A loan agreement between individual entrepreneurs is concluded when property is transferred in real or monetary terms by one person to another. There are interest-bearing and interest-free loans.
The law establishes that a loan is considered interest-bearing, even if this clause is not specified in the contract. IN in this case interest is accrued on borrowed funds in the amount of the refinancing rate established by the Central Bank and is paid every month.
A borrowing agreement between individual entrepreneurs can be interpreted as interest-free only if this is expressly stated in the agreement.
Any such agreement, including those concluded between individual entrepreneurs, requires compliance with written form. Only borrowings between individuals in an amount not exceeding 1 thousand rubles are not subject to this rule.
Individual entrepreneurs are allowed by law to enter into loan agreements without specifying the amount. The amount of debt is indicated in additional annexes to the agreement.
In this case, one party can borrow funds from the second again on the basis of the same agreement. Typically such agreements are interest-free.
Is an interest-free loan really beneficial?
An interest-free borrowing agreement can be concluded between individual entrepreneurs, that is, an operation not related to the implementation entrepreneurial activity lender, since it does not imply profit in the form of interest.
However, not all so simple. Such contractual relationships give rise to tax obligations. The entrepreneur-lender does not have any obligations to the budget. The borrower is another matter.
Tax authorities consider the benefit received in the form of saved interest as non-operating income. To calculate it, the refinancing rate approved for this period is taken as a basis.
On the amount of these unrealized expenses, the individual entrepreneur, who is on a simplified taxation system, pays personal income tax in the amount of 35 percent.
Main points in the loan agreement for individual entrepreneurs
The following basic information must be entered into the document:
- Date of preparation, serial number document;
- sides;
- subject of the contract. This should include the amount, currency of the debt, the amount of interest (if any), the period for repayment of the loan object, and other conditions as agreed by the parties;
- rights and obligations of the parties to the agreement;
- dispute resolution (in judicial procedure, in arbitration);
- conditions for termination of the contract and liability arising from this;
- details, signatures of the parties.
There are documents in mandatory attached to the main agreement.
These include:
- repayment schedule for principal and accrued interest;
- act of acceptance and transfer of the object of the contract;
- additional agreements etc.
Loan agreement between an individual entrepreneur and LLC
Such a loan can also be interest-bearing or interest-free and must necessarily be of a targeted nature.
The Constitutional Court of the Russian Federation determines: with an interest-free loan, the situation also arises for the individual entrepreneur to receive material income. This type of income is not earned as a result of entrepreneurial activity and is subject to personal income tax.
However, the Ministry of Finance in its letter dated August 27, 2014 established that an interest-free loan for individual entrepreneurs is not considered a material benefit and, moreover, is not included in the tax base when calculating personal income tax or income tax.
The above applies only to interest-free loans and loans with interest amounting to 2/3 of the refinancing rate established at that time.
From the point of view of an LLC, it looks like this: when calculating the taxable base, profit in the form of unearned interest is taken into account only if the transaction meets the criteria of a controlled one. This, for example, is considered debt to a dependent person (individual entrepreneur).
If the transaction was not recognized as controlled, then there is no need to use the amount of unearned interest when calculating income tax.
Loan agreement between individual entrepreneur and individual
An LLC or individual entrepreneur has the right to lend money to individuals.
For individual entrepreneur the amount of funds provided will not be considered as an expense for tax accounting, but for individual, if the debt is interest-free, there is a material benefit from the use of money.
In this case, the borrower becomes a personal income tax payer, and the lender himself acts as his tax agent. Personal income tax is transferred to the budget no later than the day the tax amount is withheld from the borrower.
An individual does not have obligations to the budget if borrowed funds are used for the purchase or construction of housing. Tax rate for borrowers: 35 percent for residents of the Russian Federation and 30 percent for non-residents.
Business development and expansion requires regular investment. The question of the need for financial investments sooner or later arises among both beginning entrepreneurs and successful businessmen. In such a financial situation, the question arises: “Where can I get a loan for an individual entrepreneur?”
And this article presents how banks where you can get an individual entrepreneur loan without guarantors or collateral. To collect everything for you Better conditions banks in one place, we analyzed quite a lot of loan offers providing loans for individual entrepreneurs in 2019.
Ways to get an individual entrepreneur loan
Bank lending is an effective and efficient solution financial problems, a beneficial tool for the development of small and medium-sized businesses, the ability to respond in a timely manner to emerging negative circumstances. Loans for individual entrepreneurs are available for the purposeful development of business, replenishment working capital, for the purchase of new equipment, expanding the production base. Almost every credit institution has loan offers, even for individual entrepreneurs with zero reporting (declaration).
Private entrepreneurs confirm their solvency on the basis of accounting documents, which indicate income from FCD; using declarations; income and expense journals; other accounting reports. In order to obtain a loan for an individual entrepreneur from scratch, it is necessary to draw up a promising business plan. It should reflect specific indicators for future periods, taking into account the specific nature of doing business in Russia and the real level of demand for specific services or goods. When considering an application for a loan for entrepreneurs, it is important for the bank to understand for what purposes the loan money will be used, and from what funds it is planned to repay the debt. The bank’s credit manager will answer the question of how exactly to get an individual entrepreneur’s loan under the chosen program.
What loans are given to individual entrepreneurs? For small and medium-sized businesses, banks offer loans in the following areas:
- Express - loans: designed for businessmen with limited time. A minimum package of documents is provided. The decision to approve the loan and issue it is made within an hour. The interest rate for such programs is much higher, the loan term is shorter.
- Consumer loan for individual entrepreneurs: a wider package of documents is required. If needed large sum, you should be prepared to provide loan collateral in the form of real estate, vehicles no older than 3 years, or capable and solvent guarantors.
- Target programs, including government: include loans for small businesses. This is a type of financing the activities of legal entities, when the Assistance Fund can act as a guarantor. Issued only for specific purposes. Designed for entrepreneurs involved in promising business and have already been registered for more than three months.
- A number of banks provide Individual entrepreneur cash loan, revolving/non-revolving lines of credit and overdrafts.
TOP 6 profitable banks for an individual entrepreneur loan
Ratings of banks offering the most profitable loan products for individual entrepreneurs are formed from the assessment general conditions, list of required documents, interest rate, duration of lending, possible cooperation with starting individual entrepreneurs.
It is beneficial for individual entrepreneurs to take out a loan from the bank where the current account is opened. Loans are offered to regular customers on favorable terms. Before opening an individual entrepreneur account, it is recommended to monitor banks not only regarding favorable tariffs, settlement and cash services, but also from a lending point of view.
The best offers in 2019 are offered by UBRIR, Housing Finance Bank, OTP Bank, Renaissance Credit and Sovcombank. We offer you to get acquainted with the terms of lending a specialized loan for small businesses from 2 banks and 4 universal consumer loan programs that can be obtained by an individual engaged in individual entrepreneurial activity.
The best bank giving a loan for individual entrepreneurs secured by an apartment from BZhF
Very often, entrepreneurs need a large sum of money to develop their business, to increase turnover or for other purposes related to business development. It is very difficult to take out a large loan without collateral, even if you collect certificates. And then the most the best option becomes a loan for an individual entrepreneur secured by an apartment. The Housing Finance Bank is by far the most popular bank among individual entrepreneurs, which lends against real estate, issuing the necessary amount of money to businessmen without bureaucracy and unnecessary certificates in the shortest possible time. Due to the fact that the apartment is collateral, the bank evaluates your credit history and your business more favorably. This gives a real opportunity to take out a loan for an individual entrepreneur without refusal.
So, the loan terms:
- The loan term is up to 20 years, and the rate is from 12.49%.
- Amount up to 8 million rubles (but not more than 50-60% of market value apartments).
- If the apartment is owned by a spouse, then she can be indicated in the loan agreement as a mortgagor.
- Early repayment at any time without penalties or moratoriums.
- The apartment must be located in the cities where the bank operates: Krasnodar, Moscow, Nizhny Novgorod Region, Novosibirsk, Omsk, Perm, St. Petersburg, Yekaterinburg, Kazan, Volgograd.
Business loan for individual entrepreneurs secured by real estate
In the last few years, P2B crowdlending projects have been actively developing all over the world, when individual investors lend to borrowers without the participation of credit institutions. In Russia today there are also such companies offering lending to small and medium-sized businesses on simpler and more understandable terms.
One of these companies is the investment and business financing agency “Money in Business”, which lends to individual entrepreneurs secured by real estate and without providing management, accounting and other financial statements.
The loan offer is inherently unique and cannot be compared with any other bank. If an entrepreneur urgently needs money, we recommend paying attention to this company.
Brief terms of the individual entrepreneur loan:
- The minimum amount is from 500 thousand rubles for a period of 2 years with the possibility of extension.
- Funds are issued strictly for targeted financing of your business.
- It is possible to provide commercial or residential real estate, as well as real estate of third parties, as collateral.
Bank giving a loan to individual entrepreneurs without collateral or guarantors
OTP is one of those banks that provide consumer loans to individual entrepreneurs without collateral or a guarantor. An undeniable advantage This credit institution is able to submit an application online from the official website and receive a final decision in 15 minutes. OTP Bank offers favorable loan in cash, both for individuals and individual entrepreneurs.
Lending terms:
- Loan amount from 15 thousand to 4 million rubles.
- The loan is issued for a period of 12 to 120 months.
- Interest rate - from 10.5% per annum.
- Providing security in the form of a guarantor or collateral is not required.
The only documents you need to submit are a passport of a citizen of the Russian Federation, a Unified State Register of Individual Entrepreneurs (USRIP) certificate, and an INN. The bank is ready to cooperate with beginning businessmen.
Cash loan for individual entrepreneurs from scratch on the day of application
Renaissance Credit is one of the few banks that provides consumer loans, including for individual entrepreneurs. We list the main advantages and possibilities of a cash loan for individual entrepreneurs in this bank:
- Credit limit - from 30 to 700 thousand rubles;
- Interest rates range from 11.9%;
- Duration of the loan agreement: from 24 to 60 months;
- To apply for a loan, it is enough to present a passport of a citizen of the Russian Federation and a second document of your choice;
- No collateral is required, but proof of title to the property will guarantee a reduced interest rate.
The application is sent from the bank's website. If approved, you must visit the office and submit a minimum package of documents. Private entrepreneurs only need to bring a certificate of state registration IP. A balance sheet is not required. You can also provide a title for a car or documents for an apartment as your solvency. (The deposit will not be used!). Offers from Renaissance Credit Bank can be taken advantage of by businessmen starting an individual entrepreneur business from scratch. The optimal rate and loyal conditions will allow you to quickly receive the required amount on the day of application without unnecessary paperwork.
Sovcombank - cash loan at low interest
Sovcombank offers consumer loans to all categories of citizens, including individual entrepreneurs.
- The limit is 1 million rubles for any purpose.
- Basic interest rate from 12% per annum;
- The application can be submitted via the Internet, the loan is issued at the bank office.
- The loan is issued for a period of up to 60 months.
- Review of the application from one hour to three days.
Individual entrepreneurs have the opportunity to get a loan in larger amount by providing real estate or a vehicle as collateral. There is a program “For Responsible Plus”. No documentation is required from private entrepreneurs. Therefore, a consumer loan from Sovcombank is suitable for individual entrepreneurs with zero reporting.
Attention! The bank approves loans to new customers only for persons over 35 years of age. If you have less, then it’s better to leave your application at another bank.
Loan "Trust" for business development from Sberbank
A loan for individual entrepreneurs is offered by the country's main lender, Sberbank. The Trust program will allow you to resolve current financial difficulties and implement plans in the future. The essence of a business loan:
- Type of loan - without collateral and for any needs.
- The loan is available to individual entrepreneurs whose annual revenue does not exceed 60 million rubles.
- When taking out a loan secured by a guarantee, a reduced interest rate applies.
- The base rate is 16.5% per annum.
- The maximum loan term is 36 months.
- Credit limit - up to 3 million rubles.
Sberbank requires such documents for an individual entrepreneur's loan as a passport of a citizen - an individual, a military ID if available, a Unified State Register of Individual Entrepreneurs certificate, a certificate from the Federal Tax Service on the registration of a private entrepreneur, the last option financial statements with the stamp of the tax authority, tax payment receipts. Licenses, permits to operate, lease agreements (sublease) or certificates of ownership of non-residential premises may be required.
Thus, answering the question of where to get a loan for an individual entrepreneur and how to get it is not so difficult. If the terms of a specialized loan for a small business are difficult to meet, it is possible to take out a standard consumer loan in an amount acceptable for starting a business. I hope the review of the conditions of banks issuing loans to individual entrepreneurs was useful for you and you will find financing for your business from the proposed list.
The fact that the loan is interest-free must be expressly stated in the contract. Otherwise, the loan is considered to be provided at interest s clause 1 art. 809 Civil Code of the Russian Federation.
When an entrepreneur takes out an interest-free loan for his business, he may subsequently have to pay personal income tax at a rate of 35 %clause 2 art. 224 Tax Code of the Russian Federation with material benefits from savings on interest. Let us recall that such a benefit occurs when the interest on the loan is less than 2/3 of the refinancing rate I subp. 1 clause 1, sub. 1 item 2 art. 212 Tax Code of the Russian Federation. That is, today it is below 5.5% per annum (8.25 %Directive of the Bank of Russia dated April 29, 2011 No. 2618-U x 2/3).
The date of receipt of income in the form of financial benefits is considered to be the day the loan is repaid A subp. 1 clause 1, clause 2 art. 212 Tax Code of the Russian Federation; Letter of the Ministry of Finance of Russia dated May 16, 2011 No. 03-04-05/6-350. You can calculate personal income tax on material benefits as follows: To subp. 1 item 2 art. 212, sub. 3 p. 1 art. 223, paragraph 2 of Art. 224 Tax Code of the Russian Federation; Letter of the Ministry of Finance of Russia dated 08/09/2010 No. 03-04-06/6-173:
We have prepared a cheat sheet that will help entrepreneurs quickly figure out when they need to pay personal income tax.
| Tax regime applied by individual entrepreneurs | The need to pay personal income tax, provided that the loan is received | |
| from an individual | from an organization or other individual entrepreneur | |
| General mode | Not T subp. 1 clause 1 art. 212, paragraph 4 of Art. 346.26, paragraph 24 of Art. 217 Tax Code of the Russian Federation; Letter of the Ministry of Finance of Russia dated August 18, 2009 No. 03-11-09/284 | D A subp. 1 clause 1 art. 212, paragraph 24 of Art. 217, paragraph 3 of Art. 346.11, paragraph 3 of Art. 346.1 Tax Code of the Russian Federation; Resolution of the Federal Antimonopoly Service of June 23, 2011 No. A65-20542/2010 |
| Simplified | ||
| Payment of Unified Agricultural Tax | ||
| Payment of UTII | Not T clause 4 art. 346.26, paragraph 24 of Art. 217 Tax Code of the Russian Federation if the loan will be used for “imputed” activities. For example, for the purchase of goods within the retail trade And Resolution of the Federal Antimonopoly Service of the North-Western Territory of June 25, 2009 No. A05-9905/2008; FAS DVO dated 01.09.2008 No. F03-A73/08-2/3456 | |
Personal income tax must be calculated by the person who issued the loan. It is he who is recognized by the tax agent for this income at clause 2 art. 212, paragraph 1, art. 226 Tax Code of the Russian Federation. If he cannot withhold the calculated amount of tax, then he must notify the borrower entrepreneur, as well as his Federal Tax Service, about this no later than January 31 of the following year. A clause 5 art. 226 Tax Code of the Russian Federation. And then the entrepreneur will have to submit a personal income tax declaration to the inspectorate at the place of residence and pay the tax.
So, the following picture emerges. For entrepreneurs under the general or simplified regime, as well as those paying agricultural tax, it is best to take a loan from individuals or from another individual entrepreneur who would appear in the contract as an ordinary “physician”. Then you won’t have to pay personal income tax.
If an entrepreneur took out an interest-free loan from an organization, then for his own peace of mind it is better to declare the income received and pay tax accordingly no later than April 30 and July 15 of the year following the year of repayment of the loan A clause 6 art. 227, paragraph 1, art. 229 Tax Code of the Russian Federation. This definitely needs to be done if you have received a 2-NDFL certificate from the lending organization, which shows income in the form of financial benefits. After all, this means that tax authorities also have this information. And pp. 2, 3 tbsp. 230 Tax Code of the Russian Federation.
Entrepreneurs on the imputation do not care from whom to take an interest-free loan. The main thing is to use this money directly in special-regime activities. In addition, they should notify their lender of the applied special regime so that he knows that he does not have to perform the duties of a tax agent.
My arguments are consistent with the Position of the Supreme Arbitration Court of the Russian Federation
PRESIDIUM OF THE HIGH ARBITRATION COURT OF THE RUSSIAN FEDERATION
RESOLUTION
dated August 3, 2004 N 3009/04
Presidium of the Supreme Arbitration Court Russian Federation consisting of:
presiding officer - Deputy Chairman of the Supreme Arbitration Court of the Russian Federation A.A. Arifulin;
members of the Presidium: Andreeva T.K., Babkina A.I., Boykova O.V., Vyshnyak N.G., Kozlova O.A., Naumova O.A., Savkina S.F., Slesareva V.L. , Sukhovoy G.I., Yukhneya M.F.
considered the application of the closed joint-stock company "Samaradorproject DVI" for a supervisory review of the decision of the Federal Arbitration Court of the Volga District dated February 17, 2004 in case No. A55-9083/03-31 of the Arbitration Court Samara region.
Having heard and discussed the report of Judge N.G. Vyshnyak, the Presidium established the following.
Closed Joint-Stock Company“Samaradorproject DVI” (hereinafter referred to as the company) applied to the Arbitration Court of the Samara Region with an application to invalidate the decision of the Inspectorate of the Ministry of the Russian Federation for Taxes and Duties for the Leninsky District of the city of Samara (hereinafter referred to as the inspection) dated July 25, 2003 N 09-34/4769.
The contested decision of the tax authority was made based on the results of a desk tax audit of the income tax return for 2002 submitted by the company.
The inspection found that the taxpayer had understated the taxable base due to the failure to include in non-operating income the economic benefits from the interest-free use of borrowed funds under the loan agreement dated February 21, 2002 No. 3-02.
By decision of the tax authority, the taxpayer was asked to pay arrears in the amount of 277,848 rubles, determined from the amount of funds saved by him as a result of using an interest-free loan.
Having disagreed with the decision of the tax authority, the company appealed to the arbitration court.
The court of first instance, by decision dated October 8, 2003, satisfied the stated requirement, based on the fact that in accordance with paragraph 8 of Article 250 of the Tax Code of the Russian Federation, non-operating income of a taxpayer is income in the form of property (work, services) received free of charge, except for the cases specified in the article 251 of the Code, from paragraph 10 of which it follows that when determining the tax base, funds received under credit and loan agreements, as well as amounts received to repay such borrowings, are not taken into account, which took place in in this case.
The Federal Arbitration Court of the Volga District, by a resolution dated February 17, 2004, canceled the decision and refused to satisfy the company’s claim, guided by the following.
The decision of the tax authority refers to the economic benefit received by the company as a result of the gratuitous service provided to it by providing an interest-free loan.
According to paragraph 8 of Article 251 of the Tax Code of the Russian Federation, services received free of charge are classified as non-operating income. Subclause 15 of clause 3 of Article 149 of the Code defines the provision of a loan in cash as a financial service.
There appears to be a typo in the official text of the document: this refers to clause 8 of Article 250, and not clause 8 of Article 251 of the Tax Code of the Russian Federation.
- The receipt by the company of 10,729,809 rubles under an interest-free loan agreement contributed to the emergence of economic benefits that arose as a result of interest not paid under this agreement.
Thus, the unpaid amount of interest is, in the opinion of the cassation court, non-operating income of the company.
In an application submitted to the Supreme Arbitration Court of the Russian Federation for a supervisory review of the ruling of the cassation court, the company asks to cancel this judicial act, citing the incorrect application of substantive law by the court, as well as the inconsistency of the appealed ruling with judicial arbitration practice.
Having checked the validity of the arguments contained in the application, the Presidium considers that the contested judicial act is subject to cancellation, and the decision of the court of first instance is to be upheld on the following grounds.
Article 247 of the Tax Code of the Russian Federation (hereinafter referred to as the Code) establishes that the object of taxation on corporate income tax is the profit received by the taxpayer.
Moreover, for Russian organizations Profit is recognized as income received, reduced by the amount of expenses incurred, which are determined in accordance with Chapter 25 of the Code “Organizational Income Tax”.
For the purposes of this chapter of the Code, income means income from the sale of goods (work, services) or property rights, except for the cases specified in Article 251 of the Code.
The inspectorate considered that an interest-free loan is a gratuitous service, as a result of which the company received non-operating income in the form of material benefits from savings on interest, and determined this benefit in the amount of interest accrued based on the refinancing rate established by the Central Bank of the Russian Federation during the period of use of borrowed funds in cash.
The cassation court recognized the position of the tax authority as consistent with Article 41 of the Code.
Meanwhile, according to the provisions of this article, income is recognized as an economic benefit in monetary or in-kind form, taken into account if it is possible to assess it and to the extent that such benefit can be assessed, and determined in accordance with the chapters “Tax on personal income”, “Tax”. on the profits of organizations”, “Tax on capital income” of the Code.
It follows from the above that the possibility of taking into account economic benefits and the procedure for assessing them as an object of taxation by one or another tax should be regulated by the relevant chapters of the Code.
Thus, Article 210, contained in Chapter 23 of the Code “Income Tax for Individuals”, determines that the material benefit received from savings on interest for the taxpayer’s use of borrowed (credit) funds received from organizations or individual entrepreneurs is taken into account when determining the tax base for this tax in accordance with Article 212 of the Code.
Chapter 25 of the Code “Organizational Income Tax” does not consider the material benefit from savings on interest for the use of borrowed funds as income subject to such tax.
The use of funds under a loan agreement without the lender charging interest was erroneously assessed by the cassation court as a legal relationship for the provision of services.
In accordance with paragraph 5 of Article 38 of the Code, a service for tax purposes is an activity whose results do not have material expression and are sold and consumed in the process of carrying out this activity. Relationships under a loan agreement do not have such signs.
As for paragraph 3 of Article 149 of the Code, this paragraph contains a list of transactions exempt from value added tax, and what operations involving the provision of funds on loan for these purposes, Chapter 21 of the Code “Value Added Tax” refers to as financial service cannot be applied for purposes of other taxation.
The court of first instance rightly stated that cash, received by the company under a loan agreement on the terms of repayment of the same amount, cannot be considered as received free of charge.
Paragraph 2 of Article 248 of the Code provides that for the purposes of taxing the profits of organizations, property (work, services) or property rights are considered received free of charge if the receipt of this property (work, services) or property rights is not associated with the occurrence of an obligation on the recipient to transfer the property (property rights ) to the transferor (perform work for the transferor, provide services to the transferor).
According to paragraph 1 of Article 807 of the Civil Code of the Russian Federation, under a loan agreement, one party (the lender) provides the ownership of the other party (borrower) with money or other things defined by generic characteristics, and the borrower undertakes to return to the lender the same amount of money (loan amount) or an equal amount other things he received of the same kind and quality. Consequently, the borrower, after receiving a loan, always has the obligation to return the property to the lender.
In this case, the funds received under the loan agreement were subject to return by the company to the lender.
Under these circumstances, in accordance with paragraph 1 of Article 304 of the Arbitration Procedural Code of the Russian Federation, the ruling of the cassation court is subject to cancellation as violating the uniformity in the interpretation and application of the rules of law by arbitration courts.
Taking into account the above and guided by Article 303, paragraph 5 of part 1 of Article 305, Article 306 of the Arbitration Procedural Code of the Russian Federation, the Presidium of the Supreme Arbitration Court of the Russian Federation
decided:
the decision of the Federal Arbitration Court of the Volga District dated February 17, 2004 in case No. A55-9083/03-31 of the Arbitration Court of the Samara Region is cancelled.
The decision of the Arbitration Court of the Samara Region dated October 8, 2003 in this case is left unchanged.
Presiding
A.A.ARIFULIN
FEDERAL ARBITRATION COURT OF THE FAR EASTERN DISTRICT
In the name of the Russian Federation
RESOLUTION
arbitration court of cassation instance
dated November 1, 2006 Case No. Ф03-А73/06-2/3684
(extraction)
The operative part of the resolution was announced on October 25, 2006. Full text The resolution was made on November 1, 2006.
The Federal Arbitration Court of the Far Eastern District considered in a court session cassation appeal Inspectorate of the Federal Tax Service for the Zheleznodorozhny District of Khabarovsk on the decision of May 18, 2006 in case No. A73-2447/2006-23 of the Arbitration Court of the Khabarovsk Territory on the application of the limited liability company "Trade and Industrial Company "Vostok" to the Inspectorate of the Federal Tax Service for Zheleznodorozhny district of Khabarovsk to invalidate the decision.
The limited liability company "Trade and Industrial Company "Vostok" (hereinafter - the company, LLC "TPK "Vostok") appealed to the Arbitration Court of the Khabarovsk Territory with an application to invalidate the decision of the Inspectorate of the Federal Tax Service for the Zheleznodorozhny District of Khabarovsk (hereinafter - the inspection , tax authority) dated February 26, 2006 N 17-12/3163, according to which the company was brought to tax liability under paragraph 1 of Article 122 of the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation) for incomplete payment of income tax, paragraph 2 of Article 119 of the Tax Code of the Russian Federation for failure to submit a tax return for income tax for 2003 in the form of collection of fines, respectively, in the amounts of 2,237,704 rubles. and 1,245,339 rubles, and an additional accrual of 1,1188,515 rubles. income tax and 1,811,173 rubles. penalties for late payment.
- ConsultantPlus: note.
This refers to clause 10 of part 1 of article 251 of the Tax Code of the Russian Federation.
- By a court decision dated May 18, 2006, the company’s application was partially satisfied. The contested decision of the tax authority was declared invalid in terms of the collection of income tax, penalties, a fine under paragraph 1 of Article 122 of the Tax Code of the Russian Federation, a fine under paragraph 2 of Article 119 of the Tax Code of the Russian Federation in the amount of 1,245,239 rubles. on the grounds that funds received by the company under loan agreements, in accordance with paragraph 10 of Article 251 of the Tax Code of the Russian Federation, are not taken into account when determining the tax base for income tax.
The rest of the stated claims were denied.
The legality and validity of the decision were not verified by the appellate court.
In the cassation appeal, the inspectorate asks the judicial act that took place in the case regarding the satisfied demands to be canceled and a new decision is made to refuse to satisfy the application in full.
According to the complainant, supported by his representatives in the cassation court, the court did not take into account that the loan agreements were concluded in violation of the norms of current legislation, the disputed funds are non-operating income and, in accordance with paragraph 8 of Article 250 of the Tax Code of the Russian Federation, are subject to inclusion in the tax base for tax at a profit.
Representatives of the society object to the arguments of the complaint, considering the court's decision to be legal and justified, and therefore ask that it be left unchanged and the cassation appeal not satisfied.
Having checked the legality of the court decision in the manner and within the limits of Articles 284, 286 of the Arbitration Procedural Code of the Russian Federation, based on the arguments of the complaint, the Federal Arbitration Court of the Far Eastern District finds no grounds for canceling the decision court decision.
As established by the court, the inspection carried out an on-site tax audit of the company on the correctness of calculation and payment to the budget, in particular, income tax for the period from 05/26/2003 to 12/31/2004, based on the results of which an act dated 01/26/2006 N 17-33 dsp was drawn up and a decision was made dated February 26, 2006 N 17-12/3163 to bring the taxpayer to tax liability provided for:
- paragraph 1 of Article 122 of the Tax Code of the Russian Federation for incomplete payment of income tax in the form of a fine in the amount of 2,237,704 rubles;
- paragraph 2 of Article 119 of the Tax Code of the Russian Federation for failure to submit fixed time tax return for income tax for 2003 in the form of a recovery of 1,245,239 rubles. fine By the same decision, an additional amount of 11,188,515 rubles was accrued. income tax and 1,811,173 rubles. penalties for late payment.
The decision contains the conclusion of the tax authority that the company, in violation of paragraph 8 of Article 250 of the Tax Code of the Russian Federation, understated non-operating income from funds received free of charge from a citizen of the People's Republic of China, Chen Zengmin, to the cash desk of TPK Vostok LLC in the amount of 5,765,458 rubles. for the period from March 26, 2003 to December 31, 2003, in the amount of 40,853,354 rubles. for the period from 01/01/2004 to 31/12/2004, which led to an underpayment of income tax to the budget.
According to Article 247 of the Tax Code of the Russian Federation, the object of taxation for corporate income tax is the profit received by the taxpayer. Profit for the purposes of Chapter 25 of the Code for Russian organizations (i.e. legal entities formed in accordance with the legislation of the Russian Federation) is recognized as: income received, reduced by the amount of expenses incurred, which are determined in accordance with this chapter.
By virtue of Article 248 of the Tax Code of the Russian Federation, income includes: income from the sale of goods (work, services) and property rights and non-operating income.
Article 250 of the Tax Code of the Russian Federation (clause 8) determines that income in the form of gratuitously received property (work, services) or property rights, with the exception of the cases specified in Article 251 of the Code, is recognized as non-operating income.
Article 251 of the Tax Code of the Russian Federation establishes a list of income that is not taken into account when determining the tax base, which, among others, includes income in the form of funds or other property received under credit or loan agreements.
Consequently, funds received under a loan agreement on the terms of repaying the same amount cannot be considered as received free of charge, since the loan obligation provides for the borrower’s obligation to repay the loan amount.
When resolving the dispute, the court established and confirmed by the case materials that the limited liability company “Vostok Commercial and Industrial Company” was established by the Mudanjiang Foreign Trade Company of Heilongjiang Province on May 20, 2003.
On May 26, 2003, the company was registered in the Russian Federation, for which a state registration certificate N 27001184145 was issued.
Since September 2003, interest-free loan agreements were concluded between TPK Vostok LLC (director Chen Zengmin) and Chinese citizen Chen Zengmin. The refund period is determined within 3 years from the date of conclusion of the contract.
Under the loan agreement, the funds are transferred into the ownership of the borrower (Article 807 of the Civil Code of the Russian Federation), and therefore the right of the lender (Chen Zengmin) to them is lost.
On August 18, 2003, an investment agreement was concluded between TPK Vostok LLC and Vector LLC for the construction of an international shopping center"Asia".
Consequently, construction is financed from the own funds of TPK Vostok LLC, the only participant of which is the Mudanjiang Foreign Trading Company of Heilongjiang Province.
The materials of the case confirm and do not dispute the tax authority that within one business day the company deposited cash received under interest-free loan agreements into its current account as borrowed money, and then, on the basis of payment orders, transferred it to the current account of the contractor’s organizations to finance the construction project.
The position of the tax authority is based on the following circumstances. Interest-free loan agreements are concluded between a company (borrower) that does not have permission to use foreign workers, and a citizen of the People's Republic of China Chen Zengmin (lender), who has no legal basis for dealing labor activity on the territory of the Russian Federation, transactions were made during the period when the lender was not in the territory of the Russian Federation, the amounts deposited into the company's cash desk by the lender were not imported into the territory of the Russian Federation. For the stated reasons, the inspection came to the conclusion that these transactions were concluded contrary to the procedure established by the legislation of the Russian Federation and, by virtue of Article 168 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), are void using the consequences of a void transaction established by Article 169 of the Civil Code of the Russian Federation.
Checking the contested decision of the tax authority for compliance with the law, the court, having established the factual circumstances and assessed the evidence available in the case in accordance with Article 71 of the Arbitration Procedure Code of the Russian Federation, came to the conclusion that the concluded loan agreements cannot be classified as void transactions.
The court's conclusions are correct.
By virtue of Article 168 of the Civil Code of the Russian Federation, a transaction that does not comply with the requirements of the law or other legal acts is void unless the law establishes that such a transaction is contestable or does not provide for other consequences of the violation.
The tax authority does not refer and the court has not established which norms of civil law the disputed transactions do not comply with.
The condition for the application of Article 169 of the Civil Code of the Russian Federation is the presence of intent of the participant in the transaction, which must be proven.
Due to the lack of adequate evidence to substantiate the inspectorate’s arguments about the nullity of the loan agreements, the court came to correct conclusion about the consistency of these transactions with the fundamentals of the rule of law.
Moreover, the consequence of the invalidity of the group of transactions under consideration by force of law is the recovery of everything received and due under it to the income of the Russian Federation. Thus, the position of the tax authority that the recognition of transactions as void indicates that the funds contributed by the lender to the company's cash desk under loan agreements are received free of charge does not correspond to this legal norm. For the taxpayer, the very fact of a business transaction, which is confirmed by primary accounting documents, is important.
Thus, as the court correctly pointed out, funds received in the form of loans cannot be recognized as received free of charge, since, according to clause 1.4 of the disputed agreements, the borrower undertakes to repay the loan amount to the lender within three years from the date of conclusion of the agreement.
Income tax was additionally assessed for 2003 and 2004, while the deadline for refunding funds has not yet expired.
Consequently, the tax authority’s reference to paragraph 8 of Article 250 of the Tax Code of the Russian Federation when assessing additional income tax for the disputed period is unlawful.
Since funds received under loan agreements in accordance with paragraph 10 of Article 251 of the Tax Code of the Russian Federation are not taken into account when determining the tax base, the court rightfully invalidated the decision of the inspectorate to assess additional disputed amounts of income tax, penalties and fines under paragraph 1 of Article 122 of the Tax Code of the Russian Federation, as well as a fine in the amount of 1,245,239 rubles. under paragraph 1 of Article 119 of the Tax Code of the Russian Federation.
At the same time, the court rightfully recognized that it was justified to bring the company to tax liability provided for in paragraph 2 of Article 119 of the Tax Code of the Russian Federation for failure to submit an income tax return for 2003, in the form of a fine in the amount of 100 rubles. The company is not appealing the court decision in this part.
The arguments of the cassation appeal, which come down to a different assessment of the evidence in the case than that of the court, and do not refute the validity of the court’s conclusions, cannot serve as a basis for canceling the appealed decision, since they do not indicate a violation by the arbitration court of the rules of substantive and procedural law.
Guided by Articles 274, 284 - 289 of the Arbitration Procedural Code of the Russian Federation, the Federal Arbitration Court of the Far Eastern District
DECIDED:
the decision of the Arbitration Court of the Khabarovsk Territory dated May 18, 2006 in case No. A73-2447/2006-23 is left unchanged, the cassation appeal is not satisfied.
The decision comes into force from the day of its adoption.
Sometimes there is a need to re-borrow money to develop a business. If a legal entity or entrepreneur has available funds, he can lend them on the terms of an interest-free loan. Such a loan does not bring benefits, since no interest is charged for using the money. Basically, affiliates use interest-free loans.
What is the essence of loans between individual entrepreneurs and LLCs?
A loan is a transaction where the lender transfers a certain amount of money or other property to the borrower. The borrower undertakes to return what was received to the lender in the same volume and amount. Interest may accrue on the loan. Civil legislation, Art. 809 of the Civil Code of the Russian Federation contains the concept of an interest-free loan:
- loan amount is less 50 minimum sizes wages;
- the subject of the contract is not money, but things;
- borrowed funds are not used to make a profit.
In these cases, the loan is undoubtedly interest-free, but the amounts lent can be much larger, and in this case, the tax authorities may have questions when auditing activities.
In other cases, the condition that the loan is interest-free must be specified in the agreement, otherwise interest must be charged on the loan amount in the amount of the refinancing rate. This right can be used by both the lender and the Federal Tax Service. In the first case, a controversial situation will arise between the lender and the borrower. Secondly, the tax authorities will have claims against the lender. The Federal Tax Service will accrue additional interest under the agreement and oblige the lender to pay tax on the profit received. An interest-free loan in itself does not count towards profit or loss, but different situations The tax authorities believe that even with this type of loan, the parties to the transaction have tax obligations. The amount is lent for a certain period and must be repaid in the same amount.
Sometimes the lender decides to forgive the loan amount.
Then the borrower will have non-operating income, which must be reflected in the tax return and tax must be paid on this amount. Claims from tax authorities more often arise against the borrower, but the existing arbitrage practice contains examples of claims by the Federal Tax Service against lenders. Most often, controversial situations arise when loans are provided by interdependent persons. And although the courts take the side of taxpayers, questions from the Federal Tax Service do exist and can only be appealed in court.
Conditions
When applying for loans between an individual entrepreneur and an LLC, the conditions in each case will be determined individually. There are a number of provisions that are mandatory in the contract:
- Subject of the loan: the exact amount and currency of funds or a list of things.
- Loan terms. If no term is specified, the loan will have to be repaid on demand. If the contract is concluded for a period of less than a year, then it is considered short-term, if for a period of more than a year, it is considered long-term.
- Interest. For an interest-free loan, this must be stated in the contract. Otherwise, the tax service, when checking, will force you to charge interest in the amount of the rate of the Central Bank of the Russian Federation in effect at the time of return.
- Purpose of the loan. It is necessary to indicate for what purposes the money is given. If the purpose is not specified, then the loan is considered non-targeted, and the borrower can spend the funds at his own discretion.
- Sanctions in case of delay. Even with an interest-free loan, penalties and fines for violating repayment deadlines can be specified in the contract. The parties also determine the amount of the penalty and the procedure for calculating it - by law or contractually.
- The procedure for repaying the loan, methods of repayment.
- Grounds for termination of obligations under a contract due to unforeseen circumstances or force majeure.
- Condition on the possibility of making changes and amendments to the contract.
The required documents when applying for a loan are not established by law.
The parties enter into a loan agreement between themselves. The agreement is drawn up in writing, in two copies, signed and sealed by the parties. A sample loan agreement between an LLC and an individual entrepreneur can be found in specialized legal reference programs. In addition to the loan agreement, an act of acceptance and transfer of funds or property, other financial documents, additional agreements to the agreement, and a loan repayment schedule are drawn up.
The parties are also required to provide documents confirming the legal status (USRN registration certificate), details and current accounts. When transferring money, a receipt is issued with the date and signatures of the parties, or the money is transferred to a current account.
How does taxation work?
Legal entities and individuals as lenders are not subject to taxation, since the provision of the loan amount does not entail the receipt of income. The issue of taxation of the borrower remains controversial.
When an entrepreneur receives funds from a legal entity, the tax authorities may consider this a material benefit and charge personal income tax, even if the loan is interest-free.
This position is supported by some court decisions. By the ruling of the Constitutional Court of the Russian Federation dated May 11, 2012 No. 833-O, a conclusion was made about the material benefits received from savings on interest for using a loan. Such income is classified by tax authorities as non-operating income and, according to the courts, the obligation to pay tax on the income of an individual arises. (Resolutions of the Federal Antimonopoly Service of the Volga-Vyatka District dated April 10, 2013 No. A82-882/2012, Arbitration Court of Appeal dated July 1, 2014 No. A56-67702/2013).
The Russian Ministry of Finance expressed the opposite point of view in a letter dated August 27, 2014 No. 03-11-11/42697. The document states that entrepreneurs do not receive material benefits from interest-free loans and no tax is paid. However, the Federal Tax Service believes that entrepreneurs who are on the simplified tax system, UTII, PSN or common system taxation benefit in the form of saved interest and require payment of personal income tax in the amount of 35%. The amount of interest saved is calculated at the minimum interest rate established by the Central Bank of the Russian Federation; in 2017 it is 9%. The LLC, as a lender, does not pay taxes, since it does not have any material benefit in the form of interest.
In the case where the lender is an individual entrepreneur and the borrower is a legal entity, the benefit of the LLC is not counted towards the company’s income for further taxation. According to ch. 25 of the Tax Code of the Russian Federation, material benefit is not considered income.
Therefore, the LLC does not have taxable income in this case. The loan funds can become income if the individual entrepreneur forgives the company’s debt.
If the loan is provided between interdependent persons, then. Here you should pay attention to whether the transaction is controlled. If the total annual income from transactions between related parties is more than 60 million rubles, then all transactions are considered controlled. In this case, when providing a loan from an LLC to an entrepreneur applying a simplified taxation system, the LLC must increase its profit by the amount of interest not received. The amount of interest is calculated by analogy with similar loans that were provided by the company to independent persons. For uncontrolled transactions, the LLC does not have an obligation to pay tax. From January 1, 2017, interest-free loans between related parties registered in the Russian Federation do not qualify as controlled transactions.
Relief from tax consequences
The obligation to pay tax, according to court decisions and the position of the Federal Tax Service, arises with the individual entrepreneur who received the loan. An entrepreneur needs to take measures to avoid penalties from the tax authorities. Therefore, if, when issuing a loan, a legal entity did not accrue and pay interest for the loan recipient, such responsibility remains with the entrepreneur. No later than April 30 next year it is necessary to submit a declaration to the Federal Tax Service and pay the tax. In this case, there is no exemption from personal income tax for entrepreneurs. When issuing a loan by an entrepreneur legal entity There are no grounds for taxation.
If the borrower wants to get rid of personal income tax, then the terms of the loan can be reconsidered and interest charged.
In this case, the loan becomes interest-bearing and the lender is obliged to pay income tax on it, and the borrower, accordingly, pays interest to the lender. In any case, it will not be possible to completely avoid taxation when taking out an interest-free loan.
How to get a loan without interest?
An interest-free loan between an individual entrepreneur and an LLC is issued in writing. The agreement is concluded in two copies, one for each party. The agreement is considered to come into force at the moment of transfer of money. If the agreement does not specify a repayment period, the lender has the right to send a claim to the borrower. After receiving the claim, the borrower is obliged to return the money within a month.
The debt amount can be repaid ahead of schedule; the lender does not receive interest income, so it is beneficial for him to quickly repay the obligation.
After the loan is repaid, the borrower remains obligated to pay tax to the individual entrepreneur; until the tax obligation is repaid, the legal relationship is not considered completed.
The nuances of drawing up a contract are as follows:
- The condition that the loan is interest-free must be specified. Otherwise, the inspection authorities will by default consider the loan agreement to include interest and charge tax on the benefit received.
- The contract must contain exact specifications loan – date of issue, amount, currency of the loan, payment period, purpose of receiving the loan.
- The responsibility of the parties is indicated. These may include penalties for late returns, actions of the parties in the event of claims, and the procedure for resolving a dispute. Affiliates can do without this clause.
A sample agreement can be found in any legal reference system. The form of the agreement is not approved by law. Therefore, it is possible to draw up a contract in any form. You can use the existing sample and insert your details into it. It is important that the basic content requirements outlined above are met. The agreement must list the following points: names of the parties, subject of the loan, rights of the parties, obligations of the parties, liability in case of violation of the terms of the agreement, procedure for repaying the debt, actions in case of disputes, details and signatures of the parties.
Penalties for violations
If violations are detected when checking interest-free loan agreements in an organization or an entrepreneur, the tax service assesses additional taxes and imposes a fine. If the loan agreement does not stipulate that it is interest-free, then the tax inspector has the right to oblige the lender to pay additional tax on interest. Interest is calculated according to the refinancing rate of the Central Bank of the Russian Federation. As of June 2017, the interest rate on loans was 9%.
The tax agent when issuing a loan to an individual entrepreneur is the lender.
He is obliged to calculate and pay personal income tax at the rate of 35% of the amount of interest saved. If the lender does not have the opportunity to collect tax from the borrower and pay it to the Federal Tax Service, then he needs to send it to the territorial tax office and a letter to the borrower notifying about the occurrence of material benefits. This is provided for in paragraphs. 2 p. 3 art. 24, ab. 2 pp. 2 p. 2 art. 212 and paragraphs 1–7 of Art. 226 of the Tax Code of the Russian Federation. When checking, the Federal Tax Service will not have any claims against the lender in this case. The responsibility to pay the tax will shift to the borrower. If the notification is not sent, the tax office may impose a legal penalty on the legal entity. person a fine of 20% of the uncollected amount Art. 122 of the Tax Code of the Russian Federation. If the entrepreneur does not pay the tax, the penalties will be the same - 20% of the unpaid tax amount.