of the form of the loan.
Income presented as a material benefit is derived from interest savings. They are accrued on the funds taken by the borrower, as noted in the instructions.
If the borrower receives it, then the date of actual receipt of income becomes the day of payment of interest on borrowed funds. The norm is set.
Decree of the Armed Forces of the Russian Federation:
Letter from the Federal Tax Service of the Russian Federation:
Letters from the Ministry of Finance:
Number Description No. 03-03-06/1/245 published April 2, 2008 on the procedure for taxation of profits upon receipt of an interest-free loan No. 03-03-06/1/415 published on July 17, 2008 order of conduct tax accounting income (expenses) in the form of interest on loan, credit, bank account, bank deposit, as well as interest on securities and other debt obligations
An interest-free loan is a common phenomenon among business entities. Until recently, the attitude of the tax authorities to this issue was unequivocal: the creditor is obliged to pay income tax. Therefore, any redistribution of funds within the holding became risky. But the decision of the higher courts made positive adjustments.
Organizations often need additional funding. For enterprises of one holding company, this problem is solved by providing a loan. Such transactions are used as part of financial planning. Lenders provide funds free of charge. But such a transaction threatens the recipient with the collection of income tax (ITP).
Classic scheme
Companies create a legal entity, conclude several contracts with it. This allows the company to quickly start production activities. After receiving the proceeds, the organization accepts "incoming" VAT. This solves the problem of determining the sources of tax payment, cash gaps are easily covered. In BU, an operation is formalized as a loan, and in CU - as a redistribution of finances, for example, in the form of payment for a delivery. Problems are caused by the consequences of an interest-free loan between legal entities, in particular the payment of VAT and GPT.
The lender provides financial assistance to the needy party. The debtor undertakes to return the amount at the specified time. This is how the parties enter into legal relations.
The terms of the transaction are determined by the contract. It begins to operate from the moment the object is transferred (the amount of funds, securities, bills, etc.). According to Art. 809 of the Civil Code of the Russian Federation, the transaction automatically becomes interest-free if the object is things.
The contract must include the following items:
It is very important to check the correctness of the paperwork and all the details. The presence of a notary public at the conclusion of the transaction is welcome. If the loan is in foreign currency, you need to follow the exchange rate. If the contract does not specify the period for the return of funds, then it is calculated within 30 days from the date of the claim.
The contract can be repaid ahead of schedule. These operations do not affect the profitability of the transaction: the commission is still not charged. Therefore, the lender is primarily interested in such a scheme. But even after paying the debt, the relationship between the participants does not end. They have to pay fees. Let us consider in more detail the tax consequences of an interest-free loan between legal entities.
According to the Federal Tax Service, loan relations can be qualified as the provision of financial services. But there is no charge for them. Interest-free authorities refer to in the form of a property right or service (Article 250 of the Tax Code). The assessment of economic benefits is carried out by refinancing the Central Bank on the day when the interest-free loan is repaid.
The tax consequences depend on the form of ownership of the participants in the transaction.
A legal entity that has received a certain amount from a creditor can then invest it in production. Then these funds will not be included in the taxable base. The company is not required to pay taxes.
If the lender and the borrower are individuals, then there is no question of paying fees. Obtaining interest-free loans from legal entities is accompanied by payment of personal income tax- 35% of 75% of the current refinancing rate.
To get rid of the claims of the Federal Tax Service, you need to prove that the loan is not a service, the results of which will be used in activities.
Borrowers can be legal entities that:
A creditor may be an enterprise to which, according to the charter and law, it is not forbidden to provide funds on credit. He is only required to have ownership of the object. The subject of the loan is transferred to full disposal, but for a while.
There is no time limit for repaying debt. This period is agreed between the lender and the borrower and usually depends on the solvency of the second party to the transaction. The lender may require an additional guarantee: a pledge of property, a guarantee from a shareholder or manager. The payment of funds is the crediting of the full amount to the account of the creditor. In case of debt formation within a month (sometimes a quarter), the lender can go to court.
The interpretation of an interest-free loan in the Tax and Civil Codes differs in the following parameters:
There are many questions about the consequences of an interest-free loan. Tax specialists call the accrual of NPP the identification of savings on interest. But in the Tax Code of the Russian Federation, obtaining material benefits takes place only when calculating personal income tax. In Art. 212 clearly describes the process for calculating the amount of the fee. The Federal Tax Service is trying to apply this rule to NPP. The tax consequences of an interest-free loan between legal entities in the form of penalties are usually disputed by lawsuits.
Despite the fact that most claims on this issue were resolved in favor of taxpayers, the number of claims from the Federal Tax Service did not decrease for a long time. The situation changed when the Supreme Arbitration Court of the Russian Federation issued a ruling in which it indicated that the Tax Code does not consider the benefit from savings for use as the basis for calculating the NPP. Such operations are not recognized as a service for the purpose of calculating VAT, and the funds under the loan agreement are not received free of charge. Therefore, the negative consequences of providing an interest-free loan are minimized.
Detailed consideration is required for operations in which funds received under a loan agreement are used to issue an interest-free loan between legal entities. The tax consequences in such transactions are more serious.
Expenses that reduce the base for calculating the NPP are recognized as all costs that are incurred in the course of carrying out activities aimed at making a profit. That is, when taking into account the cost of paying interest on loan agreements you need to confirm that the use of funds is aimed at generating income. This is difficult to do when it comes to obtaining an interest-free loan. The organization cannot take into account interest on loans in non-operating expenses. That is, the tax consequences of an interest-free loan between legal entities consist in challenging such transactions by the Federal Tax Service in court.
Under the terms of the contract, the borrower receives some things or funds and undertakes to return them at the end of the term. An interest-free loan is recognized for which:
The tax consequences of an interest-free loan between legal entities may not occur at all if at least the minimum rate for the use of funds is attributed in the document. You can conclude an additional agreement and state in it that by the time the money is returned, the borrower will have to pay, for example, 1% per annum.
The creditor has the right to demand the return of funds through the court within three years from the day following the return date specified in the agreement. If the term of the loan is 5 years, then the lawsuit can stretch up to 8 years. Only after this period has elapsed accounts payable and include its size in the base for calculating the NPP.
If the borrower sends letters to the creditor every 3 years following the date of expiration, willingly repaying the debt, then the limitation period will never expire.
In order not to take into account the amount of unreturned funds as part of taxable income, you need to:
Interest-free loans between legal entities are one of the most simple ways redistribution cash flows within the group of companies. However, as arbitration practice shows, the issuance of interest-free loans is fraught with additional accrual of income tax (for organizations) and personal income tax (for individual entrepreneurs). Let's analyze what tax risks arise in the implementation of such transactions?
According to the current legislation, a loan agreement can be both paid, i.e. providing for the payment of interest for the use of borrowed funds, and gratuitous, when the fulfillment by the borrower of an obligation is limited only to the repayment of the debt (clause 1, article 809 of the Civil Code of the Russian Federation). The corresponding condition is agreed in the contract.
Interest-free loans can be issued third parties and interdependent persons. In the first case, the lender may face tax risks in terms of non-recognition of interest expenses under the loan agreement, the funds of which are used to issue an interest-free loan. In the second, in connection with the occurrence of non-operating income from the lender. With regard to operations under interest-free loan agreements, the tax authorities are guided by the clarifications given in the letters of the Ministry of Finance of Russia dated 05.25.15 No. 03-01-18/29936, dated 10.2.13 No. 13, No. 03-01-18/32745. To such transactions, the finance department applies the provisions paragraph 1 of Art. 105.3 The Tax Code of the Russian Federation, which establishes that the income of the lender is determined based on the amount of interest that would be received by him in the event of a transaction between persons who are not interdependent, in commercial and (or) comparable with the analyzed transaction financial terms, i.e. in a comparable transaction.
Let us analyze the validity of the claims of the tax authorities, for which we turn to the relevant provisions of Chapter 25 of the Tax Code of the Russian Federation.
Income for the purpose of calculating income tax is recognized as income from the sale of goods (works, services), property rights and non-operating income. The list of non-taxable non-operating income is given in paragraphs. ten paragraph 1 of Art. 251 Tax Code of the Russian Federation: when determining the tax base, income in the form of funds or other property received under credit or loan agreements (other similar funds or other property, regardless of the form of borrowing, including securities on debt obligations), as well as funds or other property received in repayment of such borrowings. Accordingly, when determining the tax base, expenses in the form of funds or other property transferred under credit or loan agreements (other similar funds or other property, regardless of the form of borrowing, including debt securities), as well as in the form of funds or other property transferred under credit or loan agreements, are not taken into account. which are used to repay such loans (paragraph 12 of article 270 Tax Code of the Russian Federation).
Does the borrower, a legal entity, generate income? As follows from the above legal norms, no. Specialists of the Ministry of Finance of Russia also acknowledge (letter No. 03-03-06/1/5149 dated February 9, 2015) that the procedure for determining the benefit for the purpose of calculating income tax has not been established, therefore, the amount received by an organization from using an interest-free loan does not increase the base corporate income tax. The tax authorities are in solidarity with this position (letters of the Federal Tax Service of Russia for Moscow dated November 22, 2011 No. 16-15 / [email protected], dated 27.09.11 No. 16-15/ [email protected]).
In practice, situations are not uncommon when a legal entity that is part of a group of companies attracts credit resources at a market rate of interest and subsequently transfers them to another company under an interest-free loan agreement.
Under the loan agreement, the organization raised funds at 15% per annum to replenish working capital (loan amount - 60 million rubles). These funds were sent to another organization under an interest-free loan agreement for the subsequent purchase of cars.
Based on these circumstances, the tax inspectorate concluded that the expenses in the form of interest under the loan agreement and the loan agreement are economically unjustified, since the funds received under these agreements were transferred to an interdependent person under unreal transactions (drawn up only on paper, without real business purpose and bearing a purely formal character). At the same time, own collected funds are withdrawn from circulation by issuing interest-free loans to the founder or other interdependent organizations. During the audit, it was also found that everyone provides each other with interest-free loans, while receiving credit funds from banks. The amount of accrued interest on loan agreements directed to related companies was excluded from the expenses taken into account when calculating income tax. Disagreeing with a decision tax office the organization went to court. As the judges pointed out in the decision of the Arbitration Court of the North-Western District dated July 1, 2015 No. А56-60966/2014, the redistribution of funds within the group of companies does not in itself contradict the requirements of the Tax Code of the Russian Federation. The court assessed the arguments of the tax inspectorate based on the position set out in the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of October 12, 2006 No. 53 “On the assessment arbitration courts justification for the taxpayer to receive a tax benefit”.
A tax benefit cannot be recognized as justified if it is received by a taxpayer outside of real business or other economic activity.
The validity of obtaining a tax benefit cannot be made dependent on the methods of raising capital for economic activity or on the efficiency of capital use.
It has not been proven by the tax authorities that the main purpose pursued by the company was to generate income exclusively or mainly from a tax benefit (reduction of taxable profit due to non-operating expenses) in the absence of an intention to carry out real economic activity.
Despite the fact that the litigation was resolved in favor of the taxpayer (due to the insufficient evidence base on the part of the tax authorities), under similar circumstances, court cases are not excluded, the outcome of which is difficult to predetermine. The subject of consideration by some arbitration courts were cases related to the procedure for determining the material benefit from the lender when issuing interest-free loans to related parties.
At the same time, as follows from the totality of the norms of the Tax Code of the Russian Federation, transactions between related parties can be divided into two groups:
Controlled, recognized as such subject to compliance with the provisions Art. 105.14 Tax Code of the Russian Federation;
Other transactions between related parties (uncontrolled).
Only if the loan agreement is a controlled transaction, the lender must show the virtual income in the amount of interest lost on the interest-free loan (letters of the Ministry of Finance of Russia dated 2.10.13 No. 03-01-18 / 40821, dated 13.08.13 No. 03 -01-18/32745, dated July 18, 2012 No. 03-01-18/5-97, dated February 24, 2012 No. 03-01-18/1-15). In this regard, the tax authorities conclude that any income that could be received by one of the related parties from such transactions should be taken into account for tax purposes with this person. In other words, in controlled transactions for the provision of interest-free loans, the income of the lender is determined based on the amount of interest that would be received by the lender in the event of a transaction between persons who are not related, in commercial and (or) financial conditions comparable to the analyzed transaction, i.e. in a comparable transaction.
The interdependence of the participants in the transaction as a factor affecting the procedure for taxing the results of this transaction can be established by the tax authority only as a result of certain measures. tax control outside the framework of visiting or cameral tax audit(paragraph 3 paragraph 1 of Art. 105.17 Tax Code of the Russian Federation).
Note that currently arbitrage practice on this issue is ambiguous. In a number of cases, the courts point out that the failure to obtain a positive financial result in the form of the amount of interest under a loan agreement is outside the scope of control and assessment of the tax authority, and the conclusion of transactions with interest-free loans does not lead to an increase or decrease in the tax base for income tax for any of the parties to the agreement, and therefore the relevant transactions are recognized as controlled should not (clause 13 of article 105.3, paragraph 11 of Art. 105.14 Tax Code of the Russian Federation).
Moreover, one of the courts noted that transactions between interdependent organizations that are payers of income tax are recognized as controlled if the amount of income from such transactions in a calendar year exceeds the value of the amount limit specified in paragraphs. one paragraph 2 of Art. 105.14 Tax Code of the Russian Federation (since 2014 - 1 billion rubles).
In other words, the court refuted the arguments given in the letter of the Federal Tax Service of Russia dated September 16, 2014 No. ED-4-2 / [email protected], to the extent that verification of price matching in non-controlled transactions can be carried out between related parties.
As a result, the court decided that the rules and requirements that came into force on January 1, 2012, which are set out in section V.1 of the Tax Code of the Russian Federation, do not make it possible to clearly establish the possibility of their application to the analyzed situation, namely with regard to the possibility of taxing material benefits from the provision interest free loans. At the same time, Chapter 25 of the Tax Code of the Russian Federation does not consider the material benefit from savings on interest for the use of borrowed funds as taxable income. According to the court, there is no clarity in the current legislation on taxes and fees on the issue of the possibility of taxing material benefits received through the provision of interest-free loans to an interdependent person, therefore, all irremovable doubts and ambiguities in acts of legislation on taxes and fees should be interpreted in favor of the taxpayer (decision of the Yamalo Arbitration Court - Nenets Autonomous Okrug No. A81-165/2015 dated April 20, 2015).
However, in one of the court cases, the tax authorities managed to win the dispute (decree of the Arbitration Court of the North Caucasus District dated April 1, 2015 No. A53-28342 / 2013). The judges agreed with tax authorities on the issue of unjustified overstatement of expenses, receipt of unjustified tax benefits through the creation by interdependent persons of a scheme for unjustified overstatement of expenses.
Some judges, while not denying the possibility of the lender receiving income when issuing interest-free loans to related parties, do not agree with the opinion of the tax authorities regarding the formation of information about market rates.
In one of the cases, the court considered that the bank deposit (deposit) agreement was not comparable to the loan agreement, since the tax authority did not take into account essential condition that under a bank deposit agreement, one of the parties to the transaction is always credit organisation(bank), for which the specified type of activity is the main one (decision of the Arbitration Court of the Stavropol Territory dated August 5, 2015 No. A63-2718 / 2015).
Credit history and solvency, respectively, of the recipient of the loan, the person whose obligations are secured by a guarantee or bank guarantee;
Character and market price ensuring the fulfillment of obligations;
The term for which the loan or credit is granted;
The currency that is the subject of the loan or credit agreement;
Order of definition interest rate(fixed or floating);
Other conditions that affect the amount of the interest rate (remuneration) under the relevant agreement (decree of the Fourteenth Arbitration Court of Appeal of October 15, 2015 No. А05-4564/2015).
The calculations prepared by the tax authorities on the basis of SPARK, as well as the information used by the SPARK system, do not meet the requirements of the Tax Code of the Russian Federation and are also not accepted by the courts (decision of the Ninth Arbitration Court of Appeal dated September 30, 2015 No. A40-204810 / 2014) .
The courts are unanimous that interdependence can have legal significance for the purposes of tax control, if only it is established that such interdependence is used by the participants in the transaction as an opportunity for concerted bad faith actions aimed at illegally understating tax payments.
Thus, at present there is no judicial practice with unambiguous conclusions regarding the additional accrual of income tax on virtual income on operations for issuing interest-free loans between related legal entities. In addition, even if the courts agree with the need to calculate virtual income from the lender, the very methodology for calculating such income is not clear.
Consider such an issue as the possibility of recovering losses from the director of an organization in a transaction with an interest-free loan. Thus, in one of the organizations, the director, without obtaining the consent of the founders, transferred to an interdependent company an interest-free loan from the account of the organization to the card account of the director of the company. The result of this operation was trial, as a result of which the court ordered the director to return the amount of the interest-free loan. When making the decision, the judges referred to clause 1 of Resolution No. 62 of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 “On Certain Issues of Compensation for Damages by Persons Members of the Bodies of a Legal Entity”, which clarified that the sole executive body is obliged to act in the interests of the legal person in good faith and reasonably, and in the event of a violation of this obligation, the director, at the request of the legal entity and (or) its founders (participants), must compensate for the losses caused to the legal entity by such a violation (decree of the Arbitration Court of the Ural District dated September 22, 2015 No. Ф09-6778 / fifteen).
The situation is different if one of the borrowers is individual or individual entrepreneur. Paragraph 1 of Art. 210 The Tax Code of the Russian Federation provides that when calculating the tax base, all income of the taxpayer received by him both in cash and in kind, or the right to dispose of which he has arisen, as well as income in the form of material benefit, determined in accordance with Art. 212 Tax Code of the Russian Federation, according to paragraphs. 1 and 2 of which such income is the material benefit received from savings on interest for the taxpayer's use of borrowed (credit) funds provided by organizations or individual entrepreneurs. In the case of the acquisition of income in the form of material benefit, the date of its actual receipt is the day the taxpayer pays interest on borrowed funds (clause 3 paragraph 1 of Art. 223 Tax Code of the Russian Federation), and in a situation with an interest-free loan, this is the date of its repayment (Determination of the Supreme Court of the Russian Federation of April 16, 2015 No. 301-KG15-2401).
In other words, if the borrower under an interest-free loan agreement is an individual entrepreneur, then personal income tax is calculated at a rate of 35% for the period of use of gratuitous funds. (paragraph 2 of article 224 Tax Code of the Russian Federation).
Note that if an interest-free loan agreement is concluded between spouses who have the status of individual entrepreneurs, then income in the form of material benefits from savings on interest does not arise. In this case, the presence of the legal status of taxpayers - individual entrepreneurs does not exclude the application of the joint property regime between spouses, which is primary and applies to all income received during the marriage. Money transferred by way of a loan from the common joint property of both spouses to their common joint property cannot, in fact, be borrowed.
Thus, the money received individual entrepreneur from their spouse under a loan agreement, are their common property, therefore, these funds cannot be considered income for the purposes of personal income tax(Decision of the Fourth Arbitration Court of Appeal dated April 2, 2015 No. А78-7533/2014).
Dear readers! The article talks about typical ways to solve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:
APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and 7 days a week.
It's fast and IS FREE!
Financial assistance in the form of borrowing a certain amount from one party to another is quite common.
But, what nuances should be taken into account if the parties to the transaction are legal entities? How would such a deal affect their taxation?
A loan is the issuance by one person to another of a certain amount of money or a certain thing.
Loans can be divided into:
What is an interest free loan? This is a transaction for the issuance by one party (the lender) to the other party (the borrower) of a certain amount of money in debt for a certain period.
Only the lender does not collect interest from the borrower for the use of his money. That is, the borrower borrows a certain amount, and exactly the same amount he returns after a specified period.
In the business sector, such loans are quite common. They are used by enterprises that are partners in a particular business area, as well as those enterprises that are not connected to each other in the market.
There are the following suggestions:
But, it is worth understanding that an interest-free loan is a lack of profit. Therefore, there are certain nuances in the execution of the contract itself, and certain tax consequences for both parties to the transaction. The subject of the transaction can be not only cash, but also things that have certain generic characteristics.
A prerequisite for issuance is the execution of a written agreement between the parties. But, if a certain property is provided for a loan, then this type is a priori considered interest-free. If the subject of the contract is cash, then it is more profitable to issue an interest-bearing loan. Otherwise, the parties may expect unpleasant tax consequences.
Video: loan agreement between legal entities
The procedure for granting any loan is governed by civil law, namely.
Separate normative act, which would regulate the procedure for issuing borrowed funds to legal entities, does not exist. Therefore, it is necessary to be guided by the norms of the civil law. But, if the amount exceeds 600 thousand rubles at a time, then the transaction must be registered.
There are no legal grounds for the emergence of obstacles to the conclusion of an interest-free loan agreement between legal entities.
But there are some features to consider:
| It must be compiled | in writing |
| Signed by both parties | since this is a legal entity, the document is also certified by the seal of each party |
| If the object of the transaction is cash | then it is necessary to make an indication that the contract is interest-free. Otherwise, there may be tax consequences |
| If the object is property | then no instructions are needed. The contract will be considered interest-free by default |
| If the loan amount exceeds 600 thousand rubles | the document is subject to mandatory registration, as well as other features relating to the nature of the transaction |
