In the article, we will consider how to draw up a loan to a legal entity from a physical person, features of the procedure and nuances. Any company manager understands well that business requires constant development. Often this requires third-party investments, since rapid growth only at the expense of profit is usually impossible.
The most common option for attracting additional finance is bank loans. However, obtaining a bank loan and obtaining it is not always easy, especially for young organizations. In such cases, legal entities need to borrow funds from other organizations and individuals.
Features of the transaction
In the vast majority of cases, in transactions involving a loan to a legal entity from a physical person, the lender is the owner of the business or persons affiliated with him.
Most often, these options for attracting finance are used by young companies just starting out. The law does not prohibit the issuance of loans to companies by any person. They can be issued by the founders of the organization, employees, outsiders.
But practice shows that business loans are provided precisely by the owners of organizations using their own savings. Such a deal must be executed on paper. In electronic form, documentation can only be compiled using qualified electronic signatures by both parties.
It is worth noting that a simple receipt for a loan to a legal entity from a physical person will not be enough. She will not have the strength of the contract, but only confirm the fact of the transfer of funds. If you need to go to court, the lender will not be able to prove anything.
A loan can be issued in cash and in things, however, the latter option is used very rarely, as it is difficult to process a return and may have consequences for a legal entity.
The maximum loan amount to a legal entity from physical legislation is not specified. But in some cases, the head of the organization has to obtain approval for the transaction from each owner. This is necessary only if such a situation is reflected in the charter of the organization.
Legislative regulation
The concept and conditions of a loan by an individual to a legal entity are reflected in the Civil Code of Russia. It also describes the main parameters, taking into account which transactions should be concluded. In addition, a reservation was made in the Civil Code of the Russian Federation that a contract should be entered into when such a transaction was completed, and the use of a receipt is not possible.
The borrower and the lender must take into account the provisions of the Tax Code. It is not always possible to manage completely without paying taxes. In addition, each inspection takes a different position on this issue.
Key Provisions
When concluding a loan agreement with an individual, the parties should understand that it is the most important document governing all their relations: issuance, servicing, repayment.
The following data must be reflected in the contract:
- Details of each party to the agreement: name, full name, bank account details, passport data, addresses.
- The borrower assumes obligations related to the repayment of the debt, the loan term, if it is not unlimited.
- Goals. Objectives are indicated if the funding is targeted.
- Availability of interest, interest rate. If there is no interest, it should be reflected that the loan is interest-free.
- Additional characteristics and terms of the transaction. For example, the fact that the borrower agrees to provide security for the contract.
- Responsibility of the recipient of funds.
The more details of the transaction will be set forth in a written agreement, the less questions will arise in the future for each of the parties. In the absence of a loan term for a legal entity from a physical person, it is considered to be unlimited. In this case, you will have to return the debt within 30 days from the time of the call for return.
The contract also allows a direct indication of the perpetual nature of the agreement. In this case, it should be understood that the tax office treats this ambiguously. In case of prolonged non-repayment of such a loan, income tax may be assessed.
Loan from an individual to a legal entity: requirements
Most of the requirements always depend on the specific lender. It is for him to decide who he is willing to lend money on, under what conditions.
However, there are certain mandatory requirements if the borrower is a legal entity:
- The organization must have state registration.
- The activities of the organization at the time of execution of the contract should not be suspended.
- Availability of permission to complete the transaction from all owners (if this is required by the charter).
- Bankruptcy proceedings should not be open to the organization.
Some lenders set minimum terms of business, require profit and no loss. They have such a right.
Samples of contracts
Legal approach to the execution of a loan agreement of an individual with all responsibility. Its content will directly affect all terms of the transaction. In addition, tax authorities may require it. It can significantly affect the calculation of taxes, both for the lender and the borrower.
Contracts are very diverse. They may provide for the payment of interest for the use of money or not, they may be secured by a guarantee, a pledge or not, have a targeted or non-targeted nature.
All these points should be taken into account in advance when drawing up a written agreement, since in the future it is not always possible to make changes.
A sample legal entity loan agreement is presented below.
Interest-free type contracts
For a long time, interest-free loans have been the main method of obtaining finance from the founders to replenish working capital, business expenses of the company.
If the need arose, the founder received his own funds back, not a single party at the same time incurred additional costs. But the tax inspectorates changed their minds, and some organizations received additional income tax, which they supposedly received, saving on interest.
Courts, on the contrary, took the side of the borrower, recognizing such acts as invalid. Therefore, it is better to clarify such points in advance by contacting the IFTS service organization.
It is worth noting that the interest-free loan agreement should contain a direct indication that there is no interest on the loan. If such data are not indicated, the recipient should pay them monthly, based on the key rates of the Central Bank of the Russian Federation.
By issuing an interest-free loan, the lender does not receive profit in the form of accrued interest. In addition, a transaction of this nature allows the repayment of debt at any time, regardless of the date specified in the agreement.
The rest of the agreement on the provision of an interest-free loan may include the same conditions, including information on penalties, as other similar agreements.
Interest type contracts
If the contract provides for the payment of a certain fee to the lender for the use of borrowed funds, it is called interest.
The rates are agreed by the parties during the negotiations, may reflect the accrued interest for the day, month, year of use of the money (the accrual period can be any).
In addition, it is allowed to designate the specific amount that the recipient of the funds will have to pay the lender for the entire period or part thereof. Similar contract options are used more often than others if the business attracts money from private investors or employees.
The text of the contract must necessarily stipulate rates or specific amounts of remuneration, the procedure in accordance with which interest will be calculated and paid.
In the case when the loan agreement does not contain an indication of the interest rate, interest should be calculated based on the key rate of the Central Bank. In this case, the lender should pay them every month, regardless of how long the repayment period is indicated.
Target loans
In the vast majority of cases, the agreements do not specify the purposes for which the loan is granted. But in some situations, for example, if the organization has many owners, the borrower wants to give out funds exclusively for a specific purpose and to control the use of money. In such cases, a target loan agreement should be entered into.
At the request of the lender, the organization will have to provide him with documentation confirming the expenditure of money for the purpose specified in the agreement. In case of violation of the conditions for targeted spending of money, the person who issued the loan has the right to demand the immediate return of the debt and interest that were actually accrued.
Secured Agreements
In some cases, lenders wish to have a guarantee that the funds will be repaid, in particular when the loan is quite large. In such cases, the contract must be secured by pledge or surety.
Collateral is more preferable for the lender, especially if the recipient of the funds has liquid assets. The agreement must indicate that it is secured by the property of the recipient, and which one. In addition, a pledge agreement is required.
List of documents
Any operations related to money must be fixed by paper or electronic agreement. A lender who is an individual will only have to provide a passport.
The borrowing entity will be required to provide:
- A copy of the order in accordance with which the head is appointed.
- A copy of the charter.
- Copies of OGRN and TIN.
- Power of attorney, if the agreement is not signed by the head.
In some cases, lenders require additionally to provide:
- Collateral documents (if the contract is secured by a pledge).
- Organization development strategy or business plan.
- Balance sheet or report, which will reflect the profits and losses of the organization.
What else involves a loan agreement between a legal entity and an individual?
Return Dates
The parties are given the right to independently establish the terms for the return of money. There is also the possibility of concluding a perpetual contract.
When concluding the latter, the borrower is obligated to repay the loan no later than 30 days from the receipt of a written request for the repayment of the debt from the lender.
In practice, agreements concluded for more than three years and confirming the issuance of a large amount cause tax authorities to suspect. In such cases, the operation can be equated with gratuitous assistance, as a result of which the income tax of the recipient of funds will be charged additionally.
This situation can be avoided by renewing the contract after a certain period of time, or by stipulating in the contract the possibility of its extension. What threatens a citizen who has granted a loan to a legal entity?
Risks of the Parties
A citizen who has issued a loan to a legal entity may be at risk of non-return of funds. In the case when it comes to an organization in which one person acts as the director and founder, non-refund can only occur due to loss of business. The recipient will be guilty of this.
In other cases, this risk can be minimized by issuing a security agreement in the form of a guarantee or pledge.
The borrower in this case risks the loss of property that was mortgaged under the contract, or as a result of litigation. In this regard, the payer of funds is recommended to carefully calculate the risks before concluding the agreement.
In addition, each party to the agreement has tax risks that depend on the nature of the loan and other terms of the contract.
Tax consequences of a loan agreement
If it is interest, then the person issuing the funds receives interest income. From this remuneration, an individual will have to pay 13% in the form of personal income tax.
In the case when the lender is an employee of the organization that has received a loan from him, the accounting department of the company can make tax payments and provide the necessary documentation to him. Otherwise, the lender will have to do it yourself.
The borrower paying interest may, in turn, take them into account as expenses, thereby reducing the tax base. In the absence of interest, tax authorities take into account the savings resulting from non-payment of interest, and take it as a profit that can increase the tax base.
Thus, the loan of money of a legal entity (LLC) from an individual is a widespread phenomenon in the economic activities of Russian organizations. Often, such loans are the only way to attract money to the business.