in practice, it is quite common, since many companies provide this type of assistance to their employees. In the article we will discuss what consequences can be expected from such cooperation in 2016, and find out how such a loan is properly processed.

Issuing a loan to an employee of an organization (employee of an enterprise)

Interest-free loans between legal entities and individuals are carried out in accordance with the general provisions of the Civil Code on the loan agreement. More specifically, their issuance is regulated by Ch. 42 of the Civil Code of the Russian Federation. According to its provisions, a legal entity has the right to enter into loan agreements with an individual, including an employee of an enterprise. At the same time, when talking about an interest-free loan, you need to remember that if an agreement is concluded between an individual and a legal entity, it must directly indicate that the loan issued is just that.

Issue interest-free loan to employee carried out under an agreement, the form of which is stipulated by the general provisions enshrined in Art. 808 of the Civil Code of the Russian Federation. Confirmation of the conclusion of the transaction is the transfer of funds (things) under a written agreement loan by an employee of the organization. A receipt from the borrower for receiving a cash loan (things) can serve as confirmation of the fulfillment of contractual terms.

The loan must be repaid within the period established in the receipt/agreement and on the terms stipulated therein. If the borrower does not repay it on time, the lender has the right to charge interest for the use of someone else’s money, and also to demand from the borrower early repayment of the full amount of the debt (if the agreement/receipt provided for the possibility of repaying the loan in installments). Upon extradition, a legal entity has the right to demand security for the fulfillment of the obligation.

Methods for ensuring the fulfillment of obligations are provided for in Art. 329 Civil Code of the Russian Federation:

• pledge;
• surety;
• retention of an item belonging to the borrower;
• independent guarantee, etc.

If the security is lost or its condition deteriorates for reasons beyond the control of the lender, the latter has the right to demand early repayment of the borrowed amount.

Don't know your rights?

Interest-free loan from a legal entity to an employee and tax consequences in 2016

On the one side, issuance of a loan to an individual from a legal entity in accordance with tax legislation, as a rule, does not affect issues related to taxation of legal entities. faces. The fact is that funds transferred under an interest-free loan agreement:

• are not reflected in the income and expenses of the enterprise;
• are not subject to value added tax;
• are not recognized as an expense when the lender applies the simplified taxation system.

On the other side, tax consequences of an interest-free loan to an employee enterprises arise when calculating personal income tax. The fact is that, according to tax legislation, the employing enterprise is a tax agent who is obliged to withhold and transfer to the budget tax on the income of its employees. Issuance interest-free loan to employee has certain nuances. Thus, the Tax Code (Article 212) considers savings on interest as a material benefit subject to personal income tax at a rate of 35% (Article 224) if the borrower is a tax resident of the Russian Federation, and 30% if he is not.

At the same time, the Tax Code of the Russian Federation also provides for exceptions. For example, from paying personal income tax. persons are exempt from material benefits from savings on interest for the use of borrowed funds issued for the purchase of housing or land plots for its construction on the territory of the Russian Federation. In such cases, there is no question of material benefit if the borrower has the right to provide him with a tax deduction for expenses associated with the purchase of housing. The size of the deduction does not matter.

About documenting a loan, a sample loan agreement with an employee

For registration issuing a loan to an employee of an organization You can use a standard agreement, but in some cases it will be much easier to draw up a receipt that is familiar to everyone. The main thing is not to forget that it must reflect all the essential terms of the loan agreement.

In accordance with the Civil Code, these include:

• the subject of the contract (i.e., the amount of money or thing that is transferred to the borrower);
• loan repayment conditions (procedure, etc.).

In addition, the receipt must clearly identify the parties to the agreement (lender and borrower) and contain other conditions that the parties have determined for themselves (for example, ensuring the fulfillment of an obligation, the possibility of early termination of the agreement, etc.).

If you prefer to conclude a contract, you can download a standard one on our website.

An interest-free loan between legal entities is not a rare phenomenon. In our article we will talk about the tax and accounting nuances of this type of financing, and also talk about the possible risks of such transactions for related parties and independent companies.

Can an interest-free loan be issued to another organization?

Yes, this possibility is provided for by the Civil Code. According to Art. 808 of the Civil Code of the Russian Federation, a loan agreement between legal entities must be concluded on paper. It is also necessary to state that there is no interest on a cash loan, since otherwise, by default, the loan fee should be calculated based on the refinancing rate on the date of repayment of the loan or part thereof (clause 1 of Article 809 of the Civil Code of the Russian Federation). If the subject of the agreement is things, then such an agreement will be considered interest-free if there is no mention of this condition in it.

When completing such transactions, the accountant is faced with the question of the tax consequences of an interest-free loan between legal entities. This is discussed in the next section, where we only talk about agreements between companies independent of each other, those that do not fall under the terms of Art. 105.1 Tax Code of the Russian Federation.

Tax risks of interest-free loans between independent organizations

If the lender has received loans or borrowings on which he pays interest, then the tax authorities may consider it unlawful to accept such interest as expenses, since the funds received from the loan were used to issue an interest-free loan. It is advisable to challenge such decisions of tax authorities in court, proving that the loan was used for other purposes, and the interest-free loan was issued from one’s own funds. Examples: the resolution of the Federal Antimonopoly Service of the North-Western District dated July 1, 2015 No. F07-3688/15 is not in favor of the taxpayer, a positive decision in the resolution of the Federal Antimonopoly Service of the Ural District dated January 14, 2009 No. F09-10027/08-S3.

Can additional income be accrued to the lender by calculating it from the market rate on loans? For independent entities, the Tax Code of the Russian Federation does not contain rules obliging the accrual of abstract income on interest-free loans between legal entities, so the loan provider should not have any problems (letter of the Ministry of Finance of the Russian Federation dated August 11, 2011 No. 03-03-06/2/120).

Do tax authorities have the right to accrue additional income from a borrower-legal entity by analogy with the material benefit from a loan without interest? In the Tax Code of the Russian Federation, for income tax purposes, there is no concept of material benefit from an interest-free loan between legal entities. The Ministry of Finance also comments on the illegality of such additional charges, for example, in letter dated March 23, 2017 No. 03-03-RZ/16846. The tax authorities do not argue with this approach (letter from the Federal Tax Service of Russia for Moscow dated November 22, 2011 No. 16-15/112957@). But an interest-free loan between a legal entity and an individual, including individual entrepreneurs, has its own tax nuances within the framework of calculating personal income tax on material benefits.

Interest-free loan between a legal entity and an individual

A transaction where an interest-free loan is given by an independent individual to an organization will not entail an increase in the tax burden on any of the parties to the transaction. Interest-free loans between an individual and a legal entity, including if the loan is provided by an individual entrepreneur, do not increase the taxable income of the borrower (see explanatory letters from government agencies from the previous section). For individuals, the Tax Code of the Russian Federation also does not contain any grounds for additional accrual of lost income.

In addition, the amount of the loan issued or repaid cannot be recognized as income for any party in accordance with subparagraph. 10 p. 1 art. 251 Tax Code of the Russian Federation. This is confirmed by court decisions, for example, resolution of the Federal Antimonopoly Service of the Ural District dated January 14, 2009 No. F09-10027/08-S3. The same applies to expenses: the amount of a loan issued or repaid is not an expense (Clause 12, Article 270 of the Tax Code of the Russian Federation).

Tax consequences of interest-free loans between related parties

If a transaction with an interest-free loan is carried out between organizations that are interdependent, then additional tax consequences arise in connection with Section V of the Tax Code of the Russian Federation.

Look for interdependence criteria.

If the parties to a transaction are interdependent, the next step is to determine whether the transaction is controlled.

If the transaction does not fall under the criteria of a controlled one, and the parties to the transaction are Russian organizations or citizens, then they do not bear additional tax risks. If one of the interdependent parties is a foreign entity, then such a transaction automatically falls under the controlled ones (Article 105.14 of the Tax Code of the Russian Federation, letter of the Ministry of Finance of the Russian Federation dated September 4, 2015 No. 03-01-11/51070), and for this option — next section of the article.

ATTENTION! As of 01/01/2017, a new tax rule is in effect. If a transaction is made withan interest-free loan between interdependent legal entities that are registered on the territory of the Russian Federation, or with the participation of citizens of the Russian Federation, then it is not recognized as controlled (subclause 7, clause 4, article 105.14 of the Tax Code of the Russian Federation).

This means that the lender is now safe from additional income in the form of interest at the market rate. In the letter of the Ministry of Finance dated 04/21/2017 No. 03-12-11/1/24048 it is commented that the innovation also applies to contracts concluded earlier 01/01/2017, the main thing is — that income and expenses on it are recognized after 01/01/2017.

Tax consequences of interest-free loans in a controlled transaction

If the issued interest-free loan relates to a controlled transaction, for example, one of the parties is not a resident of the Russian Federation, then Art. 269 ​​of the Tax Code of the Russian Federation. When calculating income tax, the lender must take into account income in the form of unearned interest. To calculate the amount of interest, it is necessary to take into account the requirements of clauses 1.1, 1.2 of Art. 269 ​​of the Tax Code of the Russian Federation. The actual interest rate (FP) on the loan must be compared with the established interval (see table below).

The lender can recognize actual income on the loan if FP>MIN. The borrower may recognize actual loan expense if the FI<МАКС. Для беспроцентного займа ФП равен 0, поэтому налогооблагаемый доход считаем по минимальной ставке интервала (МИН), расход по полученному беспроцентному займу так и будет равен 0.

Accounting entries for interest-free loans

Postings for an interest-free loan depend on the other party to the transaction. An employee received an interest-free loan - accounting entries are made using account 73. If this is a third-party individual, then account 76. If a transaction on an interest-free loan is made between legal entities, then account 76 is also used. In entries for an interest-free loan issued to another organization, account 58 should not be used maybe, since a loan with a rate of 0 is not a financial investment. The table below lists possible accounting options for interest-free loan transactions between legal entities, as well as with individuals.

Results

An interest-free loan between legal entities or between a citizen and an organization is completely legal. If the parties to such an agreement are independent persons or any Russian persons, then they will not bear an additional tax burden. Tax risks in such a transaction arise if it is recognized as controlled. Then the lender must accrue additional taxable income based on the requirements of the Tax Code of the Russian Federation.

If an individual issues microloans

Andrey Paranich, director of SRO NP "MiR", answers journalist Yulia Siebert's questions about the nuances of microfinance activities, in particular, about the situation when an individual is engaged in issuing loans and making a profit from this process.

There are projects online where individuals provide loans to each other. As far as I understand, some do this on an ongoing basis. Someone only once offered their services as a lender. Should such individuals register an MFO or are their activities not subject to the requirements of the microfinance law?

Indeed, today there are several online platforms that allow individuals to lend to each other. Indeed, at first glance, such a scheme exempts all participants in the process from liability. Lending by one individual to another is not subject to the law on consumer lending: a professional lender can be a company or individual entrepreneur, but not an individual. However, according to the norms of Russian law, systematic activity for the purpose of making a profit is a business activity that requires registration. Consequently, a citizen who regularly lends to other citizens violates the law on entrepreneurial activity, for which he can be fined.

Thus, lending money to friends, acquaintances or colleagues is not prohibited, but the systematic activity of issuing loans is an entrepreneurial activity. Consequently, having put loans on stream, a citizen is faced with the need to register as an entrepreneur, which in turn makes him a professional lender, obliged to comply with all provisions of the law “On Consumer Lending”.

It is worth mentioning that p2p lending platforms often choose a different form of work. Formally, the loan is issued by the microfinance organization, which then assigns the debt to the individual under an assignment agreement. Thus, the individual becomes the buyer of the loan rather than the lender. This form of work also does not allow compliance with all the requirements of the law “On Consumer Credit”, in particular the provision on the mandatory transfer of data to the BKI. Let’s assume that such an MFO issued a loan to a citizen and, in accordance with the law, transferred information about the loan to the BKI. Then the MFO ceded the loan to a real lender - an individual, who already received the loan body and interest from the borrower. However, an individual cannot transfer information about loan repayment to BKI - today there is no practice in the market of signing relevant agreements between BKI and individuals. Since information about the return is not transmitted to the BKI, this debt after some time becomes overdue. Perhaps over time this issue will be resolved, but at the moment a borrower who receives a loan under such a scheme risks ruining his credit history.

Are there any penalties for those who issue loans “under the table”? Which ones, if so? And can an individual issuing loans be fined? Or only individual entrepreneurs and LLCs? And who can initiate such a fine?

Penalties for issuing loans provided for by the law on consumer credit apply only to legal entities and individual entrepreneurs. They amount to 500 thousand rubles.

An individual who lends money may be fined for conducting illegal business activities. Responsibility for illegal business is provided for by the Code of Administrative Offenses and the Tax Code.

If we talk about creating an MFO, how expensive is it, in your opinion, who can help in this matter? Do you advise aspiring microfinance professionals? Where can I go for advice on creating an MFO and complying with the law? How much does a consultation cost?

The process of registering an MFO itself is not very expensive: to do this, you need to register a company (for example, an LLC) and submit documents to the Bank of Russia to include the company in the Register.

But in the future, MFO owners need to ensure compliance with various laws: “On combating the legalization (laundering) of proceeds from crime and the financing of terrorism”, “On personal data”, “On microfinance activities”, “On consumer credit”... To comply with the requirements laws and to maintain the operation of the company, the company must have employees who perform the functions required by the provisions of the laws. Thus, the MFO will require regular staff costs. Accordingly, it is unprofitable to organize MFOs in order to issue three to five loans per year.

We, as SROs, do not provide advice to entrepreneurs and individuals who have not yet opened an MFO. Our partner, the Russian Microfinance Center, is currently providing advice on this issue and assistance in creating MFOs.

In practice, situations often arise when an individual urgently requires additional financial resources to carry out current activities. Obtaining a loan from a banking organization is not always possible, for example, due to the lack of collateral. In addition, cooperation with a bank may not be entirely profitable due to high interest rates.

In this case, you can receive funds in the form of a microloan from a legal entity. The procedure for transferring finances is carried out on the basis.

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

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

It's fast and FOR FREE!

According to this document, one party, acting as a creditor, transfers funds or transfers other things to the other party - its client (borrower). The latter is obliged to return to the lender the borrowed amount of money or other similar things of the same quality.

The loan agreement is considered valid from the moment of transfer of funds or things. The procedure itself has several nuances related to registration, taxation, etc. The main provisions defining the procedure for receiving money on loan are regulated by civil law.

Important clarifications

A loan to an individual from a legal entity can be transferred not only in monetary terms, but also in real terms. In the latter case, some property is transferred. The list of legal entities that can act as creditors is not limited at the legislative level.

All terms of the agreement between the parties are determined by the loan agreement. With the same document, one of the parties can operate in court if the other has violated the contractual terms.

Main conditions and requirements

Financial relations between the parties to the transaction are regulated on the basis of the conditions set by the creditor:

Not every individual can take out a loan. Typically, lenders want to see solvent individuals with a regular income among potential borrowers.

In addition, lenders usually put forward additional requirements for their clients:

• positive credit history;
• high credit rating;
• citizenship of the Russian Federation and residence on the territory of the Russian Federation (for lending on the territory of Russia);
• official employment and corresponding declared level of income.

Existing restrictions

At the moment, the legislation does not provide for restrictions that would apply to this procedure.

A legal entity may lend funds to:

• to their employees (individuals);
• one of the founders;
• to third parties.

General legal aspects

Microcredit can be interest-free or subject to a certain interest rate. If a legal entity transfers funds to the borrower for use for a certain period without interest, then this condition must be reflected in the loan agreement in accordance with Article 809 of the Civil Code of the Russian Federation. The loan may be provided that the money is transferred for use upon registration of the pledge.

If the agreement does not specify a condition regarding the payment of interest, then the interest rate is determined by the current refinancing rate on the day the debt is paid by the borrower (Article 809 of the Civil Code of the Russian Federation).

The order in which the borrower must pay interest is also established in the loan agreement. If such a provision is not provided for in the document, then interest must be paid monthly throughout the entire loan period.

An interest-free microloan can be returned to the lender ahead of schedule, unless otherwise specified in the loan agreement. A loan subject to interest can be repaid early only with the consent of a legal entity (creditor), in accordance with paragraph 2 of Article 810 of the Civil Code of the Russian Federation.

For violation of contractual terms by one of the parties to the agreement, penalties may be applied to it. For example, it is possible for the borrower to establish additional interest on top of what he is already paying.

A loan to an individual from a legal entity may be targeted or non-targeted. In the first case, it is provided for a specific purpose, for example, to purchase equipment. At the same time, the lender has the right to control the intended use of the borrowed amount, and the borrower should not interfere with it. In the second case, the borrower has the right to dispose of the received loan amount at his own discretion.

How can an individual get a loan from a legal entity?

How to apply for a loan, approximate algorithm:

1. An individual’s choice of a legal entity – a lender offering the most favorable terms of cooperation. Before contacting a business entity, it is recommended to weigh all the parameters of such credit relationships.
2. Submitting a loan application. Typically, a request for a microloan appears in the form of a questionnaire indicating personal and contact information.
3. Waiting for a positive response from the lender. Upon receipt, the collection of the required documentation for concluding the contract begins.
4. Signing a loan agreement.
5. The act of transferring financial assets into debt.

After receiving a loan, the client (individual) begins repaying the debt in accordance with the repayment schedule. The schedule is usually presented in tabular form, indicating the dates and amounts of payments. By agreement between the parties, it is possible to pay off the debt in one payment or quarterly. These conditions must be specified in the contract.

For late payments, the loan agreement usually provides for a clause with the payment of penalties in the form of a fine. Some legal entities allow the sale of their clients' debts to collectors.

What may be included in the documentation required by the lender to conclude a loan agreement:

Samples of contracts and papers

It follows from Article 808 of the Civil Code of the Russian Federation that a loan agreement must be formalized in writing if its amount exceeds 10 times the minimum wage. And when the creditor is a legal entity, the document must be drawn up in writing, regardless of the amount.

The document must be titled, it must contain the date of the transaction and the place (city) where it is concluded. It is also necessary to enter information about the lender and borrower with their full names.

The document contains several sections:

The agreement is drawn up in 2 copies, which are taken by both parties to the agreement. A well-drafted loan agreement guarantees the strength of the deal concluded between the parties. Therefore, many people turn to lawyers for help in documenting the transaction.

Sample interest-free target loan agreement:

Other formalities

The contractual relationship between the lender and the borrower has a number of nuances, mainly related to VAT and the reflection of the transaction in. They must be clarified by both parties before signing the loan agreement.

Taxation issues and accounting nuances mainly relate to situations where an enterprise receives a loan from a legal entity.

Taxation

Receiving a loan does not act as income for the borrower, and therefore is not included in the tax base for income tax. Debt repayment, similarly, is not recognized as an expense; taxation does not take it into account. Therefore, borrowed funds are not subject to VAT.

With accumulated interest under an interest-bearing loan agreement, the situation is somewhat different. Interest on such a loan is recognized as an expense provided that its amount does not differ significantly from the average amount of interest charged on debt obligations issued in the same period (quarter).

A significant deviation is a deviation of more than 20% towards a decrease or increase in the average amount of interest that was accrued on obligations issued on comparable terms.

In the absence of loans received by the borrower on similar terms and in the same time period, the maximum amount of interest recognized as an expense is considered to be increased by 1.1 times the refinancing rate of the Central Bank of the Russian Federation. This applies to debt obligations in rubles. For debts in foreign currency, the maximum value is assumed to be 15%.

As for an interest-free loan, the law does not provide a specific distinction regarding how the procedure for issuing a loan should be reflected in tax accounting. This can be considered both monetary assistance and investment.

Investments are not recognized as the provision of services or the sale of goods. And if financial assistance was provided, then this is considered to be the receipt of non-operating income by the company. It is taken into account in the profit tax base. Income is assessed at the refinancing rate of the Central Bank of the Russian Federation, which was in effect at the time of receiving the microloan.

When concluding a loan agreement, the company must take into account possible disagreements with the tax authorities.

In 2019, income in the form of interest and dividends is included in the tax base for personal income tax. Since the borrower is considered a source of income for the lender, he must withhold personal income tax from him when paying interest on the loan. In this case, the borrower also acts as a tax agent who is responsible for withholding tax and transferring it to the budget.

This kind of income is not subject to UST (unified social tax).

Accounting procedure

The principal amount of the loan obligation must be reflected by the borrowing company as accounts payable in accordance with the contractual terms.

The following accounting procedure applies for received loans:

• Repayment of the loan obligation by the borrower is considered a reduction in accounts payable. Settlements for short-term microloans (received for a period of less than a year) are displayed on account 66. For operations related to settlements on longer-term loans, account 67 is provided.
• It does not matter who provided the microloan to the organization - a legal entity or an individual.
• Posting at the time of receipt of funds: debit 50 or 51, credit 66 or 67. When repaying debt: debit 66 or 67, credit 50 or 51.

For issued loans, the following accounting procedure is used:

• Amounts of loans provided to individuals who are not employees of a legal entity are reflected in account 76.
• The issuance of finance to an individual on the basis of a loan agreement is reflected by the following entries: debit 76, credit 50 or 51. Repayment of a microloan or part thereof is reflected as: debit 50 or 51, credit 76.

Issue without interest

If a legal entity provides a loan to an individual free of charge, this must be specified in the contractual terms. The issuance of such loans is carried out on the basis of Chapter 42 of the Civil Code of the Russian Federation. To confirm that the borrower has fulfilled the terms of the agreement, a receipt on his part confirming that he has received a sum of money or property can also be used.

When providing an interest-free loan, a legal entity has the right to demand security for the fulfillment of obligations from the borrower. An independent guarantee, surety or pledge may be used as security. The subject of collateral can be, for example, movable or immovable property.

If the security is lost for reasons beyond the control of the lender, he has the right to demand from the borrower an early repayment of the loan amount.

As already mentioned, when calculating personal income tax on such an operation, tax consequences arise.

Notes on money transactions

Notarization of the procedure is not necessary. However, the parties have the right to have the facts certified by a notary. A notarial transaction can guarantee the legality and legality of the transaction. There is one exception when seeking the help of a notary is mandatory - if real estate is provided as collateral.

Repayment of the borrowed amount is considered made from the moment of the actual transfer of funds or crediting of the amount of money to the creditor’s details.

Advantages and disadvantages

Attention!

• Due to frequent changes in legislation, information sometimes becomes outdated faster than we can update it on the website.
• All cases are very individual and depend on many factors. Basic information does not guarantee a solution to your specific problems.

If a loan is issued from an individual to an organization (LLC using the simplified tax system), is it possible not to issue interest on the loan, but only in the agreement to issue an interest-free loan with repayment terms (initially this is a hired employee, then the employee will be the founder, the loan amount is not related to the contribution in the founding capital)? What are the tax consequences of providing an interest-free loan?

Having considered the issue, we came to the following conclusion:

In the situation under consideration, the operation of providing an interest-free loan will not lead to an increase in the tax obligations of the parties to the transaction.

Rationale for the conclusion:

simplified tax system

Taxpayers using the simplified tax system determine income in accordance with Art. 346.15 Tax Code of the Russian Federation.

According to paragraph 1 of Art. 346.15 of the Tax Code of the Russian Federation, when determining the object of taxation for the tax paid in connection with the application of the simplified tax system (hereinafter referred to as the Tax), income determined in the manner established by clauses is taken into account. 1 and 2 tbsp. 248 Tax Code of the Russian Federation. In this case, organizations do not take into account the income specified in Art. 251 of the Tax Code of the Russian Federation, as well as income subject to corporate income tax at the tax rates provided for in paragraphs. 1.6, 3 and 4 tbsp. 284 of the Tax Code of the Russian Federation, in the manner established by Chapter 25 of the Tax Code of the Russian Federation (subparagraphs 1, 2, clause 1.1 of Article 346.15 of the Tax Code of the Russian Federation).

Yes, pp. 10 p. 1 art. 251 of the Tax Code of the Russian Federation exempts from taxation income in the form of funds or other property received under credit or loan agreements (other similar funds or other property, regardless of the form of registration of borrowings, including securities under debt obligations).

Thus, amounts received by an organization under a loan agreement, including interest-free ones, are not taken into account as income when forming the tax base for the Tax. The status of the creditor (employee, founder) does not matter in this case (see also letter of the Ministry of Finance of Russia dated June 29, 2011 N 03-11-11/104).

In addition, due to the gratuitous use of borrowed funds, the organization in this case will also not generate taxable income. Let me explain.

In accordance with the Tax Code of the Russian Federation, income is recognized as economic benefit in cash or in kind, taken into account if it is possible to evaluate it and to the extent that such benefit can be assessed, and determined in accordance with Chapters 23 and 25 of the Tax Code of the Russian Federation (clause 1 of Art. 41 of the Tax Code of the Russian Federation).

As follows from paragraph 2 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 22, 2005 N 98, by virtue of Art. 41 of the Tax Code of the Russian Federation, in order to recognize economic benefits as income taken into account for taxation, it is not enough to establish the potential possibility of its assessment. The procedure for determining and assessing benefits must be established by the relevant chapters of the Tax Code of the Russian Federation regulating the taxation of certain types of income, which is the implementation of the general conditions for establishing taxes (see also Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated August 3, 2004 N 3009/04).

The norms of the Tax Code of the Russian Federation do not oblige taxpayers using the simplified tax system to recognize income in the form of material benefits received as a result of the gratuitous use of borrowed funds, nor do they establish a procedure for assessing income in such cases (see, for example, letter of the Ministry of Finance of Russia dated 02/09/2015 N 03-03-06/1/5149).

Thus, we believe that the organization in the situation under consideration does not have an obligation to recognize income in tax accounting due to the gratuitous use of borrowed funds.

A similar conclusion is presented in the letter of the Ministry of Finance of Russia dated July 24, 2013 N 03-11-06/2/29384: the amount of material benefit under interest-free loan agreements by taxpayers using the simplified tax system is not determined and, accordingly, is not taken into account when determining the object of taxation for the Tax (see also letters of the Ministry of Finance of Russia dated October 3, 2008 N 03-11-05/231, Federal Tax Service of Russia for Moscow dated April 15, 2009 N 16-15/036216).

Personal income tax

In accordance with Art. 209 of the Tax Code of the Russian Federation, the object of taxation for personal income tax is income received by taxpayers:

from sources in the Russian Federation and (or) from sources outside the Russian Federation - for individuals who are tax residents of the Russian Federation;

from sources in the Russian Federation - for individuals who are not tax residents of the Russian Federation.

In connection with the transfer of funds under an interest-free loan agreement, as well as in connection with their return (letter of the Federal Tax Service of Russia for Moscow dated September 30, 2009 N 20-14/3/101546), (employee, founder) does not receive economic benefits within the meaning of paragraph 1 of Art. 41 of the Tax Code of the Russian Federation, accordingly, he does not have income subject to personal income tax.

Economic benefit (income), subject to personal income tax, arises from the lender - an individual in the event that the borrower returns an amount of money exceeding the loan amount received by him (see, for example, letters of the Ministry of Finance of Russia dated April 29, 2016 N 03-04-05/25264, dated 02/15/2016 N 03-04-05/8113).

In conclusion, we note that the letter of the Ministry of Finance of Russia dated September 29, 2016 N 03-04-05/56656 explains that if the lender is not a person whose income is subject to personal income tax in the manner prescribed by Art. 227 of the Tax Code of the Russian Federation, that is, an individual entrepreneur or a person engaged in private practice in accordance with the procedure established by current legislation, when taxing his income, the provisions of the Tax Code of the Russian Federation relating to interdependent persons are not taken into account.

For your information:

By virtue of paragraphs. 7 paragraph 4 art. 105.14 of the Tax Code of the Russian Federation, which entered into force on January 1, 2017, transactions for the provision of interest-free loans between related parties, the place of registration or place of residence of all parties and beneficiaries in which the Russian Federation is located, are not recognized as controlled. This, in particular, means that the participants in these transactions, starting from the current calendar year, do not have the obligation to notify the tax authorities about their completion, provided for in paragraph 1 of Art. 105.16 of the Tax Code of the Russian Federation (see information from the Federal Tax Service of Russia dated December 29, 2016 “The list of transactions not recognized as controlled has been expanded since January 1”).

Encyclopedia of solutions. Accounting for the borrower's receipt of borrowed funds;

Encyclopedia of solutions. Accounting when receiving cash loans.

Prepared answer:
Expert of the Legal Consulting Service GARANT
, member of the Russian Union of Auditors Fedorova Lilia

Response quality control:
Reviewer of the Legal Consulting Service GARANT
Candidate of Economic Sciences Ignatiev Dmitry

The material was prepared on the basis of individual written consultation provided as part of the Legal Consulting service.