Tax consequences of an interest-free loan between legal entities. Receiving interest-free loans from legal entities

An interest-free loan is a common phenomenon among business entities. Until recently, the attitude of tax authorities to this issue was unambiguous: the creditor is obliged to pay income tax. Therefore, any redistribution of funds within the holding became risky. But the decision of the higher courts made positive amendments.

The Essence

Organizations often need additional funding. For enterprises of one holding company, this problem is solved by providing a loan. Such transactions are used in the framework of financial planning. Creditors provide funds at no cost. But the recipient of such a transaction threatened with the collection of income tax (NPP).

Classical scheme

Companies create a legal entity, conclude several contracts with it. This enables the enterprise to start production activities quickly. After receiving the revenue, the organization accepts the "incoming" VAT. This solves the problem of determining the sources of payment of taxes, easily covered by cash gaps. In the BU, the transaction is formalized as a loan, and in the UU - as a redistribution of finance, for example, in the form of payment for delivery. The problems are caused by the consequences of an interest-free loan between legal entities, in particular the payment of VAT and NPP.

Legal regulation

The lender provides material assistance to the person in need. The debtor undertakes to return the amount at the specified time. So the parties enter into legal relations.

Terms of the transaction are determined by the contract. It begins to operate from the moment of transfer of the object (amount of funds, securities, bills, etc.). According to Art. 809 Civil Code, the transaction automatically becomes interest-free, if the object is things.

Requisites

In the contract it is necessary to specify such items:

• Time and place of his imprisonment;
• Parties to the transaction (full names of companies, initials of founders);
• Subject - interest-free loan;
• The terms of issue and the method of refund (most often use a scheme with monthly payments);
• Sanctions in the event of a delay in payment;
• Responsibility of the parties: reasons and conditions for termination of the contract, force majeure circumstances;
• Bank details;
• Signatures.

It is very important to check the accuracy of the paperwork and all the requisites. The presence of a notary at the conclusion of a transaction is welcomed. If the loan is granted in foreign currency, you must observe the exchange rate. If the contract does not specify the period for the refund, then it is calculated within 30 days from the date of the request.

Features

The loan agreement between legal entities (interest-free) can be repaid ahead of schedule. These transactions are not reflected in the profitability of the transaction: commission is still not accrued. Therefore, in such a scheme, the lender is primarily interested. But even after paying the debt, the relationship between the participants does not end. They have to pay the fees. Let's consider in detail the tax consequences of an interest-free loan between legal entities.

In the opinion of the Federal Tax Service, loan relations can be qualified as the provision of financial services. But the fee for them is not charged. An interest-free loan is considered by the tax authorities as non-operating income in the form of a property right or service (Article 250 of the Tax Code). The economic benefit is estimated at the discount rate of the Central Bank refinancing on the day when the interest-free loan is repaid.

Accounting

Tax consequences depend on the form of ownership of the participants in the transaction.

A legal entity that has received a certain amount from the creditor may then invest it in production. Then these funds will not be included in the taxable base. The company does not have to pay taxes.

If the creditor and the borrower are physical persons, then the payment of fees is not discussed. Obtaining interest-free loans from legal entities is accompanied by the payment of personal income tax - 35% of the current refinancing rate of 75%.

To get rid of the claims of the Federal Tax Service, you need to prove that the loan is not a service, the results of which will be used in activities.

Requirements

Borrowers can be a legal entity who:

• Have an official permission to enter into transactions;
• Undertake to use the funds received for the purposes stipulated in the contract.

The creditor may be an enterprise that is not prohibited by law and law from providing funds on credit. It requires only the ownership of the object. The subject of the loan is transferred to the full disposal, but for a time.

Return

Time to pay off debt is not limited by law. This period is agreed by the creditor and the borrower and usually depends on the solvency of the second party to the transaction. The creditor may demand an additional guarantee: a pledge of property, a shareholder's guarantee or a leader. Payment of funds is the transfer of the full amount to the creditor's account. In case of debt formation within a month (sometimes a quarter), the lender can apply to the court.

NC VS GK

The treatment of an interest-free loan in the Tax and Civil Codes differs in such parameters:

• In civil law, a loan and service contract is two different documents that can not be compared. At the same time, the transfer of funds for use was repeatedly considered by courts as the provision of property.
• The service recognizes the activities, the results of which have no material expression. Provision of funds is not. In addition, money is used after receipt.
• The service is considered free of charge, if the recipient is not obliged to transfer the property to the creditor. But a loan agreement always provides for the return of valuables.

Material benefit

There are many questions about the consequences of interest-free loans. The accrual of NPP tax specialists is called the identification of savings on interest. But in the Tax Code of the Russian Federation, obtaining material benefits takes place only when calculating personal income tax. In Art. 212 clearly describes the process of calculating the amount collected. This norm of the Federal Tax Service tries to apply to the NPP. The tax consequences of an interest-free loan between legal entities in the form of fines are usually challenged by claims.

Arbitrage practice

Despite the fact that most of the claims on this issue were resolved in favor of taxpayers, the number of claims from the Federal Tax Service for a long time did not decrease. The situation changed when the Supreme Arbitration Court of the Russian Federation passed a resolution stating that the Tax Code does not consider the benefits of saving for the use of borrowed funds as a basis for calculating the NPP. Such operations are not recognized as a service for the purpose of charging VAT, and funds under the loan agreement are not gratuitously received. Therefore, the negative consequences of granting an interest-free loan are minimized.

Risks

Detailed consideration requires transactions in which funds received under a loan agreement are used to formalize an interest-free loan between legal entities. The tax consequences in such transactions are more serious.

Expenses that reduce the basis for the calculation of NPP, recognize all the costs that are incurred in the implementation of activities aimed at making a profit. That is, when you take into account the costs of paying interest on loan agreements, you need to confirm that the use of funds is aimed at generating income. This is difficult to do when it comes to obtaining an interest-free loan. The organization can not take into account interest on loans in non-operating expenses. That is, the tax consequences of an interest-free loan between legal entities are to challenge such transactions of the Federal Tax Service in court.

Issuance of IP funds

Under the terms of the contract, the borrower receives some things or cash and agrees to return them after the expiry of the term. A loan is recognized as interest-free, according to which:

• The amount provided does not exceed 50 times the minimum wage.
• One of the parties to the transaction is not engaged in economic activities. You can provide a document confirming that the creditor transferred the funds that he received, for example, from the sale of property under the contract.
• The borrower receives values with certain generic characteristics.

The tax consequences of an interest-free loan between legal entities may not occur at all, if at least a minimum rate for the use of funds is attributed to the document. You can conclude an additional agreement and prescribe in it that at the time of repayment the borrower will have to pay, for example, 1% per annum.

Consequences of non-return

The creditor has the right to demand the return of funds through the court within three years from the day following the date of repayment stipulated in the contract. If the term of the loan is 5 years, the dispute can last up to 8 years. Only after this period can you write off the accounts payable and include its size in the database for the calculation of the NPP.

If the borrower sends letters to the creditor every three years following the expiry date, willing to repay the debt, the statute of limitations will never expire.

In order not to consider the amount of unreturned funds in the composition of taxable income, you need:

• Set the maximum loan repayment period;
• After its occurrence and after 2 years and 11 months, send a letter to the lender about the recognition of the debt by mail with a notice of delivery.