Dear readers! The article talks about typical ways to solve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:
APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and 7 days a week.
It's fast and IS FREE!
A person does not always have enough own funds, and he is forced to borrow them for large purchases, payment for treatment or education, and sometimes simply for urgent needs.
But recently, more and more often, not banks, but other legal entities act as lenders.
Moreover, not only professional players in the financial market, for example, IFC, but also any other firms can act as a lender. Often an employer lends to employees or founders, etc.
The nuances of the deal
Russian legislation does not prohibit the provision of a loan to an individual from a legal entity.
Moreover, registration of an enterprise as a microfinance or microcredit company is not required at all for one-time loan transactions.
A transaction between an individual and a legal entity must be recorded on paper. To do this, the parties must enter into an agreement. Simple in this option is indispensable.
It will only confirm the transfer of money or things to the borrower, but not directly replace the contract.
Percentage type
In the classical form, loans provide for the payment of remuneration to the lender for the use of his funds.
The amount of remuneration can be set in the form of interest accrued for each day/week/month/year of loan use, or indicated by a specific amount.
The specific option for determining the remuneration is determined by the parties independently. In addition to interest, one-time fees may apply.
Their size must also be fixed in the agreement, since the law does not allow the creditor to change them on his own.
If the agreement omits information about interest and there is no specific indication that the transaction is free of charge, then interest should be accrued at the key rate set by the Central Bank of the Russian Federation.
The parties independently agree and indicate in the agreement the procedure for paying interest. The regularity, amount and composition of each payment will depend on this.
The most common options for payment schedules are:
An interest-bearing loan agreement, if it provides for more than 1 payment, must be accompanied by a debt repayment schedule. This will allow the parties to accurately fix the procedure for paying the debt.
List of required documents
The package of documents required to complete the transaction will depend on the chosen lender.
Most microfinance companies and employers do not need at all.
The employer company already knows quite enough about the employee’s salary, and microfinance companies simply take people’s word for it and do not require any confirmation of income or employment, although there are sometimes exceptions to this rule.
The obligatory document of the borrower - an individual, required when applying for a loan, is a passport of a citizen of Russia.
Without it, the deal just won't work. Many creditors are additionally asked to submit one more additional document.
As a second document, you can submit:
- International passport.
- Driver's license.
- Military ID.
- SNILS.
Similar documents will be required from guarantors if they are involved in the transaction.
If there is a pledge on the loan, it is necessary to submit all documents of title to the pledged property. For example, for a car, this would be a passport vehicle and a vehicle registration certificate.
Advice. Some lenders offer to formalize the alienation of property with the right to repurchase. It should be understood that such transactions are very risky, and often the borrower will never be able to return the property.
You can download an example of a loan agreement for an individual from an organization.
Key points
The loan agreement can be drawn up in paper or electronic form. It must contain the details of the borrower and the lender.
At the same time, it is allowed to use analogues of a handwritten signature when concluding an agreement.
Consider the main points that must be considered when concluding a loan agreement:
All changes and additions to the contract must be signed by both parties. Oral agreements will have no legal force.
One of the main annexes to the loan agreement is the payment schedule, which is usually an integral part of the loan agreement itself.
The parties have the right to introduce into the contract any conditions that do not contradict the legislation in force in Russia.
By law, a loan, unlike a loan, can be repaid ahead of schedule only with the consent of the lender. Exceptions are interest-free loans and microcredits from various MFCs.
In the absence of interest, you can repay the debt at any time before the end of the contract.
If the agreement is concluded with the IFC, then for early repayment with recalculation of interest, it is enough to notify the organization in writing 10 days in advance of your intentions.
Return period
Usually, the term for the repayment of a cash loan is prescribed by the parties explicitly, indicating a specific date by which the funds must be received by the lender. But this is not the only option for possible returns.
If the contract does not specify a term at all, then the borrower will automatically be obliged to pay only interest on the contract every month, and the principal amount must be repaid within 30 days after receiving the demand from the lender.
Responsibility for violation of the terms of the agreement
The loan agreement necessarily prescribes the consequences that await the borrower in case of late payment of the debt. It is better not to allow delays, as this can lead to an unpleasant situation.
Consider what consequences a borrower can expect if a loan is delayed or not repaid:
- early withdrawal of the loan by the lender in full;
- calculation of penalties;
- recovery from existing collateral;
- appeal of the creditor to the court and forced collection of debt;
- damaged credit history (if the loan was issued by the IFC).
If the borrower has made a delay under the loan agreement, the lender may send him a demand for the immediate return of the entire amount of the debt.
In this case, he will be obliged to pay interest based on the actual period of use of the money.
Typically, the contract provides for the accrual of fines and penalties for each day of delay. They can be used even in the case of an interest-free loan and sometimes reach enormous proportions.
According to the court, the debt can be collected at the expense of the debtor's funds and property, as well as guarantors, if any. When a certain property is pledged, it will be levied on it.
The credit history today reflects information on all loans received from microfinance companies.
Delays will negatively affect the borrower and may lead to refusals for further applications.
Taxation and transaction risks
The organization makes a profit from the interest that the borrower pays under the loan agreement. From this amount, the company will need to pay all taxes established by law, for example, income tax or a single tax under the simplified tax system.
In the case of interest-free loans, tax specialists come to the conclusion that the borrower makes a profit by saving on interest.
On this amount, he will have to pay personal income tax. If this is not done, then he will have serious problems with the tax office.
The main risk for the lender is the probable non-repayment of funds. That is why specialized financial institutions usually issue loans, while simple enterprises issue loans only to employees or founders.
The borrower must also understand that he has certain risks. If he cannot pay off the debt in a timely manner due to force majeure and fails to agree with the creditor, then he may lose the pledge, if any, or any other property if the creditor decides to collect debts through the court.
An individual issued an interest-bearing loan (Loan-1) to a legal entity (Company). The amount is 20 million rubles. Term - 2 years. Interest is charged at a rate of 15% per annum on the actual balance of the debt. The Company repays the principal debt to an individual in several tranches. Payment by the Company to an individual of the accrued interest is made after the full repayment of the principal debt.
Question 1 :
Is the issuance of Loan-1 an entrepreneurial activity for an individual? If yes, then is the return by the Company to an individual of the principal debt in a single tranche and a lump-sum payment of accrued interest considered as an entrepreneurial activity?
Answer :
As follows from paragraph 1 of Art. 23 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), a citizen has the right to engage in entrepreneurial activities without forming a legal entity from the moment of state registration as an individual entrepreneur.
In accordance with paragraph 1 of Art. 2 of the Civil Code of the Russian Federation, entrepreneurial activity is an independent activity carried out at one's own risk, aimed at systematic profit from the use of property, the sale of goods, the performance of work or the provision of services by persons registered in this capacity in statutory okay.
However, there are no clear criteria in the Civil Code of the Russian Federation on how to determine that a particular type of activity of an individual is systematic, and, as a result, leads to the obligation to register as an individual entrepreneur. Moreover, the legislation does not disclose the concept of "systematic".
Thus, in order to talk about the belonging of the received income to entrepreneurial activity, it is necessary to prove the very fact of the existence of such activity.
As we understand from the description of the situation, an individual is not registered as an individual entrepreneur and the issuance of a loan to the Company is of a one-time nature.
Under such circumstances, in our opinion, it is quite difficult to qualify the receipt of interest on loan-1 as income from entrepreneurial activity, since a single operation to provide a loan cannot be called a systematic activity.
The Letter of the Ministry of Finance of the Russian Federation of December 28, 2012 No. 03-04-05 / 10-1454 states the following:
“The presence of signs of entrepreneurial activity in the actions of a citizen is evidenced, in particular, by the following facts:
- production or acquisition of property for the purpose of subsequent profit from its use or sale;
- accounting of business transactions related to the implementation of transactions;
- the interconnectedness of all transactions made by a citizen in a certain period of time;
- stable ties with sellers, buyers, other contractors.
In paragraph 13 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of October 24, 2006 No. 18 “On some issues that arise with the courts when applying the Special Part of the Code Russian Federation on Administrative Violations" states that:
"Individual cases of rendering services by a person who is not registered as an individual entrepreneur do not constitute an administrative offense, provided that the volume of services provided and other circumstances do not indicate that this activity was aimed at systematic profit making.
Judicial practice shows that arbitrators proceed from the actual circumstances of the cases under consideration and the availability of indisputable evidence of entrepreneurial activity. There are decisions both in favor of individuals and in favor of the tax authorities.
Thus, in our opinion, the issuance of a single loan cannot be qualified as entrepreneurial activity, and, accordingly, income in the form of interest received will not be income from entrepreneurial activity.
Are you an accountant, but the director does not appreciate you? Thinks you're just wasting his money and overpaying taxes?
Become a valuable specialist in the eyes of management. Learn to work with accounts receivable.
The Clerk Training Center has a new one.
Training is completely remote, we issue a certificate.
If an individual issues microloans
Andrey Paranich, director of SRO NP MiR, answers questions from journalist Yulia Zibert about the nuances of microfinance activities, in particular, about the situation when an individual is engaged in issuing loans, with the extraction of profit from this process.
There are projects on the network where individuals provide loans to each other. As far as I understand, some do it on an ongoing basis. Someone only once offered their services as a lender. Do such individuals have to register an MFI or are their activities not subject to the requirements of the law on microfinance?
Indeed, today there are several Internet sites that enable individuals to lend to each other. Indeed, at first glance, such a scheme relieves all participants in the process from responsibility. Lending to one individual another is not subject to consumer lending law: a professional lender can be a company or individual entrepreneur, but not an individual. However, according to the norms of Russian law, systematic activity for the purpose of making a profit is an entrepreneurial activity that requires registration. Consequently, a citizen who regularly lends to other citizens violates the law on entrepreneurial activity, for which he can be fined.
Thus, lending money to friends, acquaintances or colleagues is not prohibited, but the systematic activity of issuing loans is an entrepreneurial activity. Consequently, having put loans "on stream", a citizen is faced with the need to register as an entrepreneur, which in turn makes him a professional lender obliged to comply with all the provisions of the law "On Consumer Lending".
It is worth mentioning that p2p lending platforms often choose a different form of work. Formally, the loan is issued by the MFO, which then assigns the debt to an individual under an assignment agreement. Thus, the individual becomes the buyer of the loan, not the lender. This form of work also does not allow to comply with all the requirements of the law "On Consumer Credit", in particular, the provision on the mandatory transfer of data to the CBI. Suppose that such an MFI issued a loan to a citizen and, in accordance with the law, transferred information about the loan to the BKI. Then the MFI ceded the loan to the real lender - an individual who had already received the loan body and interest from the borrower. However, an individual cannot transfer information about the repayment of a loan to the BKI - to date, the market has not developed the practice of signing relevant agreements between the BKI and individuals. Since information about the return is not transmitted to the CBI, this debt after a while goes into the category of overdue. Perhaps, over time, this issue will be resolved, but at the moment, a borrower who has received a loan under a similar scheme risks ruining his credit history.
Are there any penalties in relation to those who issue loans "in the black"? What, if yes. And can an individual issuing loans be fined? Or just IP and LLC? And who can initiate such a fine?
Penalties for the issuance of loans provided for by the law on consumer credit apply only to legal entities and individual entrepreneurs. They amount to 500 thousand rubles.
An individual lending money can be fined for conducting illegal business activities. Responsibility for illegal entrepreneurship is provided for by the Code of Administrative Offenses and the Tax Code.
If we talk about the creation of MFIs, how expensive is it, in your opinion, who can help in this matter? Do you advise beginner microfinance professionals? Where can I turn for advice on setting up an MFI and complying with the law? How much does a consultation cost?
The MFO registration process itself is not very expensive: for this, it is necessary to register a company (for example, an LLC) and submit documents to the Bank of Russia to enter the company into the Register.
But in the future, MFO owners need to ensure compliance with various laws: “On combating the legalization (laundering) of proceeds from crime and the financing of terrorism”, “On personal data”, “On microfinance activities”, “On consumer credit” ... To comply with the requirements laws and support the operation of the company, the company must have employees who perform the functions provided for by the provisions of the laws. Thus, the MFI will require regular staff costs. Accordingly, it is unprofitable to organize an MFI in order to issue three to five loans per year.
We, as an SRO, are not engaged in advising entrepreneurs and individuals who have not yet opened an MFI. Our partner, the Russian Microfinance Center, is currently consulting on this issue and assisting in the creation of MFIs.
It is not uncommon for employers to provide loans to employees for various purposes. Sometimes they issue them without paying interest. It happens that the lender is not able to repay the loan (in whole or in part). And then some leaders of the organization decide to forgive him the debt. Accounting employees, in addition to correctly reflecting such operations in accounting, will have to deal with emerging tax liabilities. And they are slightly different in each of these cases.
The relations of the parties at the conclusion of the loan agreement are regulated by Ch. 42 of the Civil Code of the Russian Federation. Under this agreement, one party (the lender) provides the property to the other party (the borrower) of 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 of other things received by him of the same kind and quality . The loan agreement is considered concluded from the moment of transfer of money or other things (clause 1 of article 807 of the Civil Code of the Russian Federation).
Loan agreement between the organization and the employee, it is desirable to draw up in writing (clause 1 of article 808 of the Civil Code of the Russian Federation), regardless of the amount transferred. It should indicate the amount of the loan, the procedure and term for repaying the debt - in parts or in full size immediately, the return form - through the cashier or in the form of a deduction from wages.
The agreement may provide for the payment of interest for the use of the loan. In this case, it is necessary to discuss their size and payment procedure - monthly, after a certain period of time, or at a time at the time of repayment of the principal debt. In the absence of a condition on the amount of interest in the agreement, their amount is determined by the bank interest rate (refinancing rate) existing at the location of the organization on the day the borrower pays the amount of the debt or its corresponding part. Unless otherwise agreed, interest is paid monthly until the day the loan amount is repaid (clauses 1 and 2 of article 809 of the Civil Code of the Russian Federation).
Civil law allows you to conclude interest-free loan agreements. But in this case, the text of the agreement must necessarily indicate the absence of the borrower's obligation to pay interest.
Thus, after receiving a loan, the borrower has an obligation to return the received loan amount to the lender on time and in the manner prescribed by the agreement (clause 1, article 810 of the Civil Code of the Russian Federation).
Accounting
For the Instruction on the Application of the Chart of Accounts for Accounting for the Financial and Economic Activities of Organizations (approved by Order of the Ministry of Finance of Russia dated October 31, 2000 N 94n) prescribes to use account 73 "Settlements with personnel on other transactions", sub-account 73-1 "Settlements on loans granted".
Issuance of a loan the employee is accompanied by the following wiring:
Debit 73-1 Credit 50 (51)
Loan funds issued (transferred).
The expenses of the organization do not take into account the amount of the loan issued (clause 3 of the Regulation on accounting"Expenses of the organization" PBU 10/99, approved. Order of the Ministry of Finance of Russia dated 05/06/1999 N 33n), in income - the amount of the loan returned (clause 3 of the Accounting Regulation "Income of the organization" PBU 9/99, approved by Order of the Ministry of Finance of Russia dated 05/06/1999 N 32n).
Interest due to the lender in accounting is recognized as other income on a monthly basis on the last day of the reporting month (unless otherwise established by the accounting policy of the organization) (clauses 7, 10.1, 16 PBU 9/99). These incomes are reflected in the credit of account 91 "Other income and expenses", subaccount 91-1 "Other income", in correspondence with the debit of the account for accounting for settlements with the borrower.
For determining interest amounts, payable under the terms of the loan agreement (PRdog), the following formula is used:
PRdog \u003d Sz x PSdog: KDg x KDpol,
where Sz - the amount of the loan (credit);
PSdog - the interest rate established in the loan (credit) agreement;
KDg - the total number of calendar days in a year;
KDpol - the number of days of using borrowed (credit) funds.
To reflect the debts of the borrower on the granted loan and accrued interest, the organization can open separate sub-accounts of the second order. When providing a loan to an employee, these may be 73-1-1 and 73-1-2.
Example 1 . On January 31, 2011, the management of the organization provided an employee who is a tax resident of the Russian Federation with a loan in the amount of 500,000 rubles. for a year at 3% per annum. Under the terms of the loan agreement, the employee returns 40,000 rubles on the last day of each month. on account of the principal debt and the balance of 60,000 rubles. - January 30, 2012. At the same time, he also pays interest for the use of borrowed funds, the accrued amount is deducted from his salary. The refinancing rate set by the Bank of Russia as of February 28 is 7.75% per annum.
On February 28, the employee returns part of the loan for the first time - 40,000 rubles. On the same day, interest calculated for that month is deducted from his salary - 1150.68 rubles. (500,000 rubles x 3% / 365 days x 28 days).
In accounting, the issuance of a loan, its partial repayment, the accrual of interest and their deduction are reflected as follows.
Debit 73-1-1 Credit 51
RUB 500,000 - Loan funds transferred to the employee's account.
Debit 73-1-2 Credit 91-1
RUB 1150.68 - accrued interest on the loan for February;
Debit 50 Credit 73-1-1
40 000 rub. - funds were deposited in the cash desk of the organization to partially repay the loan;
Debit 70 Credit 73-1-2
RUB 1150.68 - deducted from wages the amount of accrued interest on the loan for February.
The above three postings (with slightly different numerical indicators) will be repeated on the last day of each calendar month of the contract.
Under the terms of the agreement, the loan amount can be expressed in foreign currency (cu), the loan itself is provided in rubles. The recalculation of the loan amount and the amount of interest on the loan into rubles is carried out at the exchange rate of this currency, established by the Bank of Russia on the date of its issue (interest accrual), reporting dates and at the time of loan repayment (receipt of interest) (clauses 1, 5, 7 of the Regulations on accounting "Accounting for assets and liabilities, the value of which is expressed in foreign currency" (PBU 3/2006), approved by Order of the Ministry of Finance of Russia dated November 27, 2006 N 154n). Exchange differences arising from such recalculation are recognized as other expenses or other income (clauses 3, 11 - 13 PBU 3/2006, clause 11 PBU 10/99, clause 7 PBU 9/99).
Tax liabilities
Loan transactions in cash are not subject to VAT C (clause 15 clause 3 article 149 of the Tax Code of the Russian Federation). This imposes an additional obligation on the taxpayer to keep separate records of transactions subject to VAT and transactions exempt from taxation (clause 4, article 149 of the Tax Code of the Russian Federation). But since this operation is listed in paragraph 3 of Art. 149 of the Tax Code of the Russian Federation, the organization has the right to refuse its exemption by submitting an appropriate application to the tax authority at the place of registration no later than the 1st day of the tax period from which the taxpayer intends to refuse the exemption or suspend its use (clause 5 of article 149 Tax Code of the Russian Federation).
In tax accounting when determining the taxable base for income tax not taken into account:
In income - cash or other property received as repayment of a loan under a loan agreement (clause 10, clause 1, article 251 of the Tax Code of the Russian Federation);
In expenses - funds or other property transferred under a loan agreement (clause 12, article 270 of the Tax Code of the Russian Federation).
Interest under a loan agreement is accounted for by the lender as part of non-operating income (clause 6, article 250 of the Tax Code of the Russian Federation). When using the accrual method, such income from contracts, the duration of which falls on more than one reporting period, is recognized at the end of the month of the corresponding reporting period, and if the contract expires (or the loan is returned) before the end of the month, then on the date of termination of the contract (p. 6 article 271, paragraph 2, 3 paragraph 4 article 328 of the Tax Code of the Russian Federation).
As mentioned above, often under the terms of the contract, the loan amount, expressed in foreign currency (cu), is provided in rubles. In this case, due to fluctuations in the exchange rate of a foreign currency (c.u.), the amounts of interest in rubles on the date of their accrual and actual receipt may differ. Therefore, if the exchange rate rises, the accrual lender will have positive sum differences, and if the exchange rate falls, negative ones.
In non-operating income and expenses of the organization, by virtue of the norms of clause 11.1 of Art. 250 and pp. 5.1 p. 1 art. 265 of the Tax Code of the Russian Federation, it is necessary to include the amount differences that appear to the taxpayer if the amount of obligations and claims that have arisen, calculated at the rate of conventional monetary units established by agreement of the parties on the date of sale (posting) of goods (works, services), property rights, does not correspond to the actually received (paid) ) amount in rubles.
Formally, the indicated norms for sum differences arising from interest accrued on debt denominated in c.u. That is, they do not apply, since for the purposes of income tax, the provision of a loan is not a service (clause 5, article 38 of the Tax Code of the Russian Federation). Special provisions governing the accounting for such differences, in Ch. 25 of the Tax Code of the Russian Federation does not exist. Therefore, the amount of positive differences to the lender should be taken into account in other non-operating income (Article 250 of the Tax Code of the Russian Federation), and the amount of negative differences - as part of other justified expenses (clause 20, clause 1, article 265, clause 1, article 252 of the Tax Code of the Russian Federation).
The corresponding amounts are taken into account for tax purposes on the date of actual receipt Money in the payment of interest, since until that moment the lender cannot determine the amount of income or expense that has arisen.
Features in the calculation of personal income tax
The object of personal income tax for individuals who are tax residents of the Russian Federation is income received by taxpayers from sources in the Russian Federation and (or) from sources outside the Russian Federation. When determining the tax base, all incomes of the taxpayer that he received both in cash and in kind or the right to dispose of which he has arisen, as well as income in the form of material benefits, determined in accordance with Art. 212 of the Tax Code of the Russian Federation (clause 1 of article 209, clause 1 of article 210 of the Tax Code of the Russian Federation).
Consequently, material benefit from savings on interest for the use of borrowed funds is the income of an employee who must be taken into account in its tax base for personal income tax. The tax base in this case is defined as the excess of the amount of interest for the use of a ruble loan, calculated on the basis of two-thirds (2/3) of the refinancing rate of the Bank of Russia, effective on the day the taxpayer pays interest, over the amount of interest calculated on the basis of the terms of the agreement (clause 1 paragraph 2 of article 212, paragraph 3 of paragraph 1 of article 223 of the Tax Code of the Russian Federation).
Thus, taxable income in the form of material benefits from savings on interest for the use of borrowed funds denominated in rubles arises from the borrower in cases where:
The terms of the loan agreement (loan agreement) provide for the payment of interest at a rate of less than 2/3 of the refinancing rate of the Bank of Russia;
The issued loan (credit) is interest-free.
The material benefit from savings on interest for the use of borrowed (credit) funds is calculated only upon receipt of a loan (credit) in cash - in rubles or foreign currency. If the subject of the loan agreement is not money, but some other property, the material benefit from saving on interest for calculating personal income tax is not determined.
Calculation of material benefits on a ruble loan (credit), on which the borrower pays interest, based on a rate that is less than 2/3 of the refinancing rate of the Bank of Russia, for clarity, it is desirable for a tax agent to carry out in three stages.
First, the amount of interest payable in accordance with the terms of the loan (credit) agreement (PRdog, see above) is determined.
Then the amount of interest is calculated based on the rate equal to 2/3 of the refinancing rate of the Bank of Russia, effective on the date of their payment (PR2/3BR):
PR2 / 3BR \u003d Sz x PS2 / 3BR: KDg x KDpol,
where PS2/3BR is the interest rate equal to 2/3 of the refinancing rate of the Bank of Russia effective on the interest payment date.
The difference between the amounts of interest calculated based on 2/3 of the current refinancing rate of the Bank of Russia and actually accrued in accordance with the loan agreement is recognized as a material benefit (MC) from savings on interest on a ruble loan:
MV \u003d PR2 / 3BR - PRdog.
The amount of material benefit received is the income of the taxpayer, subject to personal income tax at a rate of 35%, on the day the interest on the loan (credit) is paid. The amount of tax in relation to income for which a tax rate of 35% is applied is calculated by the tax agent separately for each amount of the specified income accrued to the taxpayer (paragraph 2, clause 3, article 226 of the Tax Code of the Russian Federation).
The amount of personal income tax from the material benefit of the employee must be deducted from the income paid to him in cash in the near future. At the same time, the amount of tax withheld cannot exceed 50% of the amount of the payment (clause 4, article 226 of the Tax Code of the Russian Federation).
Example 2 . Let's slightly change the conditions of example 1: a loan is issued to an employee on November 1, 2010; contracts.
The employee repaid part of the loan for the first time (40,000 rubles) on November 30, 2010, and on the same day the interest calculated for November was deducted from his salary - 1191.78 rubles. (500,000 rubles x 3% / 365 days x 29 days).
The interest rate calculated on the basis of 2/3 of the current refinancing rate of the Bank of Russia is 5.1667% (7.75% x 2:3). Consequently, the loan was provided to the employee at a rate of less than 2/3 of the current refinancing rate of the Bank of Russia (3%< 5,1667%). Поэтому у заемщика возникает доход в виде материальной выгоды от экономии на процентах, который включается в налоговую базу по НДФЛ.
The amount of interest calculated on the basis of 2/3 of the refinancing rate of the Bank of Russia, effective on the date of payment of interest, for November - 2052.51 rubles. (500,000 rubles x 5.1667% : 365 days x 29 days). Thus, the amount of material benefit from savings on interest for this month is 860.73 rubles. (2052.51 - 1191.78). The calculated amount of personal income tax is 301 rubles. (301.26 (860.73 rubles x 35%)) - withheld by the accounting department from the employee's salary for November.
On December 31, 2010, the borrower returned part of the loan to the organization for the second time (40,000 rubles) and paid interest for this month, calculated taking into account the partial repayment of the loan on November 30, - 1172.05 rubles. ((500,000 RUB - 40,000 RUB) x 3% / 365 days x 31 days).
Since the refinancing rate of the Bank of Russia has not changed on this date, the employee still receives income in the form of material benefits from savings on interest. The amount of interest calculated for this month based on 2/3 of the refinancing rate of the Bank of Russia is 2018.54 rubles. (460,000 rubles x 5.1667% : 365 days x 30 days). Consequently, the amount of material benefit from savings on interest for December amounted to 846.48 rubles. (2018.54 - 1172.05), and the personal income tax calculated from it is 296 rubles. (296.27 (846.48 rubles x 35%)). This amount of tax was deducted from the employee's salary in December.
Since the refinancing rate of the Bank of Russia remains unchanged during the term of the loan agreement, each month the employee receives income in the form of material benefits from savings on interest. Its amount in the period from January to October 2011 is determined in a similar manner. The personal income tax calculated from it is withheld by the tax agent on a monthly basis.
So, in October 2011, the interest under the agreement will amount to 152.88 rubles. (60,000 rubles x 3%: 365 days x 31 days), interest calculated for this month based on 2/3 of the refinancing rate of the Bank of Russia - 263.29 rubles. (60,000 rubles x 5.1667%: 365 days x 31 days), material benefit - 110.41 rubles. (263.29 - 152.88), the amount of calculated and withheld personal income tax - 39 rubles. (38.64 (110.41 rubles x 35%)).
The calculated values of interest both under the agreement and based on 2/3 of the refinancing rate, material benefits and personal income tax for each month of the loan agreement are shown in Table 1.
Table 1
|
Amounts/Months |
||||||
|
debt |
||||||
|
percent |
||||||
|
percent, |
||||||
|
material gain |
||||||
|
Amounts/Months |
September |
|||||
|
debt |
||||||
|
percent |
||||||
|
percent, |
||||||
|
material gain |
||||||
Because the wage employee and material benefits are taxed according to different tax rates - 13 and 35%(clauses 1, 2 of article 224 of the Tax Code of the Russian Federation), then at the end of the year (no later than April 1 (clause 2 of article 230 of the Tax Code of the Russian Federation)) for this individual in tax office it will be necessary submit two separate 2-NDFL certificates(paragraph 2 of section " General provisions"Recommendations for filling in information about the income of individuals in the form 2-NDFL, Appendix No. 1 to the form 2-NDFL, approved by Order of the Federal Tax Service of Russia dated 13.10.2006 N SAE-3-04 / [email protected](at the time of signing the number)).
The tax rate of 35% is indicated in the heading of section. 3 references, and the income code (for material gain - 2610) - in this section itself.
As mentioned above, income in the form of material benefits from savings on interest is determined on the day the interest on the loan (credit) is paid. Since the size of the refinancing rate of the Bank of Russia has recently been decreasing, it is quite possible that over time the employer will no longer be obliged to calculate it.
Example 3 . On April 1, 2009, the organization provided an employee who is a tax resident of the Russian Federation with a loan in the amount of 600,000 rubles. for a period of two years at 5.5% per annum. Under the terms of the loan agreement, the employee returns 25,000 rubles on the last day of each month. against the principal debt.
On April 30, 2009, the employee returned part of the loan and on the same day paid the interest calculated for April - 2621.92 rubles. (600,000 rubles x 5.5% / 365 days x 29 days).
The interest rate calculated based on 2/3 of the current Bank of Russia refinancing rate is 8.3333% (12.5% x 2/3), where 12.5% is the Bank of Russia refinancing rate effective on that day. Consequently, the loan was provided to the employee at a rate of less than 2/3 of the current refinancing rate of the Bank of Russia (5.5%< 8,3333%). Поэтому у заемщика возникает доход в виде материальной выгоды от экономии на процентах, который включается в налоговую базу по НДФЛ.
The amount of interest calculated on the basis of 2/3 of the refinancing rate of the Bank of Russia, effective on the date of payment of interest, for April - 3972.60 rubles. (600,000 rubles x 8.3333% : 365 days x 29 days). Thus, the amount of material benefit from savings on interest for this month is 1350.68 rubles. (3972.60 - 2621.92), the amount of personal income tax calculated from such income is 473 rubles. (472.74 (1350.68 rubles x 35%)). The accounting department of the organization deducted the specified amount of tax from the employee's salary for April 2009.
On May 31, 2009, the employee returned another 25,000 rubles, and interest was withheld from him under the contract for this month - 2685.96 rubles. ((600,000 RUB - 25,000 RUB) x 5.5% : 365 days x 31 days). On this day, the refinancing rate was 12%, 2/3 of it - 8% (12% x 2: 3) - exceeds the rate under the agreement (5.5%< 8,0%). Поэтому у заемщика вновь возникает income in the form of material gain from savings on interest, which is included in the personal income tax base:
Interest calculated on the basis of 2/3 of the refinancing rate of the Bank of Russia, effective on the date of their payment - 3906.85 rubles. ((575,000 rubles x 8.0% / 365 days x 31 days);
The amount of material benefit from savings on interest for May is 1220.89 rubles. (3906.85 - 2685.96);
The calculated amount of personal income tax - 427 rubles. (427.31 (1220.89 rubles x 35%)).
Income in the form of material benefits from savings on interest for the employee will arise up to and including February 2010, since 2/3 of the refinancing rate in force on the last day of each month in this period: 7.6667% (11.5% x 2 : 3) in June, 7.3333% (11.0% x 2:3) in July, 7.1667% (10.75% x 2:3) in August, 6.6667% (10.0% x 2:3) in September, 6.3333% (9.5% x 2:3) in October, 6.0% (9.0% x 2:3) in November, 5.8333% (8.75% x 2: 3) in December and January, 5.6667% (8.5% x 2: 3) in February - will exceed the contractual interest rate of 5.5%.
In March, 2/3 of the refinancing rate will equal the interest rate under the agreement of 5.5% (8.25% x 2:3). Therefore, the employee no longer has income in the form of material benefits from savings on interest this month.
Since in the future the size of the refinancing rate of the Bank of Russia decreases somewhat, the tax agent no longer needs to calculate and withhold personal income tax from material benefits.
The refinancing rates of the Bank of Russia on the last day of the month and the calculated interest under the agreement for each month during the period of the loan agreement, as well as the amount of interest calculated based on 2/3 of the refinancing rate, material benefits and personal income tax from April 2009 to March 2010 are given in Table 2.
table 2
|
September |
||||||
|
Bid |
||||||
|
Amounts: |
||||||
|
percent |
||||||
|
percent, |
||||||
|
material gain |
||||||
|
Bid |
||||||
|
Amounts: |
||||||
|
percent |
||||||
|
percent, |
||||||
|
material gain |
||||||
|
September |
||||||
|
Bid |
||||||
|
Amounts: |
||||||
|
percent |
||||||
|
Bid |
||||||
|
Amounts: |
||||||
|
percent |
||||||
Note that if the terms of the contract provided for the payment of interest twice - after a year and at the end of the contract, then the employer would not have to withhold personal income tax from the employee at all. In this case, there are no material benefits on March 31, 2010 and March 31, 2011, since the interest rate under the contract on the first date is 2/3 of the refinancing rate (5.5% (8.25% x 2: 3)), and on the second it surpasses it (5.5% > 5.1667% (7.75% x 2: 3)).
Issuance of an interest-free loan
The lender, as mentioned above, has the right provide interest-free loans.
The procedure for determining the date of receipt of income in the form of material benefit on an interest-free loan is not established in the Tax Code of the Russian Federation, because the lender does not pay interest under the agreement. The date of actual receipt of the income in question, as mentioned above, is the day of payment of interest on the received borrowed (credit) funds.
According to financiers, the date of actual receipt of income in the form of material benefits from savings on interest for using an interest-free loan (credit) should be considered the date of return by the taxpayer of borrowed (credit) funds (Letters of the Ministry of Finance of Russia dated 01.22.2010 N 03-04-06 / 6 -3, dated July 17, 2009 N 03-04-06-01/175, dated April 14, 2009 N 03-04-06-01/89).
Offering this, the Ministry of Finance seems to believe that when the borrowed funds are returned, the borrower also pays interest, the value of which in this case is 0 rubles. (Sz x 0%).
When the borrower returns the amount of an interest-free loan (credit) in installments, income in the form of material benefits from savings on interest, subject to personal income tax, arises for him on each date of partial repayment of borrowed (credit) funds.
In the Letter of the Ministry of Finance of Russia dated February 1, 2010 N 03-04-08 / 6-18, officials specified that if during the tax period (calendar year) the borrower did not pay interest on the loan (credit) to the lender (creditor), then in this tax period he does not have income in the form of material benefits subject to personal income tax.
And they argued this as follows. The date of actual receipt of income in the form of material benefit in accordance with paragraphs. 3 p. 1 art. 223 of the Tax Code of the Russian Federation, the day of payment by the taxpayer of interest on received borrowed (credit) funds is recognized. The Tax Code of the Russian Federation does not contain provisions providing for the determination of the tax base for personal income tax in relation to income in the form of material benefit at other times.
Example 4 . Let's slightly change the data of example 3: the employee was given an interest-free loan in the amount of 600,000 rubles. for two years, which must be returned on March 31, 2011. The loan is returned in installments of 300,000 rubles. March 31, 2010 and 2011 The refinancing rates of the Bank of Russia for these days are 8.25% and 7.75%. The organization followed the recommendations of the financiers.
When returning the first part of the loan, 300,000 rubles, on March 31, 2010, the interest calculated on the basis of 2/3 of the refinancing rate in force on that day amounted to 32,909.59 rubles. (600,000 rubles x 8.25% x 2: 3: 365 days x 364 days). Since the employee was given an interest-free loan, the amount of material benefit is equal to the calculated amount of interest - 32,909.59 rubles. Therefore, this month, the employee had to additionally withhold 11,518.36 rubles. (32,909.59 rubles x 35%).
When the loan is repaid on March 31, 2011, the amount of material benefit will decrease to 15,500 rubles. (300,000 rubles x 7.75% x 2: 3: 365 days x 365 days). The amount of personal income tax calculated from it, subject to deduction and transfer to the budget, is 5425 rubles. (15,500 rubles x 35%).
Tax agents by virtue of the norms of paragraph 1 of Art. 17 and paragraph 7 of Art. 3 of the Tax Code of the Russian Federation, of course, they may try not to calculate, withhold and transfer personal income tax to the budget when issuing interest-free loans to individuals.
Recall that the tax is considered established only when the taxpayers and elements of taxation are determined. In the list of elements of taxation to be determined, the legislator also indicated the procedure for calculating the tax. The procedure for calculating personal income tax when issuing interest-free loans to individuals is not directly established. The interpretation by financiers of the concept of "payment by the taxpayer of interest" as "return by the taxpayer of borrowed (credit) funds", in our opinion, is not so correct. Nevertheless, irremovable doubts and contradictions of the tax legislation should be interpreted in favor of the taxpayer.
However, the lender will most likely have to defend such a position in court. It is difficult to say in advance what decision the judges will make.
A loan, as mentioned above, can be denominated in foreign currency, and provided in rubles at the rate on the date of issuance (transfer) of the loan. In this case, the material benefit from savings on interest, according to the judges of the Federal Antimonopoly Service of the Moscow District, should be calculated on the basis of paragraphs. 1 p. 2 art. 212 of the Tax Code of the Russian Federation, and not paragraphs. 2 p. 2 art. 212 of the Tax Code of the Russian Federation, since the monetary obligation was expressed in rubles (clause 2 of article 317 of the Civil Code of the Russian Federation) (Resolution of the Federal Antimonopoly Service of the Moscow District of October 26, 2005 N KA-A40 / 10483-05-P).
The payment by the employer to an employee of funds in the form of an interest-free loan is not a payment accrued in favor of the employee in the framework of labor or civil law relations, the subject of which is the performance of work or the provision of services. Therefore, it is not recognized as an object of taxation of insurance premiums to state off-budget funds by virtue of paragraph 3 of Art. 7 of the Federal Law of July 24, 2009 N 212-FZ "On insurance contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund and territorial compulsory medical insurance funds." Consequently, insurance premiums are not charged from it to the PFR, the FSS of the Russian Federation, the FFOMS and the TFOMS (Letter of the Ministry of Health and Social Development of Russia dated May 19, 2010 N 1239-19).
The material benefit arising from the employee when he receives an interest-free loan from the employer is also not taken into account when calculating insurance premiums, since the employee does not actually receive such income.
Debt Forgiveness
The borrower may have difficulty getting the money back. The management of the organization can meet him halfway and forgive the debt (Article 415 of the Civil Code of the Russian Federation). Forgiveness of debt in this case is a contract of donation. For both parties to the loan agreement, it is better if this document is drawn up in writing.
The amount of forgiven debt in accounting is recognized as other expenses (clauses 2, 11 PBU 10/99). In tax accounting, this amount in expenses when calculating tax is not taken into account by virtue of clause 16 of Art. 270 of the Tax Code of the Russian Federation. For this reason, when debt is forgiven in accounting, there is a constant difference. And this, in turn, obliges the organization to accrue a permanent tax liability (clauses 4, 7 of the Accounting Regulation "Accounting for corporate income tax settlements" PBU 18/02, approved by Order of the Ministry of Finance of Russia dated November 19, 2002 N 114n ).
Income in the form of material benefit arises from the borrower when repaying an interest-free loan or if the interest calculated on the basis of 2/3 of the refinancing rate of the Bank of Russia, effective on the day of their payment, exceeds the interest calculated on the basis of the terms of the agreement. If the loan is not repaid, including in the case of debt forgiveness, then the borrower does not receive income in the form of material benefits from savings on interest for using the loan, according to the Russian Ministry of Finance.
When the organization forgives the debt to the employee, the obligation to repay the loan received is removed from him. But from that moment on, the borrower has an economic benefit in the form of the amount of forgiven debt under the loan agreement.
The Tax Code of the Russian Federation defines income as an economic benefit in cash or in kind, taken into account if it is possible to assess it and to the extent that such benefit can be assessed, and determined for individuals in accordance with Ch. 23 of the Tax Code of the Russian Federation (Article 41 of the Tax Code of the Russian Federation).
Based on this, income in the form of the amount of forgiven debt is subject to personal income tax at a rate of 13%(Letter of the Ministry of Finance of Russia dated January 22, 2010 N 03-04-06 / 6-3).
In this case, the date of receipt of income (that is, the date on which the tax must be calculated) will be the day the debt forgiveness agreement is signed.
Since the amount of the forgiven debt is a gift to the employee (money, by virtue of Articles 128, 130 of the Civil Code of the Russian Federation, belongs to the category of movable things), then the income code in the 2-NDFL certificate should be indicated accordingly - 2720 "Value of gifts".
The cost of gifts, including in the form of money received by taxpayers from organizations in an amount not exceeding 4,000 rubles, is not subject to personal income tax (clause 28, article 217 of the Tax Code of the Russian Federation, Letter of the Ministry of Finance of Russia of November 23, 2009 N 03-04- 06-01/302).
If debt forgiveness is formalized by a donation agreement, then the amount of the debt forgiven to the employee under the loan agreement, in accordance with paragraph 3 of Art. 7 of Law N 212-FZ, is not subject to insurance premiums to state off-budget funds (Letters of the Ministry of Health and Social Development of Russia dated 12.08.2010 N 2622-19, dated 27.02.2010 N 406-19). In the absence of such an agreement, the inspectors will consider that the forgiveness of the debt was carried out within the framework of an employment relationship, and therefore insurance premiums should be charged on the amount of the debt.
In the aforementioned Letter of the Ministry of Health and Social Development of Russia N 1283-19, officials stated that in the event of termination of obligations to return funds by an employee under a loan agreement, the amount of the outstanding debt is subject to insurance premiums in accordance with paragraph 1 of Art. 7 of Law N 212-FZ as a payment made in favor of the employee in the framework of his employment relationship with the organization.
Note that from January 1, 2011, Federal Law No. 339-FZ of 08.12.2010 "On Amendments to the Federal Law" On Insurance Contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund and territorial funds obligatory medical insurance" and certain legislative acts of the Russian Federation" clarified the object of taxation of insurance premiums. Now it is understood as payments and other remuneration accrued by payers of insurance premiums in favor of individuals in the framework of labor relations and civil law contracts, the subject of which is the performance of work, the provision of services.
Unfortunately, the legislator did not specify what exactly should be understood by payments and remuneration "within the framework of labor relations."
It is logical to assume that these are only those payments that are associated with the performance of an employee's labor function and depend on the results of his work: wages, production bonuses and other payments provided for by the wage system. The same payments that are not due to the performance of the employee's labor functions should not be subject to insurance premiums (for example, these may be the same gifts for holidays).
However, it is possible that the inspectors of extra-budgetary funds will require the calculation of contributions for all payments to employees (i.e. persons with whom employment contracts), other than those listed in Art. 9 of Law N 212-FZ. And this means that it will be necessary to accrue insurance premiums to state off-budget funds and for the amount of forgiven debt.
In our opinion, the amount of forgiven debt should not be taxed with insurance premiums for industrial injuries, since these funds are not so correctly attributed to payments and other remuneration paid by insurers in favor of the insured within the framework of labor relations.
Recall that from January 1, 2011, the Federal Law of December 08, 2010 N 348-FZ "On Amendments to the Federal Law" On Compulsory Social Insurance against Industrial Accidents and Occupational Diseases "finally introduced the concept of the object of taxation by these insurance premiums The object of taxation of contributions for "injuries" are payments and other remuneration accrued in favor of the insured persons:
Within the framework of labor relations;
Under civil law contracts, if the terms of the contract oblige the insured to pay insurance premiums.
In the introduced Art. 20.2 of Law N 125-FZ provides a list of payments that are not subject to insurance premiums for industrial injuries. And it is almost identical to the list given in Art. 9 of Law N 212-FZ.
As you can see, in this case, too, the legislator used the concept of "payments and other remuneration accrued by payers of insurance premiums in favor of individuals within the framework of labor relations."
And, most likely, inspectors from the FSS of the Russian Federation will insist on the need to accrue insurance premiums for industrial injuries and for the amount of forgiven debt.
Example 5 . Let's slightly change the condition of example 4: the employee was unable to repay the second part of the loan on March 31, 2011. On this day, the employer and employee signed a donation agreement for the remaining outstanding loan amount - 300,000 rubles. In March, the employee received 36,700 rubles.
When the organization forgives the debt to the employee, the obligation to repay the loan received is removed from him. But he has income in the form of the amount of forgiven debt, subject to personal income tax at a rate of 13%. When presenting a gift (and it can also be money), the taxable income includes an amount exceeding 4,000 rubles. Consequently, the calculated amount of personal income tax from the forgiven debt will be 38,480 rubles. ((300,000 rubles - 4,000 rubles) x 13%).
It is necessary for the organization to keep it from the income paid to the employee in cash in the near future. But at the same time, one should not forget about the existing restriction: the amount of tax withheld cannot exceed 50% of the amount of the payment.
Since the organization signed a donation agreement with the employee, insurance premiums to state extra-budgetary funds are not charged from the forgiven amount.
300,000 rubles are not included. and to the base from which insurance premiums for compulsory insurance against industrial accidents and occupational diseases are calculated.
It is possible that the decision on non-calculation of insurance premiums from the amount of forgiven debt to state extra-budgetary funds and on industrial injuries of the organization will have to be defended in the arbitration court.
In accounting, debt forgiveness will be accompanied by the following entries:
Debit 91-2 Credit 73-1-1
300 000 rub. - the amount of forgiven debt is taken into account;
Debit 99 Credit 68, sub-account "Calculations for income tax",
60 000 rub. (300,000 rubles x 20%) - a permanent tax liability has been accrued;
RUB 38,480 - personal income tax was charged on the non-refundable loan amount;
Debit 70 Credit 68, subaccount "Calculations for personal income tax",
4771 rub. ((36,700 rubles + A rubles) x 13% - A rubles x 13%) - personal income tax is charged on the employee's income for March, where A rubles. - taxable income of an employee for January - February, A rub. x 13% - personal income tax withheld in the first two months of 2011
The total amount of personal income tax calculated in March is 43,251 rubles. (38 480 + 4771). The tax agent has the right to withhold only 18,350 rubles. (36,700 rubles x 50%):
Debit 51 Credit 70
RUB 18,350 - personal income tax withheld from the employee's earnings.
The rest of the tax, 24,901 rubles. (43 251 - 18 350) will be taken into account when withholding personal income tax in subsequent months.
Taking into account the possibility of non-repayment of the loan and in order to avoid the resulting tax consequences when forgiving a debt with an employee, it makes sense to conclude a loan agreement without specifying a period for repaying the loan amount. According to civil law, if the repayment period is not established by the agreement, then the loan amount must be repaid by the borrower within 30 days from the date the lender submits a request for this (paragraph 2, clause 1, article 810 of the Civil Code of the Russian Federation). In this case, the employer simply does not have to demand the return of the loan.
A loan agreement between an individual and a legal entity establishes the order of relations between a company and an individual citizen.
At the same time, the borrower is aimed at obtaining a loan without interest, and the lender is aimed at protecting himself from non-payment. A loan agreement to an individual from a legal entity is becoming increasingly popular due to the benefits of this operation for both parties.
Are there any restrictions
The law does not establish restrictions on loans between individuals and legal entities. However, there are a number of provisions that may be controversial. For example, it is considered that the contract can be concluded orally if the loan amount does not exceed one thousand rubles.
Dear readers! The article talks about typical ways to solve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:
It's fast and IS FREE!
This is not entirely true, because if the lender is a legal entity, then the contract will in any case be written.
As for modern receipts, it is worth knowing that a receipt does not replace a contract and has completely different ways of collecting a debt. A receipt can only be a fact of transferring money, but does not play a significant role in court.
A loan agreement between an individual and a legal entity may be concluded on a reimbursable and non-reimbursable basis. In this case, interest can be registered in both types of document.
The law determines the procedure for determining such contracts under Article 809 of the Civil Code of the Russian Federation:
- the contract is gratuitous if interest is not indicated in it, and not money, but property is transferred under it;
- if the document does not contain interest, but it is defined as gratuitous, then interest can be accrued based on the refinancing rate;
- if the borrower decides to close the loan ahead of schedule, then the lender has the right to receive interest for the real time use of money or property;
- the lender can demand the return of the entire debt if the borrower delays the next payment. Moreover, the amount will be determined taking into account interest for the past period.
Thus, the conditions for processing documents between individuals and legal entities are quite strict and have a lot of nuances, since they differ significantly from the usual types of modern loans.
Taxation (2015) of a loan to an individual from a legal entity
The issues of taxation of loans between a legal entity and an individual are quite interesting. On the one hand, borrowing money for an organization is not an expense, and the amount is not taken into account in determining the tax base.
But if money is borrowed at interest, then it is considered the income of the organization and is subject to income tax. Tax on this amount is levied in accordance with paragraph 10 of paragraph 1 of Art. 251 of the Tax Code of the Russian Federation.
It is worth noting that the interest rate should not be higher than the average rate that was applied in this quarter. The rate may fluctuate if it is fixed in the contract, but in any case, fluctuations cannot be more than 20% of the average interest rate for the period.
Let's make a calculation. If an individual borrows 100,000 rubles for 1 year at 15%. Interest accrues in a simple way, that is, for the entire amount, and in a year the overpayment will be 15,000 rubles.
These 15,000 will be the income of the enterprise, which is subject to a 20% income tax (as of 2019).
It happens that the organization is not a payer of income tax. In this case, accrued interest is included in income (under the simplified taxation system (STS)).
This happens when funds are borrowed by an individual from a company. Another situation may arise when a legal entity borrows money from an individual.
In this case, the interest received by the lender will be subject to personal income tax at the rate in force at the time the interest money is received (13% as of 2019). At the same time, the tax is withheld by an organization that independently transfers to the tax office.
Thus, the tax legislation still does not have specific provisions on what a loan operation is: a financial service or an investment, and also has many controversial issues regarding the payment of taxes.
Video: Individual Bankruptcy Law
Loans with and without interest payments
Loans with payment of remuneration are called reimbursable (or interest-bearing). Funds under this agreement are subject to interest. It is worth noting that the operation is also compensated, under the terms of which not money, but property is transferred. An overpayment may also be charged for this.
A loan without payment of remuneration is called gratuitous (or interest-free). It takes place if the interest is not specified in the contract. In this case, the borrower returns only the amount of the debt or the borrowed thing (equipment and other valuable things).
The refinancing rate or inflation may be added to the amount, however, these interest are not considered to be reimbursable, since they allow the money not to depreciate.
Thus, a loan without interest does not mean at all that it will not contain overpayments. In any case, before signing the contract, you should read it carefully.
Sample contract
A loan agreement may have a legal entity and an individual as a lender. The form of the document is unchanged, but only the parties to the transaction in the general conditions change. An example contract can be downloaded:
It contains several items:
- rights and obligations of the parties;
- individual conditions;
- the procedure for action in case of force majeure;
- terms and procedure for payment of debts;
- guarantees of the borrower and the lender;
- Contact details.
Before signing, the borrower should carefully read the contract at the time of errors in it in order to make timely changes. A loan repayment schedule may be attached to the document, which indicates the amount of the monthly payment, the dates and the final amount of the overpayment. The schedule must be signed by the borrower.
postings
The operations of issuing a loan are reflected in the accounts of accounting.
To account 58 "Financial investments" the following sub-accounts are opened:
- 58-1 "Shares and shares";
- 58-2 "Securities";
- 58-3 "Granted loans", etc.
Account 58-3 is opened if the company issues loans. This account indicates all the funds issued, regardless of whether the individual is the borrower or the legal entity. If the money is loaned to an employee of the organization, then they are reflected in another account.
The issuance of money in debt is reflected in the debit of account 58 and the credits of accounts 51 "Settlement accounts", 50 "Cashier" and others. The return of funds is reflected in the reverse entry and the 58th account "leaves" on credit. At the end of the credit period, the sub-account has a zero balance and can be closed.
If money is borrowed by an organization for up to 12 months, then it can be reflected in the credit of account 66 “Settlements on short-term loans and loans” and the debit of accounts 50 “Cashier”, 51 “Settlement accounts”, 52 “Currency accounts”, 55 “ Special bank accounts”, 60 “Settlements with suppliers and contractors”, etc.
Issuance of a loan from an organization to an employee of this organization
Making a loan to an employee is reflected in accounting a little differently. The institution has the right to lend funds to its staff at the expense of net profit. Calculations are approved by the chief accountant of the enterprise with the mandatory signature of the director.
An employee who is given a loan must apply to the accounting department with an application for the provision of borrowed funds for a certain period.
A standard loan agreement is concluded, where the main parameters of the loan are prescribed in individual conditions:
- interest rate (for a reimbursable loan);
- sum;
- term;
- repayment methods.
Requirements for the contract with employees are specified in Ch. 42 of the Civil Code. The transaction is considered concluded from the moment the money is transferred to the employee. An example contract can be downloaded:
In most cases, institutions are interested in the loyalty of employees and therefore lend funds without interest. The organization is also loyal to the payment. The contract specifies how the borrower repays the loan: in parts or in full, and the organization can also set the purpose of the loan.
Such a loan is called a target loan and, according to Article 814 of the Civil Code of the Russian Federation, it can be recovered ahead of schedule.
If the loan is issued in kind, then it may be subject to VAT, although there is no consensus on this matter. It is believed that VAT is needed, since under the contract things are transferred into ownership, and such a transfer is subject to VAT in any case.
Some believe that VAT is levied only on the irrevocable transfer of material assets, and when issuing a loan that needs to be repaid, the collection of VAT is unlawful.
Thus, taxation in 2019 does not provide clear answers on what taxes should be paid. It all depends on the specific tax and features of the loan agreement.
The only tax that you have to pay is personal income tax if the loan is provided by an individual to a legal entity. If the borrower is an individual, then a loan from an organization is very profitable, since most often it is not subject to interest, and therefore does not require a large overpayment.
APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and 7 days a week.
We advise you to read
Psychological characteristics of children in adolescence
Transferring a child to another school - the procedure and necessary documents Whether to transfer a child to another school
Chlamydia urogenital - description, causes, symptoms (signs), diagnosis, treatment Treatment of urogenital chlamydia
The benefits and significance of hydroamino acid threonine for the human body L threonine what
