The issuance of a loan to the founder of the LLC from the organization today is quite acceptable. Many of the provisions of the Civil Code of the Russian Federation, which govern the procedure for concluding an agreement, apply to such a transaction. Consider this topic in more detail.
Basic concepts - why you may need to arrange a loan of this kind?
A loan to the founder from an LLC involves the conclusion of a special agreement, on the basis of which the company transfers funds to a member of the organization for a certain period of time, which is charged with the obligation to return them with or without interest.
The conclusion of such transactions is governed by the following regulations:
- Federal Law "On LLC" dated 02.08.1998 No. 14.
- Chapter 42 of the Civil Code (paragraph 1).
- The tax code, which defines the taxation procedure for financial assets transferred under the contract.
It should be noted that the loan to the founder can be provided not only to LLC, but also to organizations of other legal forms, for example, PJSC, etc. Property can also be transferred, but not any, but only that which is united by common tribal characteristics, for example, computers, bricks, etc.
New rules on consensual agreement
The transaction to provide a loan to the founder from the LLC is considered real, that is, the agreement is concluded from the date of receipt. It is important to note that since 2018, some new rules have been introduced, according to which, in cases where a loan is provided by an organization, the contract is considered consensual, and not real, that is, it acts immediately from the moment of signing. In this case, even if the money was not transferred, the borrower, if available, has the right to demand the issuance of funds from the LLC.
As a rule, a loan from the LLC to the founder can be issued in the case when the company has the necessary funds and all of its members voted in favor of allocating such funds in order to provide the founder with a loan. However, some apply the legal mechanism under review in order to withdraw finances from the LLC, that is, to cash them out.
Form of contract and procedure for completing this document
In this case, the lender for the transaction is the organization, and the recipient of the loan is the individual, founder or member of the company. He, in addition, may be a legal entity acting as a participant in the LLC. In these cases, a written agreement is required in accordance with Art. 808 of the Civil Code of the Russian Federation. If the form of the transaction is not respected, contradictions arise regarding its execution, it will be necessary to prove the fact of its conclusion. Moreover, it will not be possible to refer to the testimonies of witnesses by virtue of the requirements of Art. 162 of the Civil Code of the Russian Federation.
Founder's share - this must be taken into account
Another important feature that it is important to pay attention to if the LLC gives a loan to the founder is its share in the organization. If it is more than ½ part, then by virtue of the current legislation this participant is recognized as a controlling person. An agreement with him is an interested party transaction. Such a variety of transactions characterizes the peculiarity expressed in the fact that 14 days before the conclusion of the contract it is necessary to notify the remaining participants of the LLC about this. In this case, a simple notification is sufficient, since consent to the transaction from other participants should not be obtained.
Sample Agreement
An example of an interest-free loan of an LLC founder is often searched online. We also provide it in our article to familiarize the reader with this form.
Essential terms of the contract
When making any transaction, the essential conditions are circumstances that must be agreed upon. In accordance with paragraph 1 of Art. 432 of the Civil Code of the Russian Federation under the agreement, only its subject is agreed upon, direct disbursement of funds from the borrower to the founder. Based on this, in order for these conditions to be agreed, it is necessary:
- Specify how much money should be transferred.
- Indicate that finances are refundable within a certain period of time.
This agreement can be both gratuitous and onerous. In this case, the condition on the amount of interest is specified in the agreement or not specified at all. If this condition is not specified, then in accordance with paragraph 1 of Art. 809 of the Civil Code of the Russian Federation, interest is determined by the sum of the key rate of the Central Bank of the Russian Federation.
If it is assumed that the loan to the founder of the LLC will be gratuitous, the borrower is not required to pay interest on this transaction. This circumstance must be indicated in the loan agreement. Otherwise, this loan may be deemed repayable with all the consequences, for example, in the form of a participant's obligation to pay interest on the use of funds.
It is very important to take into account that some changes were introduced by federal law to the procedure for determining the amount of interest for such an agreement. Their total size, therefore, cannot be more than twice the size of the total loan amount. Otherwise, the court will reduce it if, for example, a dispute arises between the parties.
Rules and procedure for the transfer of funds under the contract
A loan can be issued to the founder of an LLC in various ways, since its parties to this agreement are the organization and its founder (participant).
Firstly, there is the possibility of issuing a loan to the founder in cash, but this will require a cash transaction. In this case, it will be necessary to fill out a cash receipt and expense order (form KO-1). By virtue of the requirements of the law, funds are issued under cash settlement services only in that situation if they are received at the cash desk from the current account.
The second option is to provide the founder with a loan through bank transfer of funds. To do this, it will be necessary to draw up an appropriate payment order, the form of which is determined by certain provisions approved by the Central Bank.
In both of the above situations, an indication of the details of the concluded agreement is required, according to which finances are transferred. In addition, it must be indicated that the funds are repayable. All this is necessary so that in the event of a dispute the court does not recognize the operation that is not related to the loan transaction.
Taxes and interest
The amount of tax liabilities of the organization that provides the loan to the founder depends on whether the contract is onerous or not. In the case of an interest-bearing loan to the founder from the LLC, the organization receives the income regulated by this agreement. Accordingly, LLC must pay income tax on these incomes (according to the usual taxation system). If the institution is on a simplified taxation system or any other form thereof, then the amount of income should still be paid, since it forms the tax base.
In cases when the founder of the LLC receives an interest-free loan, this organization does not receive income, therefore, it is not obliged to pay any tax payments
The founder of the LLC, which in this case acts as a borrower, with an interest-free nature of lending, will have to pay 35% of the income received from savings on interest. In addition, such a tax should be paid if the loan is interest-bearing, but the amount of such interest is less than 2/3 of the Central Bank refinancing rate. These findings follow from information obtained from the Tax Code of the Russian Federation. In this regard, the founder of the LLC needs to carefully consider how convenient it is for him to stipulate the conditions for an interest-free loan of the founder from the LLC.
When forgiving the debt, the borrower receives a certain income, so he will be obliged to pay income tax in the amount appropriate to the legislation. In order to avoid paying such a tax, it is possible to conclude some additional agreements, on the basis of which the terms will be extended.
The nuances to be specified
When a founder receives a loan from an LLC, a special contract is drawn up, in which the following data must be indicated:
- Description and parameters of the loan.
- The size of it. The main nuance is that it is almost unlimited: some can give the founder of an LLC up to 1 million rubles.
- Loan repayment term by the founder of LLC. Since the size of the loan is usually quite large, the debt is paid off over several years.
- The procedure for calculating interest. In most cases, the founders try to get an interest-free loan from the organization, however, these cases are fraught with the fact that the borrowing organization will eventually pay large taxes. Therefore, it is more profitable for a company to pay a purely symbolic percentage for the use of credit funds.
- Loan objectives. The founder must specify the purpose for which he receives a loan (for example, to purchase a car, real estate, land, etc.).
- Repayment order. The repayment of funds is permitted as a single amount at the end of the lending time or through several payments.
A sample loan from the founder of the LLC is presented above.
Founder Requirements
Under this form of lending, the following requirements are imposed on borrowers:
- Age. The founder at the time of the loan must be 18 years old.
- Citizenship. Only a Russian citizen can get a loan from a Russian LLC.
- Establishment term in LLC. The borrower must be a founder in the lender for at least 5 years.
- Passport availability. This document is needed to identify the person and verify his data.
The founder of an LLC, which receives a loan, should not only indicate the purposes for which a loan is needed, but also report on the use of funds in the future (provide documentation on the purchase of goods). In this case, the type of document submitted depends on what exactly the money was taken for.
We hope that this article has been useful to readers and answered all their questions.