An interest-free loan is a common phenomenon among business entities. Until recently, the attitude of the tax authorities to this issue was unequivocal: the lender is required to pay income tax. Therefore, any redistribution of funds within the holding became risky. But the decision of the higher courts made positive adjustments.
Essence
Organizations often need additional funding. For enterprises of one holding, this problem is solved by providing a loan. Such transactions are used as part of financial planning. Lenders provide funds at no cost. But the recipient is threatened with such a transaction by the collection of income tax (NPP).
Classic design
Companies create a legal entity, conclude several agreements with it. This enables the company to quickly begin production activities. After receiving the proceeds, the organization accepts the “input” VAT. So the problem of determining the sources of tax payment is solved, cash gaps are easily covered. In the control unit, the transaction is executed as a loan, and in the control unit 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 needy party. The debtor undertakes to return the amount at the indicated time. So the parties enter into legal relations.
The terms of the transaction are determined by the contract. It begins to act from the moment of transfer of the object (amount of funds, Central Bank, bills, etc.). According to Art. 809 of the Civil Code of the Russian Federation, the transaction automatically becomes interest-free if the object is things.
Requisites
The contract must specify the following items:
- time and place of his imprisonment;
- parties to the transaction (full name of the company, initials of the founders);
- subject - interest-free loan;
- terms of issue and method of returning funds (most often they use a scheme with monthly payments);
- sanctions in case of delayed 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 correctness of paperwork and all details. The presence of a notary public at the conclusion of the transaction is welcome. If the loan is provided in foreign currency, the exchange rate must be observed. If the contract does not specify the period for the return of funds, then it shall be calculated within 30 days from the date of the request.
Features
A loan agreement between legal entities (interest-free) can be repaid ahead of schedule. These operations are not reflected in the profitability of the transaction: a commission is still not charged. Therefore, the lender is primarily interested in such a scheme. But even after paying the debt, the relationships of the participants do not end. They have to pay the fees. Let us consider in more detail the tax consequences of an interest-free loan between legal entities.
According to the Federal Tax Service, borrowed relations can be qualified as the provision of financial services. But they are not charged. The tax authorities classify interest - free loans as non-operating income in the form of property rights or services (Article 250 of the Tax Code). Assessment of economic benefits is carried out at the Central Bank refinancing rate on the day when the interest-free loan is repaid.
Accounting
Tax consequences depend on the form of ownership of the parties to the transaction.
A legal entity that has received a certain amount from a creditor can then invest it in production. Then these funds will not be included in the tax base. The company is not required to pay taxes.
If the lender and the borrower are individuals, then we are not talking about paying fees. The receipt of interest-free loans from legal entities is accompanied by the payment of personal income tax - 35% of the 75% of the current refinancing rate.
To get rid of the claims of the Federal Tax Service, you need to prove that a loan is not a service, the results of which will be used in activities.
Requirements
Legal entities may act as borrowers who:
- have official permission to enter into transactions;
- undertake to use the accepted funds for the purposes specified by the contract.
A creditor may be an enterprise, which, according to the charter and law, is not prohibited from providing funds on credit. All that is required of him is ownership of the object. The subject of the loan is transferred to full disposal, but for a while.
Return
The time to repay the debt is not limited by law. This period is agreed by the lender and the borrower and usually depends on the solvency of the second party to the transaction. The lender may require an additional guarantee: pledge of property, surety of the shareholder or manager. Payout - this is the full amount credited to the creditor's account. In case of arrears during the month (sometimes a quarter), the lender can go to court.
NK VS GK
The interpretation of the interest-free loan in the Tax and Civil Codes differs in such parameters:
- In civil law, a loan and service agreement are two different documents that cannot be compared. Moreover, the transfer of funds for use was repeatedly considered by the courts as the provision of property.
- A service is an activity whose results do not have material expression. The provision of funds is not such. In addition, money is used after receipt.
- The service is recognized as gratuitous if the recipient is not required to transfer the property to the creditor. But the loan agreement always provides for the return of values.
Material benefit
There are many questions about the consequences of an interest-free loan. Taxation of NPP taxation 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 of the fee. The Federal Tax Service is trying to apply this rule to NPP. The tax consequences of an interest-free loan between legal entities in the form of fines are usually disputed by lawsuits.
Arbitrage practice
Despite the fact that most of the claims on this issue were decided in favor of taxpayers, the number of claims from the Federal Tax Service did not decrease for a long time. The situation changed when the Supreme Arbitration Court of the Russian Federation issued a resolution stating that the Tax Code does not consider the benefits of savings for the use of borrowed funds as a basis for calculating NPP. Such operations are not recognized as a service for the purpose of calculating VAT, and funds under a loan agreement are not received free of charge. Therefore, the negative consequences of providing an interest-free loan are minimized.
The risks
A detailed review requires operations in which the funds received under a loan agreement are used in order to arrange an interest-free loan between legal entities. The tax consequences in such transactions are more serious.
Expenses that reduce the base for calculating NPP are recognized as all costs incurred in the implementation of activities aimed at making a profit. That is, when accounting for expenses on interest payments on loan agreements, it is necessary 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. An entity cannot account for interest on loans in non-operating expenses. That is, the tax consequences of an interest-free loan between legal entities are to dispute such transactions by the Federal Tax Service in court.
Issuance of funds IP
Under the terms of the contract, the borrower receives some things or money and agrees to return them after the expiration 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 business activities. You can provide a document confirming that the lender transferred under the contract the funds that he received, for example, from the sale of property.
- 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 the minimum rate for the use of funds is ascribed to the document. You can conclude an additional agreement and write in it that by the time the money is returned, the borrower will have to pay, for example, 1% per annum.
Consequences of non-return
The lender has the right to demand a refund through the court within three years from the day following the return date specified in the contract. If the loan term is 5 years, then the lawsuit can last up to 8 years. Only after this period, you can write off accounts payable and include its size in the base for calculating NPP.
If the borrower sends letters to the creditor with readiness to repay the debt every 3 years following the day of the expiration of the term, then the limitation period will never expire.
In order not to take into account the amount of non-returned funds as part of taxable income, you need:
- set a maximum loan repayment period;
- after its occurrence and after 2 years and 11 months, send a letter of recognition of the debt to the lender by mail with a notification of delivery.