In accordance with Article 212. Tax Code of the Russian Federation (taxation of individuals). Personal income tax percentage levied on mat benefits

1. Taxpayer's income received in the form of material gain, are:

1) unless otherwise provided by this subparagraph, the material benefit received from savings on interest for the taxpayer's use of borrowed (credit) funds received from organizations or individual entrepreneurs, with the exception of:

material benefits received from banks located in the territory Russian Federation, in connection with transactions with bank cards within the interest-free period specified in the bank card agreement;

material benefits received from savings on interest for the use of borrowed (credit) funds provided for new construction or the acquisition on the territory of the Russian Federation of a residential building, apartment, room or share (shares) in them, land plots provided for individual housing construction, and land plots on which the acquired residential buildings, or shares (shares) in them;

material benefits received from savings on interest for the use of borrowed (credit) funds provided by banks located on the territory of the Russian Federation for the purpose of refinancing (on-lending) loans (credits) received for new construction or the acquisition of a residential house, apartment on the territory of the Russian Federation , rooms or shares (shares) in them, land plots provided for individual housing construction, and land plots on which the acquired residential buildings are located, or shares (shares) in them.

The material benefit specified in paragraphs three and four of this subparagraph shall be exempt from taxation, provided that the taxpayer has the right to receive a property tax deduction established by subparagraph 3 of paragraph 1 of this Code, confirmed by tax authority in the manner prescribed by paragraph 8 of this Code.

The material benefit received from savings on interest for the use of borrowed (credit) funds by the taxpayer (with the exception of the material benefit specified in paragraphs two to four of this subparagraph) is recognized as income of the taxpayer received in the form of material benefit, subject to such savings at least one of the following conditions:

appropriate borrowed (credit) funds received by the taxpayer from an organization or individual entrepreneur, which are recognized as an interdependent person of the taxpayer or with which the taxpayer has an employment relationship;

such savings are actually material assistance or a form of reciprocal fulfillment by an organization or an individual entrepreneur of an obligation to a taxpayer, including payment (remuneration) for goods supplied by the taxpayer (work performed, services rendered).

Not recognized as taxpayer's income received in the form of material benefit, material benefit received from savings on interest for the use of borrowed (credit) funds during grace period established in accordance with Article 6.1-1 federal law dated December 21, 2013 N 353-FZ "On consumer credit(loan)";

2) material benefit received from the acquisition of goods (works, services) in accordance with a civil law contract from individuals, organizations and individual entrepreneurs that are interdependent in relation to the taxpayer;

3) material benefit received from the acquisition valuable papers, derivatives financial instruments, with the exception of the securities specified in paragraph 25 of this Code, in the event of their acquisition during the initial placement by the issuer and securities acquired from a controlled foreign company by a taxpayer recognized as the controlling person of such a foreign company, as well as by a Russian related person of such a controlling person, provided that the income of such a controlled foreign company from the sale of said securities and expenses in the form of the purchase price of securities are excluded from the profit (loss) of this foreign company on the basis of paragraph 10 of this Code.

2. When a taxpayer receives income in the form of a material benefit specified in subparagraph 1 of paragraph 1 of this article, the tax base is determined as:

1) excess of the amount of interest for the use of borrowed (credit) funds, denominated in rubles, calculated on the basis of two-thirds of the current refinancing rate established by central bank the Russian Federation on the date of actual receipt by the taxpayer of income, over the amount of interest calculated on the basis of the terms of the agreement;

2) excess of the amount of interest for the use of borrowed (credit) funds, denominated in foreign currency calculated on the basis of 9 percent per annum, over the amount of interest calculated on the basis of the terms of the contract.

Definition tax base upon receipt of income in the form of material benefits received from savings on interest upon receipt of borrowed (credit) funds, the calculation, deduction and transfer of tax are carried out by the tax agent in the manner prescribed by this Code.

3. When a taxpayer receives income in the form of a material benefit specified in subparagraph 2 of paragraph of this article, the tax base is determined as the excess of the price of identical (homogeneous) goods (works, services) sold by persons who are interdependent in relation to the taxpayer, under normal conditions, to persons , which are not interdependent, over the sales prices of identical (homogeneous) goods (works, services) to the taxpayer.

4. When a taxpayer receives income in the form of material benefit specified in subparagraph 3 of paragraph of this article, the tax base is determined as the excess of the market value of securities, derivative financial instruments over the amount of the taxpayer's actual expenses for their acquisition.

For the purposes of this article, the cost of acquiring securities that are the underlying asset of an option contract includes the amounts paid to the seller for securities in accordance with such a contract, as well as the amount of premium and variation margin paid under option contracts.

Material benefit does not arise when a taxpayer purchases securities under the first or second part of the REPO, provided that the parties fulfill their obligations under the first and second parts of the REPO, as well as in the event of a duly formalized termination of obligations under the first or second part of the REPO on grounds other than proper performance, including the offset of similar counterclaims arising from another REPO operation.

The market value of securities circulating on the organized securities market is determined on the basis of their market price, taking into account the marginal limit of its fluctuations, unless otherwise provided by this article.

The market value of securities not circulating on the organized securities market is determined on the basis of the settlement price of securities, taking into account the marginal limit of its fluctuations, unless otherwise provided by this article.

The market value of securities circulating and not circulating on the organized securities market is determined as of the date of the transaction.

The procedure for determining the market price of securities, the settlement price of securities, as well as the procedure for determining the maximum limit for market price fluctuations are established for the purposes of this Chapter by the Central Bank of the Russian Federation in agreement with the Ministry of Finance of the Russian Federation, subject to the provisions of this paragraph.

The settlement price of an investment unit of a closed-end investment fund (interval unit investment fund) not traded on the organized securities market is the last settlement value of the investment unit determined by management company, which carries out trust management of property constituting the corresponding unit investment fund, in accordance with the legislation of the Russian Federation on investment funds, without taking into account the maximum limit for fluctuations in the settlement price of securities.

The market value of an investment unit of a unit investment fund (circulated and not traded on the organized securities market) in the event of its acquisition from a management company exercising trust management of property constituting the corresponding unit investment fund is recognized as the last estimated value of the investment unit, determined by the specified management company in accordance with with the legislation of the Russian Federation on investment funds, without taking into account the maximum limit of fluctuations in the market or settlement price of securities.

If, in accordance with the legislation of the Russian Federation on investment funds, the issuance of an investment unit of a unit investment fund limited in circulation is carried out not at the estimated value of the investment unit, market value of such an investment unit, the amount of funds for which one investment unit is issued and which is determined in accordance with the rules of trust management of a unit investment fund, without taking into account the maximum fluctuation limit, is recognized.

The market value of the investment share of an open-end mutual investment fund is the last estimated value of the investment share, determined by the management company that carries out trust management of the property constituting the corresponding open-end investment fund, in accordance with the legislation of the Russian Federation on investment funds, without taking into account the marginal limit for fluctuations in the market price of securities .

The market value of derivative financial instruments circulating on the organized market is determined in accordance with paragraph 1 of this Code.

The market value of derivative financial instruments not circulating on an organized market is determined in accordance with paragraph 2 of this Code.

The provisions of Article 212 of the Tax Code of the Russian Federation are used in the following articles:

The tax base
1. When determining the tax base, all incomes 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 benefits, determined in accordance with Article 212 of the Tax Code of the Russian Federation, are taken into account.
Features of determining the tax base, calculating and paying tax on income from transactions with securities and transactions with derivative financial instruments
When buying and selling investment shares of closed and interval shares investment funds not traded on an organized market, the market price of an investment share is the price determined for such shares in accordance with paragraph 4 of Article 212 of the Tax Code of the Russian Federation.
Features of determining the tax base for repo transactions, the object of which are securities
For the purposes of this article, the market value of securities is determined in accordance with paragraph 4 of article 212 of the Tax Code of the Russian Federation. Tax rates
the amount of savings on interest when taxpayers receive borrowed (credit) funds in terms of exceeding the amounts specified in paragraph 2 of Article 212 of the Tax Code of the Russian Federation;
Features of tax calculation by tax agents. The procedure and terms for paying tax by tax agents
The provisions of this paragraph shall not apply to tax agents that are credit institutions in respect of the withholding and payment of tax amounts on income received by clients of the said credit institutions (except for clients who are employees of the said credit institutions) in the form of a material benefit determined in accordance with subparagraphs 1 and 2 paragraphs 1 of article 212 of the Tax Code of the Russian Federation.
Features of the calculation and payment of tax by tax agents when carrying out transactions with securities, transactions with derivative financial instruments, as well as when making payments on securities Russian issuers
2. A tax agent when receiving income from operations (including those recorded on an individual investment account) with securities, operations with derivative financial instruments, when making payments on securities for the purposes of this Article, as well as Article 214.1, paragraph two of paragraph 1 Articles 214.2, Articles 214.3, 214.4 and 214.9 of the Tax Code of the Russian Federation and income received in the form of material benefits from the implementation of these operations and determined in accordance with Article 212 of the Tax Code of the Russian Federation are recognized:

1. The taxpayer's income received in the form of material benefit is:

material benefits received from banks located on the territory of the Russian Federation in connection with operations with bank cards during the interest-free period established in the agreement on the provision of a bank card;

material benefits received from savings on interest for the use of borrowed (credit) funds provided for new construction or the acquisition on the territory of the Russian Federation of a residential building, apartment, room or share (shares) in them, land plots provided for individual housing construction, and land plots on which the purchased residential buildings are located, or shares (shares) in them;

The material benefit specified in paragraphs three and four of this subparagraph shall be exempt from taxation, provided that the taxpayer has the right to receive a property tax deduction established by subparagraph 3 of paragraph 1 of Article of this Code, confirmed by the tax authority in the manner prescribed by paragraph 8 of Article of this Code.

Not recognized as taxpayer income received in the form of material benefit, material benefit received from savings on interest for the use of borrowed (credit) funds during the grace period established in accordance with Article 6.1-1 of the Federal Law of December 21, 2013 N 353-FZ "On consumer credit (loan)";

2) material benefit received from the acquisition of goods (works, services) in accordance with a civil law contract from individuals, organizations and individual entrepreneurs who are interdependent in relation to the taxpayer;

3) material benefit received from the acquisition of securities, derivative financial instruments, with the exception of the securities specified in paragraph 25 of Article of this Code, in the event of their acquisition during the initial placement by the issuer and securities acquired from a controlled foreign company by a taxpayer recognized as a controlling person such a foreign company, as well as a Russian related person of such a controlling person, provided that the income of such a controlled foreign company from the sale of these securities and expenses in the form of the purchase price of securities are excluded from the profit (loss) of this foreign company on the basis of paragraph 10 of Article 309.1 of this Code.

2. When a taxpayer receives income in the form of material benefit specified in subparagraph 1 of paragraph 1 of this article, the tax base is determined as:

1) the excess of the amount of interest for the use of borrowed (credit) funds denominated in rubles, calculated on the basis of two-thirds of the current refinancing rate established by the Central Bank of the Russian Federation on the date the taxpayer actually receives income, over the amount of interest calculated on the basis of the terms of the agreement;

2) the excess of the amount of interest for the use of borrowed (credit) funds, expressed in foreign currency, calculated on the basis of 9 percent per annum, over the amount of interest calculated on the basis of the terms of the contract.

Determination of the tax base upon receipt of income in the form of material benefit received from savings on interest upon receipt of borrowed (credit) funds, calculation, withholding and transfer of tax are carried out by the tax agent in the manner established by this Code.

3. When a taxpayer receives income in the form of a material benefit specified in subparagraph 2 of paragraph 1 of this article, the tax base is determined as the excess of the price of identical (homogeneous) goods (works, services) sold by persons who are interdependent in relation to the taxpayer, under normal conditions persons who are not interdependent, over the sales prices of identical (homogeneous) goods (works, services) to the taxpayer.

4. When a taxpayer receives income in the form of a material benefit specified in subparagraph 3 of paragraph 1 of this article, the tax base is determined as the excess of the market value of securities, derivative financial instruments over the amount of the taxpayer's actual expenses for their acquisition.

The market value of securities circulating and not circulating on the organized securities market is determined as of the date of the transaction.

The procedure for determining the market price of securities, the settlement price of securities, as well as the procedure for determining the maximum limit for market price fluctuations are established for the purposes of this Chapter by the Central Bank of the Russian Federation in agreement with the Ministry of Finance of the Russian Federation, subject to the provisions of this paragraph.

The settlement price of an investment unit of a closed-end investment fund (interval unit investment fund) not circulating on the organized securities market is the last estimated value of the investment unit determined by the management company exercising trust management of the property constituting the corresponding unit investment fund, in accordance with the legislation of the Russian Federation on investment funds, without taking into account the marginal limit of fluctuations in the settlement price of securities.

If, in accordance with the legislation of the Russian Federation on investment funds, the issuance of an investment unit of a mutual investment fund limited in circulation is carried out not at the estimated value of the investment unit, the market value of such an investment unit is recognized as the amount of funds for which one investment unit is issued and which is determined in accordance with with the rules of trust management of a mutual investment fund, without taking into account the limit of fluctuations.

The market value of derivative financial instruments circulating on the organized market is determined in accordance with paragraph 1 of Article of this Code.

The market value of derivative financial instruments not circulating on an organized market is determined in accordance with paragraph 2 of Article of this Code.

Commentary on Art. 212 Tax Code of the Russian Federation

tax code for the purpose of calculating personal income tax, determines the following cases when a taxpayer receives a material benefit.

1. Material benefit from savings on interest for the taxpayer's use of borrowed (credit) funds received from organizations or individual entrepreneurs. An exception is the material benefit received from transactions with credit cards within the interest-free period specified in the credit card agreement.

2. Material benefit received from the acquisition of goods (works, services) in accordance with a civil law contract from individuals, organizations and individual entrepreneurs who are interdependent in relation to the taxpayer.

3. Material benefit received from the acquisition of securities. Let's consider each of these situations in detail.

Financial benefit from interest savings

for the use of borrowed (credit) funds

Material benefit - the amount of savings on interest when taxpayers receive borrowed (credit) funds from organizations or individual entrepreneurs for preferential terms- is defined as follows:

For ruble loans - as an excess of the amount of interest for the use of borrowed funds denominated in rubles, calculated on the basis of 3/4 of the current refinancing rate established by the Central Bank of the Russian Federation on the date of receipt of such funds, over the amount of interest calculated on the basis of the terms of the agreement;

By foreign currency loans- as an excess of the amount of interest for the use of borrowed funds, expressed in foreign currency, calculated on the basis of 9% per annum, over the amount of interest calculated on the basis of the terms of the agreement.

When determining the amount of material benefit, the refinancing rate is applied Central Bank RF, established on the date of receipt of borrowed (credit) funds, regardless of whether it changed during the period of use of these funds.

Since December 26, 2005, the refinancing rate of the Central Bank of the Russian Federation has been 12 percent per annum.

The tax base for obtaining material benefits in the form of savings on interest is determined on the day interest is paid on the received borrowed (credit) funds (but at least once a calendar year).

Material benefit is determined only if the borrowed funds are received under a loan or credit agreement.

Loan - the transfer of ownership of money or other things defined by generic characteristics, by the lender to the borrower, with the condition that the borrower repays the loan amount or an equal number of other things of the same kind and quality received by him on the basis of an agreement concluded between the participants in the transaction (Article 807 of the Civil Code of the Russian Federation).

A loan agreement between citizens must be concluded in writing if its amount exceeds at least 10 times minimum size wages, and if the lender is a legal entity - regardless of the amount (clause 1, article 808 of the Civil Code of the Russian Federation). In other cases, the loan agreement may be concluded orally. The loan agreement is considered concluded from the moment of transfer of money or other things.

Credit - provision by a bank or other credit institution(creditor) of funds (loan) to the borrower in the amount and on the terms, stipulated by the agreement, with the return by the borrower of the amount of money received and the payment of interest on the loan (Article 819 of the Civil Code of the Russian Federation).

In this way, loan agreement is concluded in limited cases, since only banks or other credit institutions can act as creditors under such an agreement, and credit funds can only be issued in cash. Unlike a loan agreement, a loan agreement must always be in writing. Failure to comply with the written form entails the invalidity of such an agreement, and it is considered void (Article 820 of the Civil Code of the Russian Federation).

The material benefit received from savings on interest for the taxpayer's use of borrowed (credit) funds is taxed at a rate of 35 percent (clause 2, article 224 of the Tax Code of the Russian Federation).

An exception to this rule is "income in the form of material benefits received from savings on interest for the use by taxpayers of targeted loans (credits) received from credit and other Russian organizations and actually spent by them on new construction or acquisition on the territory of the Russian Federation of a residential house, apartment or share (shares) in them, on the basis of documents confirming the intended use of such funds.

In this case, the material benefit received by a taxpayer - a resident of the Russian Federation is subject to personal income tax at a rate of 13 percent.

Please note: for individuals who are not tax residents of the Russian Federation, the tax on income from the amounts of material benefits in the form of savings on interest is withheld at a rate of 30 percent (clause 3 of article 224 of the Tax Code of the Russian Federation).

When determining the amount of material benefit in the form of savings on interest for the use of borrowed (credit) funds, subject to taxation at a rate of 35 percent, tax deductions not provided (clause 4, article 210 of the Tax Code of the Russian Federation).

Calculate the tax on material gain and transfer this amount to the budget tax agent- an organization or an individual entrepreneur that has provided an individual with a loan (credit) on preferential terms.

The tax can be withheld from any other income of an employee that he receives in an organization or from an entrepreneur (for example, from the amount of salary given in cash, dividends, material assistance, etc.), upon the first payment of income in cash. At the same time, the amount of tax withheld cannot exceed 50 percent of the amount of payments due to be issued to the employee.

Please note: the duties of a tax agent are assigned to the organization by article 226 of the Tax Code of the Russian Federation and for their execution it is not required to obtain powers of attorney from individuals to withhold and transfer tax.

If the employee does not receive other income in the organization or the period during which the tax can be withheld exceeds 12 months, the tax agent must report this to his tax office(according to Form 2-NDFL) and indicate the amount of tax debt of an individual. This must be done no later than one month after the employee receives income.

Material benefit is not determined in the following cases:

If borrowed funds are received by the taxpayer from individuals who are not individual entrepreneurs;

When a taxpayer concludes a commercial loan agreement, as defined by Article 823 of the Civil Code of the Russian Federation, or an agreement for the purchase of goods on credit or in installments;

In case of untimely return by the employee of the organization of previously issued accountable amounts.

We justify the last assertion.

Employees who have received cash on account are required, no later than three working days after the expiration of the period for which they were issued, to submit a report on the amounts spent to the accounting department of the organization and make a final settlement on them. This procedure is established by paragraph 11 of the Procedure for maintaining cash transactions in the Russian Federation, approved by the decision of the Board of Directors of the Central Bank of the Russian Federation of September 22, 1993 N 40.

Therefore, the untimely return of money by the accountable person to the cash desk of the organization is a violation of the Procedure for conducting cash transactions. However, the law does not provide for any punishment for this violation.

In addition, by order of the head of the organization, any period for which money is issued for a report can be established, for example, 60 or 90 days. This will allow not only to avoid violation of cash discipline, but also the claims of the tax authorities. However, in any case, there is no material benefit for the employee.

Even if the employee did not return the money received under the report within the prescribed period, the right of ownership to them does not transfer to him. Therefore, not returned on time cash are not the income of the accountable person. (Such income can only arise if the funds that are not returned on time are debited from the employee at the expense of the organization.)

In this case, there is no material benefit. As mentioned above, the loan agreement must be concluded in writing. When issuing money against a report, such an agreement is not concluded, and there are no loan relations between the organization and the employee. Therefore, there is no reason to calculate material benefits in the form of savings on interest. The employee only forms a debt for the return of funds received from the organization under the report.

Material benefit received from the purchase of goods

(works, services) on preferential terms

A material benefit arises if a person buys goods (works, services) at preferential prices from an organization (individual entrepreneur), in relation to which he is an interdependent person.

The amount of material benefit in this situation is defined as the excess of the price of identical (homogeneous) goods (works, services) sold under normal conditions by this organization (individual entrepreneur) over the prices of sales of goods (works, services) to the taxpayer.

The tax on the amount of material benefit received is paid by taxpayers - tax residents of the Russian Federation at a rate of 13 percent, and by taxpayers who are not tax residents of the Russian Federation - at a rate of 30 percent.

According to paragraph 1 of Article 20 of the Tax Code of the Russian Federation, organizations or individuals are considered interdependent if the relationship between them affects their economic activity. This situation is possible when:

One organization directly or indirectly (for example, through a subsidiary) owns more than 20 percent of the authorized capital of another organization;

One individual is subordinate to another according to his official position (for example, the director of the enterprise and one of the employees, the head of the department and his subordinate);

Individuals are spouses or relatives, adoptive parent and adopted child, guardian and ward.

Please note: the Tax Code of the Russian Federation does not provide for other formal grounds on which enterprises are automatically recognized as interdependent. Therefore, until the opposite is proven in court, the organization and its employees are not recognized interdependent persons.

Thus, if you literally follow the norms of the Tax Code, the tax authorities do not have the right to calculate material benefits if an enterprise sells products to its employees at preferential prices.

However, the court may recognize persons as interdependent in other cases. True, for this, the tax authorities must prove to the court that the relationship between these persons influenced the results of transactions for the sale of goods (works, services). This is indicated by paragraph 2 of Article 20 of the Tax Code of the Russian Federation.

Unfortunately, the existing arbitration practice suggests that judges in many cases recognize the organization and its employees as interdependent persons. For example, in the information letter of the Supreme Arbitration Court RF dated March 17, 2003 N 71 states that, taking into account specific circumstances, a legal entity and its director may be recognized as interdependent.

The situation is even worse if the goods are sold by an individual entrepreneur to his employee. Then the material benefit will need to be calculated. Indeed, in this case, the employee is subordinate to the entrepreneur, which means that, according to Article 20 of the Tax Code of the Russian Federation, they are considered interdependent persons.

Therefore, in order to minimize possible fiscal risks, it is necessary to avoid a situation where an organization (individual entrepreneur) sells goods to its employees at preferential prices.

The material benefit received from the purchase of securities is the difference between the amount that the buyer - an individual paid for them, and the market price of the securities, taking into account the maximum fluctuation limit for this price. So it is written in paragraph 4 of Article 212 of the Tax Code of the Russian Federation. Tax on such material gain can be paid by both the buyer of securities and his authorized representative - the organization that sold these securities. In this case, the market price of the paper must be taken on the day when the transaction was concluded.

The procedure for determining the market price and the marginal limit of its fluctuations was approved by the Decree of the Federal Commission for Securities of Russia dated December 24, 2003 N 03-52 / ps. Moreover, this document deals only with issue-grade securities that circulate on the organized market. This means that if an employee has purchased securities from a company that are not circulated on such a market (for example, non-financial bills), then there is no need to talk about material benefits.

Market prices of securities circulating on the organized market can be obtained from the organizers of the auction or on their websites on the Internet. The FCSM set the maximum limit for market price fluctuations at 20 percent.

In this situation, tax on the amount of material benefit received by the taxpayer is calculated at a rate of 13 percent.

Judicial practice under Article 212 of the Tax Code of the Russian Federation

Determination of the Supreme Court of the Russian Federation of October 26, 2017 N 303-KG17-15276 in case N A04-11406 / 2016

In addition, having evaluated the evidence presented in the case file and guided by the provisions of the article of the Tax Code, the courts established that in the audited period the entrepreneur used borrowed funds received from the companies "BlagZhDservis", "TST" under loan agreements and, given the lack of documentary evidence for the payment percent for the use of borrowed funds to the specified lenders, received income in the form of savings on interest (interest-free loan), in connection with which they recognized the accrual of tax on material benefits for the use of borrowed funds as lawful.

Tax Code, N 117-FZ | Art. 212 Tax Code of the Russian Federation

Article 212 of the Tax Code of the Russian Federation. Features of determining the tax base when receiving income in the form of material benefits (current version)

1. The taxpayer's income received in the form of material benefit is:

material benefits received from savings on interest for the use of borrowed (credit) funds provided for new construction or the acquisition on the territory of the Russian Federation of a residential building, apartment, room or share (shares) in them, land plots provided for individual housing construction, and land plots on which the purchased residential buildings are located, or shares (shares) in them;

The material benefit specified in paragraphs three and four of this subparagraph shall be exempt from taxation, provided that the taxpayer has the right to receive a property tax deduction established by subparagraph 3 of paragraph 1 of Article 220 of this Code, confirmed by the tax authority in the manner prescribed by paragraph 8 of Article 220 of this Code .

2) material benefit received from the acquisition of goods (works, services) in accordance with a civil law contract from individuals, organizations and individual entrepreneurs who are interdependent in relation to the taxpayer;

3) material benefit received from the acquisition of securities, derivative financial instruments, with the exception of the securities specified in paragraph 25 of Article 217 of this Code, in the event of their acquisition during the initial placement by the issuer and securities acquired from a controlled foreign company by a taxpayer recognized as controlling a person of such a foreign company, as well as a Russian related person of such a controlling person, provided that the income of such a controlled foreign company from the sale of these securities and expenses in the form of the purchase price of securities are excluded from the profit (loss) of this foreign company on the basis of paragraph 10 of Article 309.1 of this Code.

2. When a taxpayer receives income in the form of material benefit specified in subparagraph 1 of paragraph 1 of this article, the tax base is determined as:

The market value of securities circulating and not circulating on the organized securities market is determined as of the date of the transaction.

The procedure for determining the market price of securities, the settlement price of securities, as well as the procedure for determining the maximum limit for market price fluctuations are established for the purposes of this Chapter by the Central Bank of the Russian Federation in agreement with the Ministry of Finance of the Russian Federation, subject to the provisions of this paragraph.

The market value of derivative financial instruments circulating on the organized market is determined in accordance with paragraph 1 of Article 305 of this Code.

The market value of derivative financial instruments not circulating on an organized market is determined in accordance with paragraph 2 of Article 305 of this Code.

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Commentary on Art. 212 Tax Code of the Russian Federation

1. The specifics of the rules of paragraph 1 of Art. 212 is that they exhaustively (that is, this list cannot be expanded) provide for the types of material benefits (for the purposes of taxation by personal income tax). These include:

1) material benefit received from savings on interest for the use of borrowed funds by the taxpayer, incl. credit funds. In this case, the following circumstances should be taken into account:

a) the lender (i.e. the person who provided the taxpayer with borrowed funds) may be:

Any individual or any organization (not being a bank or other credit organization) having the status of a legal entity that has entered into a loan agreement with a taxpayer (borrower) (under this agreement, one party (lender) transfers money or other things to the ownership of the other party (borrower) , certain generic characteristics, and the borrower undertakes to return to the lender the same amount of money (loan amount) or an equal amount of other things received by him of the same kind and quality.The loan agreement is considered concluded from the moment the money or other things are transferred. the subject of a loan agreement on the territory of the Russian Federation in compliance with the rules of Articles 140, 141, 317 of the Civil Code (Article 807 of the Civil Code).

Unless otherwise provided by law or the loan agreement, the lender has the right to receive interest from the borrower on the amount of loans in the amount and in the manner specified in the agreement. In the absence of conditions on the amount of interest in the agreement, their amount is determined by the refinancing rate existing at the place of residence of the lender (and if the lender is a legal entity, at its location) the refinancing rate (as long as it is the same for the entire Russian Federation) on the day the borrower pays the amount of the debt or its corresponding part . Unless otherwise agreed (in the loan agreement), interest is paid monthly, until the day the loan amount is returned (clauses 1, 2, article 807 of the Civil Code). A loan agreement is considered interest-free (unless it expressly provides otherwise) in the following cases: when the agreement is concluded between citizens for an amount not exceeding 50 minimum wages . 5 of the Law on the Minimum Wage), and is not related to the implementation entrepreneurial activity at least one of the parties; when, under an agreement, the borrower is transferred not money, but other things defined by generic characteristics (paragraph 3 of article 809 of the Civil Code). However, in subparagraph 1 of paragraph 1 of Art. 212 refers to both cases of granting a loan under interest-free loan agreements, and cases when interest must be accrued under a loan agreement;

Bank (or other credit institution, if the provision of a loan to an individual is allowed by a license issued to it by the Central Bank of the Russian Federation in the prescribed manner). Borrowed funds in this case, firstly, act only in the form of cash, and, secondly, are provided under a loan agreement (this is a special kind of loan agreement).

Under a loan agreement, a bank or other credit organization (creditor) undertakes to provide funds (credit) to the borrower in the amount and on the terms stipulated by the agreement, and the borrower undertakes to return the amount of money received and pay interest on it (Article 819 of the Civil Code) (see about more about this in the book: A. N. Guev, Article-by-article commentary on part 2 of the Civil Code of the Russian Federation (ed. 3), pp. 424 - 442);

b) "savings on interest" (mentioned in subparagraph 1 of paragraph 1 of Article 212) is formed due to the fact that:

Funds under a loan agreement (or cash and other funds under a loan agreement) are provided either under an interest-free loan agreement or under such a loan agreement (loan agreement) in which the interest rate is lower than the interest rate calculated in the manner specified in paragraph 2 tbsp. 212 (see below);

Cash or other funds are provided (on the conditions mentioned above) only by organizations (including both commercial and non-commercial) and individual entrepreneurs, but not by individuals who are not individual entrepreneurs (for example, if one neighbor gave a loan to another, and no interest was charged on the loan).

A number of questions arose in the practice of clients of the law firm "Yukang": do the rules of subparagraph 1, paragraph 1, Art. 212 of the Tax Code to cases when an individual entrepreneur receives a so-called. commodity credit (a commodity credit agreement provides for the obligation of one party to provide the other party with things defined by generic characteristics. At the same time, the rules on a credit agreement apply to such an agreement, unless otherwise provided by the commodity credit agreement and does not follow from the essence of the obligation. At the same time, the conditions for quantity, assortment, completeness, quality, container and (or) conditions for the items provided must comply with similar conditions in the contract for the sale of goods (Articles 454 - 505, 819 - 822 of the Civil Code)? a commercial loan was granted (recall that contracts, the execution of which is associated with the transfer of money or other things determined by generic characteristics to the ownership of another party, may provide for the provision of a loan, including in the form of an advance payment, prepayment, deferral and installment payment goods, works, services (the so-called commercial loan)? Are there any rules on a loan agreement for a commercial loan, unless otherwise provided by the rules on the agreement from which the corresponding obligation arose, and whether they contradict the essence of such an obligation (Art. 823 GK)?

By decision of the Office of the Federal tax service in the Republic of Mordovia dated February 18, 2014 N 13-09/01738, the decision of the lower tax authority was left unchanged. After evaluating the evidence presented in the case file, guided by Articles 210, 212, 217, 223, 224, 346.11 of the Tax Code of the Russian Federation, Articles 807, 809 of the Civil Code of the Russian Federation, the court came to the conclusion that in the audited period the Entrepreneur used borrowed funds and received income in the form of savings on interest (interest-free loan). Under these circumstances, the court refused to satisfy the claims ...

Decision of the Supreme Court: Definition N VAS-13839/09, Supreme Arbitration Court, supervision

The courts of appeal and cassation concluded that the inspectorate did not provide evidence that the disputed amount is a material benefit in the sense of Article 212 of the Tax Code of the Russian Federation and is the entrepreneur's income, and the entrepreneur did not prove the receipt of income from the sale real estate. The incorrect application by the courts of the provisions of Articles 40, 209, 212, 214.1, 280 of the Tax Code of the Russian Federation has not been established ...

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1. The taxpayer's income received in the form of material benefit is:

material benefits received from savings on interest for the use of borrowed (credit) funds provided for new construction or the acquisition on the territory of the Russian Federation of a residential building, apartment, room or share (shares) in them, land plots provided for individual housing construction, and land plots on which the purchased residential buildings are located, or shares (shares) in them;

The material benefit specified in the third and fourth paragraphs of this subparagraph shall be exempt from taxation, provided that the taxpayer has the right to receive a property tax deduction established and confirmed by the tax authority in the manner prescribed by paragraph 8 of Article 220 of this Code.

2) material benefit received from the acquisition of goods (works, services) in accordance with a civil law contract from individuals, organizations and individual entrepreneurs who are interdependent in relation to the taxpayer;

3) material benefit received from the acquisition of securities, derivative financial instruments, with the exception of securities, in the event of their acquisition during the initial placement by the issuer and securities acquired from a controlled foreign company by a taxpayer recognized as the controlling person of such a foreign company, as well as a Russian affiliate by such a controlling person, provided that the income of such a controlled foreign company from the sale of said securities and expenses in the form of the purchase price of securities are excluded from the profit (loss) of this foreign company on the basis of paragraph 10 of Article 309.1 of this Code.

2. When a taxpayer receives income in the form of material benefit specified in subparagraph 1 of paragraph 1 of this article, the tax base is determined as:

The market value of securities circulating and not circulating on the organized securities market is determined as of the date of the transaction.

The procedure for determining the market price of securities, the settlement price of securities, as well as the procedure for determining the maximum limit for market price fluctuations are established for the purposes of this Chapter by the Central Bank of the Russian Federation in agreement with the Ministry of Finance of the Russian Federation, subject to the provisions of this paragraph.

The market value of derivative financial instruments circulating on the organized market is determined in accordance with paragraph 1 of Article 305 of this Code.

The market value of derivative financial instruments not circulating on an organized market is determined in accordance with paragraph 2 of Article 305 of this Code.

Commentary on Art. 212 Tax Code of the Russian Federation

The Tax Code, in order to calculate personal income tax, defines the following cases when a taxpayer receives a material benefit.

1. Material benefit from savings on interest for the taxpayer's use of borrowed (credit) funds received from organizations or individual entrepreneurs. An exception is the material benefit received from credit card transactions during the interest-free period specified in the credit card agreement.

3. Material benefit received from the acquisition of securities. Let's consider each of these situations in detail.

Material benefit received from savings on interest for the use of borrowed (credit) funds

Material benefit - the amount of savings on interest when taxpayers receive borrowed (credit) funds from organizations or individual entrepreneurs on preferential terms - is determined as follows:

a) for ruble loans - as an excess of the amount of interest for the use of borrowed funds,

denominated in rubles, calculated on the basis of 2/3 of the current refinancing rate set by the Bank of Russia on the date of receipt of such funds, over the amount of interest calculated on the basis of the terms of the agreement (clause 1, clause 1, article 212, clause 1, clause 2, article 212 of the Tax Code of the Russian Federation);

b) for foreign currency loans - as an excess of the amount of interest for the use of borrowed funds,

denominated in foreign currency, calculated on the basis of 9% per annum, over the amount of interest calculated on the basis of the terms of the contract (clause 1, clause 1, article 212, clause 2, clause 2, article 212 of the Tax Code of the Russian Federation).

When determining the amount of material benefit, the refinancing rate of the Bank of Russia, established on the date of receipt of borrowed (credit) funds, is applied, regardless of whether it changed during the period of use of these funds.

The tax base for obtaining material benefits in the form of savings on interest is determined on the day interest is paid on the received borrowed (credit) funds (but at least once a calendar year).

Material benefit is determined only if the borrowed funds are received under a loan or credit agreement.

A loan is the transfer of ownership of money or other things defined by generic characteristics, by the lender to the borrower, with the condition that the borrower return the loan amount or an equal number of other things of the same kind and quality received by him on the basis of an agreement concluded between the participants in the transaction (Article 807 of the Civil Code of the Russian Federation).

A loan agreement between citizens must be concluded in writing if its amount exceeds at least 10 times the minimum wage, and if the lender is a legal entity, regardless of the amount (clause 1, article 808 of the Civil Code of the Russian Federation). In other cases, the loan agreement may be concluded orally. The loan agreement is considered concluded from the moment of transfer of money or other things.

Credit - the provision by a bank or other credit organization (lender) of funds (credit) to the borrower in the amount and on the terms stipulated by the agreement, with the borrower returning the amount of money received and paying interest on the loan (Article 819 of the Civil Code of the Russian Federation).

Thus, a loan agreement is concluded in limited cases, since only banks or other credit institutions can act as creditors under such an agreement, and credit funds can only be issued in cash. Unlike a loan agreement, a loan agreement must always be in writing. Failure to comply with the written form entails the invalidity of such an agreement, and it is considered void (Article 820 of the Civil Code of the Russian Federation).

Borrowed funds do not lead to the formation of economic benefits for an individual (Article 41 of the Tax Code of the Russian Federation). After all, having received a loan, it will have to be obliged to return them. Therefore, there is no need to withhold personal income tax from the amount of borrowed funds.

However, if, having issued the borrowed funds, an individual is subsequently released from the obligation to repay them, tax implications will change for him.

In this case, in fact, donation will take place, since debt forgiveness is a kind of donation (paragraph 3 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 21, 2005 N 104).

When donating the loan amount, the borrower is relieved of the obligation to repay the debt and it becomes possible to dispose of the funds at his own discretion, that is, he has an economic benefit and, accordingly, income in the amount of the forgiven debt (gift). And these amounts are subject to personal income tax in accordance with the generally established procedure using tax rate 13% (Letter of the Ministry of Finance of Russia dated July 15, 2014 N 03-04-06 / 34520).

The material benefit received from savings on interest for the use of borrowed (credit) funds by the taxpayer is taxed at a rate of 35% (clause 2 of article 224 of the Tax Code of the Russian Federation).

By general rule the lender has the right to receive interest from the borrower on the amount of the loan in the amount and in the manner determined by the loan agreement (clause 1, article 809 of the Civil Code of the Russian Federation).

If there is no condition on the amount of interest in the agreement, the amount of interest is determined by the rate existing at the location of the lender-organization bank interest(refinancing rate) on the day the borrower pays the amount of the debt or its corresponding part. If the procedure for paying interest is not specified in the loan agreement, interest must be paid monthly until the day the loan amount is returned (clause 2, article 809 of the Civil Code of the Russian Federation).

Under a loan agreement, a bank or other credit organization (creditor) undertakes to provide funds (credit) to the borrower in the amount and on the terms stipulated by the agreement, and the borrower undertakes to return the amount of money received and pay interest on it (clause 1, article 819 of the Civil Code of the Russian Federation ).

In accordance with paragraphs. 1 p. 1 art. 212, paras. 1 p. 2 art. 212 of the Tax Code of the Russian Federation, the material benefit from savings on interest arises if:

a) the loan (credit) was provided in rubles:

b) the rate at which interest is charged for the use of borrowed funds is below 2/3 of the refinancing rate of the Bank of Russia.

In this case, the refinancing rate of the Bank of Russia, effective on the date of receipt of income in the form of material benefit, is applied. Since September 14, 2012, a refinancing rate of 8.25% per annum has been in effect (Decree of the Bank of Russia dated September 13, 2012 N 2873-U). The date of receipt of income in the form of material benefit will be the date of actual payment of interest in a reduced amount (including in case of late payment).

Personal income tax on material benefits is calculated at the following rates:

a) 35% - in the case when the borrower is a tax resident of the Russian Federation (clause 2 of article 224 of the Tax Code

b) 30% - if the borrower is not a tax resident of the Russian Federation (clause 3 of article 224 of the Tax

Code of the Russian Federation).

To calculate the material benefit on an interest-bearing loan issued in rubles, the

Refinancing rate

Material Bank of Russia, Benefit rate = (2/3 x effective on the date - percent) x Amount: from savings in obtaining income in the form of a loan loan on a percentage of material benefit

Number of days in the period: 365 (366) days x loan, . for which interest is charged

Example. On January 13, 2014, the organization issued a loan to its employee in the amount of 400,000 rubles. for a period of 10 months at 5% per annum.

According to the terms of the loan agreement, interest must be paid by the employee at a time when the loan is repaid. The employee is a tax resident of the Russian Federation.

On November 13, 2014, the employee repaid the loan and paid interest. The loan period was 305 calendar days. The refinancing rate of the Bank of Russia as of the interest payment date is 8.25%. Let's define:

1) the amount of interest that the employee must pay when returning borrowed funds. It will amount to 16,712 rubles. 33 kop. (400,000 rubles x 5% / 365 days x 305 days);

2) material benefit from savings on interest. It will amount to 7353 rubles. 4 kop. (400,000 rubles x (2/3 x 8.25% - 5%) / 365 days x 305 days);

3) the amount of personal income tax to be withheld by the lender. Personal income tax from the amount of material benefits will be - 2573.7 rubles. (7353.4 rubles x 35%).

In accordance with paragraphs. 1 p. 1 art. 212, paras. 2 p. 2 art. 212 of the Tax Code of the Russian Federation, the material benefit from savings on interest arises if:

a) the loan (credit) was granted in a foreign currency;

b) interest on borrowed funds is charged at a rate below 9% per annum.

Please note that Russian organizations that are not credit institutions and individual entrepreneurs are not entitled to issue loans in foreign currency. Russian citizens. After all, according to

paragraph 1 of Art. 9 of the Federal Law of December 10, 2003 N 173-FZ "On currency regulation and currency control» (hereinafter - Law N 173-FZ) foreign exchange transactions between residents are prohibited, with the exception of those listed in this paragraph. At the same time, the possibility of currency transactions between residents related to the receipt and repayment of loans, in paragraph 1 of Art. 9 of Law N 173-FZ is not named.

If an individual has received a loan from foreign bank, income in the form of material benefits from savings on interest for the use of borrowed funds received from a foreign organization, refers to income from sources outside the Russian Federation.

Thus, when an individual receives a loan in foreign currency from a foreign organization, the amount of interest on which is less than the amount of interest calculated on the basis of 9% per annum, the borrower receives taxable income in the form of material benefits related to income from sources outside the Russian Federation .

The obligation of individuals - tax residents of the Russian Federation, receiving income from sources outside the Russian Federation, is established to independently calculate, declare and payment of personal income tax based on the amounts of such income (Letter of the Ministry of Finance of Russia dated February 27, 2012 N 03-04-05 / 6-221).

To calculate the material benefit on an interest-bearing loan issued in a foreign currency, the following formula is used:

Loan amount Number of days Material in rubles at Rate 365 in the period benefit from = day x (9% - percent) : (366) x provision. savings on loan repayment days of a loan for which interest is charged interest

Please note that there are exceptions to every rule. Thus, the material benefit received in connection with operations with credit cards during the interest-free period established in the agreement on the provision of a bank card is not subject to personal income tax. It is not necessary to withhold tax on material benefits received from savings on interest for the use of borrowed (credit) funds for new construction or the acquisition in the territory of the Russian Federation of a residential building, apartment, room or share (shares) in them, provided that the taxpayer has the right to receiving a property tax deduction in accordance with. Currently, such material benefits are taxed at a rate of 13%.

Calculate the tax on material gain and transfer this amount to the budget must be a tax agent - an organization or an individual entrepreneur who has provided an individual with a loan (credit) on preferential terms.

The tax can be withheld from any other income of an employee that he receives in an organization or from an entrepreneur (for example, from the amount of salary given in cash, dividends, material assistance, etc.), upon the first payment of income in cash. At the same time, the amount of tax withheld cannot exceed 50% of the amount of payments due to be issued to the employee (clause 4, article 226 of the Tax Code of the Russian Federation).

Please note: the duties of a tax agent are assigned to the organization Art. 226 of the Tax Code of the Russian Federation and for their execution it is not required to obtain powers of attorney from individuals to withhold and transfer tax.

If it is impossible to withhold from the taxpayer the calculated amount of tax, the tax agent is obliged, not later than one month from the date of the end of the tax period in which the relevant circumstances arose, to inform the taxpayer and the tax authority at the place of its registration of the impossibility to withhold the tax and the amount of tax in writing.

Material benefit is not determined in the following cases:

- if the borrowed funds are received by the taxpayer from individuals who are not individual entrepreneurs;

- upon conclusion by the taxpayer of a commercial loan agreement, determined by Art. 823

the Civil Code of the Russian Federation, or an agreement for the purchase of goods on credit or by installments;

- in case of untimely return by the employee of the organization of previously issued accountable amounts.

We justify the last assertion.

Employees who received cash against a report are obliged, no later than three working days after the expiration of the period for which they were issued, to submit to the accounting department of the organization a report on the amounts spent and make a final settlement on them (paragraph 2, clause 6.3 of the Directive of the Bank of Russia dated March 11 2014 N 3210-U "On the procedure for conducting cash transactions by legal entities and the simplified procedure for conducting cash transactions by individual entrepreneurs and small businesses").

Even if the employee did not return the money received under the report within the prescribed period, the right of ownership to them does not transfer to him. Therefore, funds not returned on time are not the income of the accountable person. (Such income can only arise if the funds that are not returned on time are debited from the employee at the expense of the organization.)

In this case, there is no material benefit. As mentioned above, the loan agreement must be concluded in writing. When issuing money against a report, such an agreement is not concluded and there are no loan relations between the organization and the employee. Therefore, there is no reason to calculate material benefits in the form of savings on interest. The employee only forms a debt for the return of funds received from the organization under the report.

Material benefit for the use of interest-free borrowed (credit) funds

The material benefit from savings on interest also arises when an individual receives an interest-free loan.

If an organization has issued an interest-free loan, the taxpayer's tax base is determined as the amount of interest calculated on the basis of two-thirds of the Bank of Russia refinancing rate effective on the date of receipt of income from the part of the debt on the loan remaining from the moment of the previous repayment, for the number of days that have passed since the previous repayment (or from the date of issuance of the loan in the case of the initial repayment of the loan).

In accordance with the date of actual receipt of income upon receipt of income in the form of material benefit is determined as the day of payment by the taxpayer of interest on received borrowed (credit) funds.

If an organization has issued an interest-free loan, the actual date of receipt of income in the form of material benefit should be considered the corresponding dates of the actual return of borrowed funds (Letter of the Ministry of Finance of Russia dated August 9, 2010 N 03-04-06 / 6-173).

At the same time, income in the form of material benefits from savings on interest for the use of borrowed (credit) funds arises from the taxpayer when receiving these funds only from organizations or individual entrepreneurs. In the case of obtaining an interest-free loan at the expense of the budget of a constituent entity of the Russian Federation, and not at the expense of organizations and individual entrepreneurs, as provided for in paragraphs. 1 p. 1 art. 212 of the Tax Code of the Russian Federation, income in the form of material benefit subject to personal income tax does not arise when repaying the said loan (Letter of the Ministry of Finance of Russia dated May 8, 2013 N 03-04-06 / 16299).

In this case, the loan (credit) agreement may provide for the repayment of an interest-free loan (credit) with any frequency.

If the agreement for the provision of an interest-free loan provides monthly repayment loan, income in the form of material benefit in this case will arise on each date of repayment of borrowed funds (Letter of the Ministry of Finance of Russia dated March 26, 2013 N 03-04-05 / 4-282).

Thus, income in the form of material benefit under the interest-free loan agreement will arise from the taxpayer on each date of repayment of borrowed funds. At the same time, the tax base for personal income tax should be calculated based on the amount of borrowed funds to be returned.

To calculate the material benefit on an interest-free loan issued in rubles, the

Rate Material refinancing benefit for Bank of Russia loan amount for 365 interest-free = (remaining x 2/3 x repayment date: (366) x loan, part of the loan amount (or days of the loan issued) of its remaining part in rubles)

Number of calendar x days. use

Example. On January 13, 2014, the organization issued a loan to its employee in the amount of 400,000 rubles. for a period of 10 months. The employee is a tax resident of the Russian Federation.

According to the terms of the agreement, no interest is paid for the use of borrowed funds. In accordance with the terms of the agreement, it is provided that the return of funds is carried out in equal installments of 40,000 rubles. On the 13th day of each calendar month following the month of signing the loan agreement.

The loan period was 305 calendar days. The refinancing rate of the Bank of Russia as of the interest payment date is 8.25%.

Let's determine the material benefit from savings on interest for the use of borrowed funds and the amount of personal income tax:

as of February 13, 2014, the material benefit will amount to 1868.5 rubles. (400,000 rubles x 2/3 x 8.25%: 365 x 32

days). In this case, personal income tax will amount to 654 rubles; as of March 13, 2014, the material benefit will amount to 3,200.5 rubles. ((400,000 - 40,000) x 2/3 x 8.25% : 365 x 60 days). In this case, personal income tax will amount to 1120.2 rubles; as of April 13, 2014, the material benefit will amount to 4387.9 rubles. ((400,000 - 80,000) x 2/3 x 8.25% : 365

x 91 days). In this case, personal income tax will amount to 1535.8 rubles; as of May 13, 2014, the material benefit will amount to 5105.2 rubles. ((400,000 - 120,000) x 2/3 x 8.25% : 365 x 121 days). In this case, personal income tax will amount to 1,786.8 rubles; as of June 13, 2014, the material benefit will amount to 5497 rubles. ((400,000 - 160,000) x 2/3 x 8.25% : 365 x 152 days). In this case, personal income tax will amount to 1924 rubles; as of July 13, 2014, the material benefit will amount to 5515.1 rubles. ((400,000 - 200,000) x 2/3 x 8.25% : 365 x 183 days). In this case, personal income tax will amount to 1930.3 rubles; as of August 13, 2014, the material benefit will amount to 5135.3 rubles. ((400,000 - 240,000) x 2/3 x 8.25% : 365 x 213 days). In this case, personal income tax will amount to 1,797.4 rubles; as of September 13, 2014, the material benefit will amount to 4412 rubles. ((400,000 - 280,000) x 2/3 x 8.25% : 365 x 244 days) In this case, personal income tax will amount to 1544 rubles; as of October 13, 2014, the material benefit will amount to 3,303 rubles. ((400,000 - 320,000) x 2/3 x 8.25% : 365

x 274 days). In this case, personal income tax will amount to 1156 rubles; as of November 13, 2014, the material benefit will be 1838 rubles. ((400,000 - 360,000) x 2/3 x 8.25% : 365 x 305 days). In this case, personal income tax will amount to 643.4 rubles.

Note that if an individual is released from the obligation to return the borrowed funds received by him under an interest-free loan agreement, he will subsequently be released from the obligation to return them, the specified will be qualified as a donation. When concluding an interest-free loan donation agreement, the taxpayer is relieved of the obligation to return the funds received on loan. Accordingly, in this case, the taxpayer does not receive income in the form of material benefits for using an interest-free loan (Letter of the Ministry of Finance of Russia dated July 15, 2014 N 03-04-06 / 34520).

Material benefit from savings on interest when acquiring real estate and land plots

In accordance with paragraphs. 1 p. 1 art. 212 of the Tax Code of the Russian Federation, income in the form of material benefits from savings on interest for the use of borrowed (credit) funds provided for new construction or the acquisition in the territory of the Russian Federation of a residential building, apartment, room or share (shares) in them are exempt from income tax individuals, provided that the taxpayer has the right to receive a property tax deduction, established by paragraphs. 3 p. 1 art. 220 of the Tax Code of the Russian Federation, confirmed by the tax authority in the manner prescribed by paragraph 8 of Art. 220 of the Tax Code of the Russian Federation.

Thus, incomes in the form of material benefits from savings on interest for the use of borrowed (credit) funds are exempted from taxation in terms of the loan amounts spent directly on the purchase of housing.

At the same time, the size of the material benefit from savings on interest for the use of borrowed (credit) funds actually spent on the purchase of housing, exempted from personal income tax, according to the Russian Ministry of Finance, can be determined on the basis of the ratio of the loan amount spent by the taxpayer to purchase an apartment, and total amount loan (Letter of the Ministry of Finance of Russia dated August 4, 2014 N 03-04-06 / 38346). Personal income tax is not subject to material benefits received from savings on interest for the use of borrowed (credit) funds that were issued for:

- acquisition (construction) on the territory of the Russian Federation of a residential building, apartment, room or share (s) in them;

- acquisition in the territory of the Russian Federation of land plots provided for individual housing construction, or land plots on which the purchased residential buildings are located, or shares (shares) in them.

In order to be exempt from personal income tax of material benefits from savings on interest, it is necessary that the following conditions are met:

1) target nature of the loan (credit) agreement. According to paragraph 1 of Art. 814 of the Civil Code of the Russian Federation, a loan is targeted if the loan agreement is concluded with the condition that the borrower uses the funds received for certain purposes. In accordance with paragraph 2 of Art. 819 of the Civil Code of the Russian Federation, the rules provided for in paragraph 1 (“Loan”) apply to relations under a loan agreement, unless otherwise provided by the rules of paragraph 2 (“Credit”) and does not follow from the essence of the loan agreement. A loan (credit) agreement is a target agreement in the event that such an agreement provides for the condition that the only permissible direction for spending the loan (credit) issued on its basis is the acquisition in the territory of the Russian Federation of a house, apartment, room or share (s) in them ( Letter of the Federal Tax Service of Russia dated June 26, 2014 N BS-4-11 / 12234 "On the provision of a property tax deduction"). The funds received on the basis of a loan (credit) agreement were spent on the purchase of a house, apartment, room or share (s) in them on the territory of the Russian Federation. However, the mere fact of directing funds received under a non-purpose loan (credit) for the purchase of housing is not enough to provide a property tax deduction in the amount of expenses incurred to pay interest on such a loan (credit);

2) the existence of the right to receive a property tax deduction provided for the acquisition (construction) of housing, the acquisition of land in accordance with paragraphs. 3 p. 1 art. 220 of the Tax Code of the Russian Federation. Paragraph 27 pp. 2 p. 1 art. 220 of the Tax Code of the Russian Federation establishes that the repeated provision of a property tax deduction is not allowed. If the taxpayer does not have the right to re-receive a property tax deduction, income in the form of material benefits from savings on interest for the use of borrowed (credit) funds is subject to personal income tax (Letter of the Ministry of Finance of Russia dated February 27, 2012 N 03-04-05 / 9-223).

We also note that the taxpayer will have the right to receive a property tax deduction in the amount of expenses incurred by him to pay interest if the terms of the loan (credit) agreement provide that his only purpose is to purchase a house, apartment, room or share in the territory of the Russian Federation (shares) in them and the funds received under such an agreement were actually used to purchase a house, apartment, room or share (shares) in them on the territory of the Russian Federation. If the loan (credit) agreement does not provide for the above conditions, then the refusal to provide a property tax deduction, in the opinion of the Federal Tax Service of Russia, will be lawful (Letter of the Federal Tax Service of Russia dated June 26, 2014 N BS-4-11/12234 "On the provision of tax deduction");

3) documentary confirmation of the taxpayer's right to a property tax deduction for personal income tax. The condition for exemption from taxation of income in the form of material benefit is the availability of confirmation of the taxpayer's right to receive a property tax deduction issued by the tax authority only if there is a finished dwelling, and the right of ownership to it (or in the case of acquiring an apartment in a house under construction - an acceptance certificate apartments).

The current form of notification of confirmation of the taxpayer's right to a property tax deduction was approved by Order of the Federal Tax Service of Russia dated December 25, 2009 N MM-7-3 / [email protected] The taxpayer's right to receive property tax deductions from tax agents must be confirmed by the tax authority within a period not exceeding 30 calendar days from the date of submission of the taxpayer's application and documents confirming the right to receive property tax deductions. After an appropriate audit, the tax authority makes a decision to issue a notice confirming the taxpayer's right to a property tax deduction or to send a written notice to the applicant about the refusal to issue a confirmation of the right to a property tax deduction. At the same time, the Tax Code of the Russian Federation does not provide for the obligation of tax authorities to send by mail or to in electronic format appropriate notice to the taxpayer, as well as specifically informing the taxpayer of its readiness. A taxpayer can receive such a notification from the tax authority upon a personal visit and presentation of an identity document (Letter of the Federal Tax Service of Russia for Moscow dated March 3, 2014 N 20-14 / [email protected]).

Income in the form of material benefits received from savings on interest for the use of borrowed (credit) funds paid before the submission of confirmation of the taxpayer's right to receive a property tax deduction is subject to taxation at a rate of 35%. Upon submission of confirmation of the taxpayer's right to receive a property tax deduction, income in the form of material benefit is exempt from taxation, and the previously paid amount of tax on income in the form of material benefit for the use of borrowed (credit) funds is recalculated. tax periods in which the taxpayer paid interest on the loan (credit) received (Letter of the Ministry of Finance of Russia dated September 1, 2010 N 03-04-05 / 6-513).

Material benefit received from the acquisition of securities

According to paragraphs. 3 p. 1 art. 212 of the Tax Code of the Russian Federation, paragraph 4 of Art. 212 of the Tax Code of the Russian Federation, the taxpayer's income in the form of material benefit is, in particular, the material benefit received from the acquisition of securities.

The tax from the specified material benefit is calculated, withheld and transferred to the budget by the tax agent. It follows from the above that the organization is a tax agent when calculating the tax base for transactions with securities in accordance with Art. 214.1 of the Tax Code of the Russian Federation, as part of the cost of acquiring securities, it may take into account the amount of tax calculated in accordance with paragraph 4 of Art. 212 of the Tax Code of the Russian Federation, if this tax was actually paid to the budget on the date the tax agent calculated the tax base for transactions with securities in accordance with Art. 214.1 of the Tax Code of the Russian Federation (Letter of the Ministry of Finance of Russia dated August 21, 2013 N 03-04-06 / 34308).

The procedure for determining the market price of securities, the settlement price of securities, as well as the procedure for determining the maximum limit for market price fluctuations are established in accordance with par. 7 p. 4 art. 212 of the Tax Code of the Russian Federation (as amended by the Federal Law of July 23, 2013 N 251-FZ "On Amendments to Certain Legislative Acts of the Russian Federation in Connection with the Transfer to the Central Bank of the Russian Federation of the Authority to Regulate, Control and Supervise the financial markets”(hereinafter - Law N 251-FZ)), the Central Bank of the Russian Federation in agreement with the Ministry of Finance of the Russian Federation.

According to paragraph 1 of Art. 49 of Law No. 251-FZ, before the Bank of Russia regulations come into force, the adoption of which is within the competence of the Bank of Russia by this Federal Law, the regulatory legal acts Government of the Russian Federation and regulatory legal acts federal bodies executive power of the Russian Federation.

Prior to the adoption by the Bank of Russia of the procedure for determining the market price of securities agreed with the Ministry of Finance of Russia, the Procedure for determining the market price of securities, the settlement price of securities, as well as the maximum limit for fluctuations in the market price of securities for the purposes of Chapter 23 of the Tax Code of the Russian Federation, approved by Order FFMS of Russia dated November 9, 2010 N 10-65/pz-n, in accordance with paragraph 2.1 of which the market price of securities circulating on the organized market is determined as the weighted average price calculated in the prescribed manner by the Russian trade organizer on the securities market ( stock exchange) at the end of each trading day, taking into account the marginal limit of fluctuations in the market price of securities (that is, taking into account the minimum transaction price with the corresponding security as of the date of determining the weighted average price).

New edition Art. 212 Tax Code of the Russian Federation

1. The taxpayer's income received in the form of material benefit is:

material benefits received from savings on interest for the use of borrowed (credit) funds provided for new construction or the acquisition on the territory of the Russian Federation of a residential building, apartment, room or share (shares) in them, land plots provided for individual housing construction, and land plots on which the purchased residential buildings are located, or shares (shares) in them;

2) material benefit received from the acquisition of goods (works, services) in accordance with a civil law contract from individuals, organizations and individual entrepreneurs who are interdependent in relation to the taxpayer;

3) material benefit received from the acquisition of securities, derivative financial instruments, with the exception of the securities specified in this Code, in the event of their acquisition during the initial placement by the issuer and securities acquired from a controlled foreign company by a taxpayer recognized as a controlling person of such a foreign company , as well as a Russian related person of such a controlling person, provided that the income of such a controlled foreign company from the sale of these securities and expenses in the form of the purchase price of securities are excluded from the profit (loss) of this foreign company on the basis of paragraph 10 of Article 309.1 of this Code.

2. When a taxpayer receives income in the form of material benefit specified in subparagraph 1 of paragraph 1 of this article, the tax base is determined as:

The market value of securities circulating and not circulating on the organized securities market is determined as of the date of the transaction.

The procedure for determining the market price of securities, the settlement price of securities, as well as the procedure for determining the maximum limit for market price fluctuations are established for the purposes of this Chapter by the Central Bank of the Russian Federation in agreement with the Ministry of Finance of the Russian Federation, subject to the provisions of this paragraph.

The market value of derivative financial instruments circulating on the organized market is determined in accordance with paragraph 1 of Article 305 of this Code.

The market value of derivative financial instruments not circulating on an organized market is determined in accordance with paragraph 2 of Article 305 of this Code.

Commentary on Article 212 of the Tax Code of the Russian Federation

The Tax Code, in order to calculate personal income tax, defines the following cases when a taxpayer receives a material benefit.

1. Material benefit from savings on interest for the taxpayer's use of borrowed (credit) funds received from organizations or individual entrepreneurs. An exception is the material benefit received from credit card transactions during the interest-free period specified in the credit card agreement.

3. Material benefit received from the acquisition of securities.

Let's consider each of these situations in detail.

Financial benefit from interest savings

for the use of borrowed (credit) funds

Material benefit - the amount of savings on interest when taxpayers receive borrowed (credit) funds from organizations or individual entrepreneurs on preferential terms - is determined as follows:

For foreign currency loans - as an excess of the amount of interest for the use of borrowed funds, expressed in foreign currency, calculated on the basis of 9% per annum, over the amount of interest calculated on the basis of the terms of the agreement.

When determining the amount of material benefit, the refinancing rate of the Central Bank of the Russian Federation, established on the date of receipt of borrowed (credit) funds, is applied, regardless of whether it changed during the period of use of these funds.

Since December 26, 2005, the refinancing rate of the Central Bank of the Russian Federation has been 12 percent per annum.

The tax base for obtaining material benefits in the form of savings on interest is determined on the day interest is paid on the received borrowed (credit) funds (but at least once a calendar year).

Material benefit is determined only if the borrowed funds are received under a loan or credit agreement.

Loan - the transfer of ownership of money or other things, defined by generic characteristics, by the lender to the borrower with the condition that the borrower repays the loan amount or an equal number of other things received by him of the same kind and quality on the basis of an agreement concluded between the participants in the transaction (Article 807 of the Civil Code of the Russian Federation).

A loan agreement between citizens must be concluded in writing if its amount exceeds at least 10 times the minimum wage, and if the lender is a legal entity - regardless of the amount (clause 1, article 808 of the Civil Code of the Russian Federation). In other cases, the loan agreement may be concluded orally. The loan agreement is considered concluded from the moment of transfer of money or other things.

Credit - the provision by a bank or other credit organization (creditor) of funds (credit) to the borrower in the amount and on the terms stipulated by the agreement, with the borrower returning the amount of money received and paying interest on the loan (Article 819 of the Civil Code of the Russian Federation).

The material benefit received from savings on interest for the use of borrowed (credit) funds by the taxpayer is taxed at a rate of 35 percent (clause 2, article 224 of the Tax Code of the Russian Federation).

An exception to this rule is "income in the form of material benefits received from savings on interest for the use by taxpayers of targeted loans (credits) received from credit and other Russian organizations and actually spent by them on new construction or the acquisition of a residential building, apartment on the territory of the Russian Federation or shares (shares) in them, on the basis of documents confirming the intended use of such funds.

In this case, the material benefit received by a taxpayer - a resident of the Russian Federation is subject to personal income tax at a rate of 13 percent.

When determining the amount of material benefit in the form of savings on interest for the use of borrowed (credit) funds, subject to taxation at a rate of 35 percent, tax deductions are not provided (clause 4, article 210 of the Tax Code of the Russian Federation).

A tax agent - an organization or an individual entrepreneur who has provided an individual with a loan (credit) on preferential terms - must calculate the tax on material gain and transfer this amount to the budget.

Please note: the duties of a tax agent are assigned to the organization and for their execution it is not required to obtain powers of attorney from individuals to withhold and transfer tax.

If the employee does not receive other income in the organization or the period during which the tax can be withheld exceeds 12 months, the tax agent must report this to his tax office (in the form 2-NDFL) and indicate the amount of tax debt of the individual. This must be done no later than one month after the employee receives income.

Material benefit is not determined in the following cases:

If borrowed funds are received by the taxpayer from individuals who are not individual entrepreneurs;

When a taxpayer concludes a commercial loan agreement, as defined in Art. 823 of the Civil Code of the Russian Federation, or contracts for the purchase of goods on credit or by installments;

In case of untimely return by the employee of the organization of previously issued accountable amounts.

We justify the last assertion.

Employees who have received cash on account are required, no later than three working days after the expiration of the period for which they were issued, to submit a report on the amounts spent to the accounting department of the organization and make a final settlement on them. This procedure is established by clause 11 of the Procedure for conducting cash transactions in the Russian Federation, approved by the Decision of the Board of Directors of the Central Bank of the Russian Federation of September 22, 1993 N 40.

In addition, by order of the head of the organization, any period for which money is issued for a report can be established, for example, 60 or 90 days. This will avoid not only the violation of cash discipline, but also the claims of the tax authorities. However, in any case, there is no material benefit for the employee.

material benefit,

received from the purchase of goods (works, services)

on preferential terms

A material benefit arises if a person buys goods (works, services) at preferential prices from an organization (individual entrepreneur), in relation to which he is an interdependent person.

According to paragraph 1 of Art. 20 of the Tax Code of the Russian Federation, organizations or individuals are considered interdependent if the relationship between them affects their economic activity. This situation is possible when:

One organization directly or indirectly (for example, through a subsidiary) owns more than 20 percent of the authorized capital of another organization;

One individual is subordinate to another according to his official position (for example, the director of the enterprise and one of the employees, the head of the department and his subordinate);

Individuals are spouses or relatives, adoptive parent and adopted child, guardian and ward.

Unfortunately, the existing arbitration practice suggests that judges in many cases recognize the organization and its employees as interdependent persons. For example, the Information Letter of the Supreme Arbitration Court of the Russian Federation dated March 17, 2003 N 71 states that, taking into account specific circumstances, a legal entity and its director may be recognized as interdependent.

The situation is even worse if the goods are sold by an individual entrepreneur to his employee. Then the material benefit will need to be calculated. Indeed, in this case, the employee is subordinate to the entrepreneur, and therefore, according to Art. 20 of the Tax Code of the Russian Federation, they are considered interdependent persons.

Therefore, in order to minimize possible fiscal risks, it is necessary to avoid a situation where an organization (individual entrepreneur) sells goods to its employees at preferential prices.

The material benefit received from the purchase of securities is the difference between the amount that the buyer - an individual paid for them, and the market price of the securities, taking into account the maximum fluctuation limit for this price. So it is written in paragraph 4 of Art. 212 of the Tax Code of the Russian Federation. Tax on such material gain can be paid by both the buyer of securities and his authorized representative - the organization that sold these securities. In this case, the market price of the paper must be taken on the day when the transaction was concluded.

In this situation, tax on the amount of material benefit received by the taxpayer is calculated at a rate of 13 percent.

Another commentary on Art. 212 of the Tax Code of the Russian Federation

As explained by the Constitutional Court of the Russian Federation in the Determination of 05.07.2002 N 203-O, the provisions of subparagraph 1 of paragraph 2 of Article 212 and paragraph six of paragraph 2 of Article 224 of the Tax Code, and prescribing when calculating tax on material benefits from savings on interest for the taxpayer's use of borrowed (credit) funds received from organizations or individual entrepreneurs based on the refinancing rate established by the Central Bank of the Russian Federation as of the date of receipt of such funds, are applied in cases where these borrowed (credit) funds were received after January 1, 2001.

Decree of the Federal Securities Commission of Russia No. 03-52/ps dated December 24, 2003 approved the procedure for calculating the market price of issue-grade securities and investment units of mutual investment funds admitted to circulation through trade organizers and establishing the maximum limit for market price fluctuations.

The tax is levied on the negative difference between the amount of interest calculated on the basis of the terms of the agreement and the amount of interest calculated on the basis of:

2/3 of the refinancing rate as of the date of interest payment, - for credits (loans) in rubles;

9% per annum - for credits (loans) in foreign currency.

The exception is the material benefit received:

During the period of interest-free use of the loan established by the agreement in transactions with bank cards;

For borrowed (credit) funds raised for the purchase or new construction of a residential building (apartment, room) in Russia, provided that .

From 01.01.2010, due to the entry into force of Federal Law No. 281-FZ of 25.11.2009, when determining the tax base for personal income tax, income in the form of material benefits from the acquisition of securities, financial instruments of futures transactions is taken into account.

In accordance with Article 212. Tax Code of the Russian Federation (taxation of individuals). Personal income tax percentage levied on mat benefits

Commentary on Art. 212 Tax Code of the Russian Federation

Judicial practice under Article 212 of the Tax Code of the Russian Federation

Article 212 of the Tax Code of the Russian Federation. Features of determining the tax base when receiving income in the form of material benefits (current version)

Commentary on Art. 212 Tax Code of the Russian Federation

Commentary on Art. 212 Tax Code of the Russian Federation

Commentary on Article 212 of the Tax Code of the Russian Federation

Another commentary on Art. 212 of the Tax Code of the Russian Federation

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