/ / Tax consequences of an interest-free loan between legal entities. Receiving interest-free loans from legal entities

The tax consequences of an interest-free loan between legal entities. Receiving interest-free loans from legal entities

Interest-free loan is commonamong business entities. Until recently, the attitude of the tax authorities to this issue was unequivocal: the lender is obliged to pay income tax. Therefore, any redistribution of funds within the holding company became risky. But the decision of the higher courts made positive adjustments.

Essence

Organizations often have a need foradditional funding. For enterprises of one holding, this problem is solved by granting a loan. Such transactions are used in financial planning. Lenders provide funds at no cost. But the recipient of such a transaction to face the collection of income tax (SPE).

tax consequences of an interest-free loan between legal entities

Classic scheme

Companies create legal entity, conclude with himseveral contracts. This allows the company to quickly begin production activities. After receiving the proceeds, the organization accepts "incoming" VAT. This solves the problem of determining the sources of tax payment, and cash gaps are easily covered. In BU, the operation is executed as a loan, and in CU - as a redistribution of finances, 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 GMP.

Legal regulation

The lender provides material assistance to the needy party. The debtor takes the obligation to return the amount at the specified time. So the parties enter into a relationship.

Условия заключения сделки определяются договором.It begins to operate from the moment of transfer of the object (amount of funds, securities, bills, etc.). According to Art. 809 of the Civil Code, the transaction automatically becomes interest-free if the object is things.

consequences of an interest-free loan

Requisites

In the contract you need to specify the following items:

  • the time and place of his imprisonment;
  • parties to the transaction (full company names, initials of the founders);
  • subject - interest-free loan;
  • terms of issue and method of returning funds (most often use the scheme with monthly payments);
  • sanctions in case of delayed payment;
  • liability of the parties: the causes and conditions of termination of the contract, force majeure;
  • Bank details;
  • signatures.

It is very important to check the accuracy of the design.papers and all details. Presence at the conclusion of the transaction of the notary is welcomed. If the loan is provided in a foreign currency, you must comply with the exchange rate. If the term of the refund is not specified in the contract, it is calculated within 30 days from the date of the request.

interest-free loan agreement between legal entities

Features

Loan agreement between legal entities(interest free) can be repaid ahead of schedule. These operations do not affect the profitability of the transaction: the commission is still not accrued. Therefore, the lender is primarily interested in such a scheme. But even after paying the debt, the relationship of the participants does not end. They have to pay fees. Let us consider in more detail the tax consequences of an interest-free loan between legal entities.

According to the FTS, loan relations canqualify as rendering financial services. But no fee is charged for them. Interest-free loan tax authorities refer to non-operating income in the form of property rights or services (Art. 250 NK). The economic benefit is estimated at the discount rate of the Central Bank 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.

Legal entity received from the lendera certain amount, can then invest it in production. Then these funds will not be included in the taxable base. The company is not obliged to pay taxes.

If the lender and the borrower are individuals, then aboutPayment fees are not. Receiving interest-free loans from legal entities is accompanied by the payment of personal income tax - 35% of 75% of the current refinancing rate.

To get rid of the claims of the FTS, you need to prove that the loan is not a service, the results of which will be used in activities.

Requirements

Borrowers can act as a legal entity who:

  • have official permission to enter into transactions;
  • undertake to use the accepted funds for the purposes specified in the contract.

A lender can be an enterprise thatthe statute and the law is not prohibited to provide funds on credit. It only requires ownership of the object. The subject of the loan is transferred to the full order, but for a time.

interest-free tax accounting

Return

Time to pay off 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 participant in the transaction. The lender may require an additional guarantee: a pledge of property, a guarantee of a shareholder or manager. Payment of funds is the transfer of the full amount to the creditor's account. If a debt is formed within a month (sometimes a quarter), the lender may apply to the court.

NC VS GK

The treatment of an interest-free loan in the Tax and Civil Codes differs in such parameters:

  • В гражданском законодательстве договор займа и The provision of services is two different documents that cannot be compared. In this case, the transfer of funds for use was repeatedly considered by the courts as the provision of property.
  • A service is an activity whose results have no material expression. The provision of funds is not. In addition, money is used upon receipt.
  • The service is recognized free of charge if the recipient is not obliged to transfer the property to the lender. But the loan agreement always provides for the return of values.

Material benefits

There are many questions about the consequencesinterest free loan. Taxpayers are charged by the tax specialists with 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 fee. This norm of the FTS is trying to apply to the NPP. The tax consequences of an interest-free loan between legal entities in the form of fines are usually challenged by lawsuits.

on the consequences of an interest-free loan

Arbitrage practice

Although most of the lawsuits for thisthe issue was decided in favor of taxpayers, the number of claims from the FTS for a long time did not decrease. The situation changed when the Supreme Arbitration Court of the Russian Federation issued a resolution in which it indicated that the benefit from the savings for using borrowed funds was not considered in NK as a basis for calculating the GMP. Such operations are not recognized as a service for the purpose of charging VAT, and the funds under the loan agreement are not received free of charge. Therefore, the negative consequences of providing an interest-free loan are minimized.

Risks

Detailed consideration require surgery, inwhich funds received under the loan agreement are used in order to issue an interest-free loan between legal entities. The tax consequences in such transactions are more serious.

The costs that reduce the base for calculating the GMP,Recognizes all costs incurred in the implementation of activities aimed at making a profit. That is, when accounting for interest payments on loan agreements, you need to confirm that the use of funds is aimed at generating income. This is difficult to do when it comes to getting an interest-free loan. An organization 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 challenge such transactions by the FTS in court.

consequences of an interest-free loan between legal entities

Issuance of IP funds

Under the terms of the contract, the borrower receives some things or cash and undertakes to return them upon expiration. An interest-free loan is one in which:

  • The amount provided does not exceed the 50-fold minimum wage.
  • Одна из сторон сделки не занимается хозяйственной activities. You can provide a document confirming that the creditor transferred under the contract the funds that he received, for example, from the sale of property.
  • The borrower receives values ​​with certain generic attributes.

The tax consequences of an interest-free loan betweenlegal entities may not occur at all, if the document will be assigned at least the minimum rate for the use of funds. It is possible to conclude an additional agreement and prescribe in it that by the time of the refund the borrower will have to pay, for example, 1% per annum.

 interest-free loan between legal entities tax implications

The consequences of non-return

The lender has the right to demand a refund.through court within three years from the day following the date of return specified in the contract. If the term of the loan is 5 years, the litigation can last up to 8 years. Only after this period can you write off payables and include its size in the base for the calculation of GMP.

If the borrower every 3 years following the expiration day sends letters to the lender with readiness to repay the debt, the limitation period will never expire.

In order not to take into account the amount of unreturned funds in taxable income, you need:

  • set the maximum loan repayment period;
  • after its occurrence and after 2 years and 11 months, send to the lender a letter of recognition of the debt by mail with the notification of receipt.
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