Commentary on the Letter of the Ministry of Finance of the Russian Federation of February 15, 2016 No. 03-04-05/7920.

In the commented Letter No. 03-04-05/7920 dated February 15, 2016, employees of the financial department recalled that the deadlines had changed from January 1, 2016 payment of personal income tax, namely according to paragraphs. 3 p. 1 art. 223 of the Tax Code of the Russian Federation for the purpose of paying personal income tax date receipt of income in the form of material benefit is the day of its receipt.

Consequently, the date of receipt of income from savings on interest is now recognized as the last day of each month during the period for which the borrowed (credit) funds were provided.

At the same time, employees of the Ministry of Finance clarified that since 2016, received from savings on interest, is determined on the last day of each month in which the loan (credit) agreement was in effect, regardless of the date such a loan (credit) was received, and also regardless of whether on which day of the month it was terminated promissory note.

Please note: The above procedure also applies in cases where interest under the terms of the agreement was accrued, but not paid before 01/01/2016. This is stated in the Letter of the Ministry of Finance of the Russian Federation dated February 2, 2016 No. 03-04-06 / 4762.

How to determine the date of receipt of material benefits if the loan was issued in 2015 and repaid in 2016?

In what cases does material benefit arise?

In accordance with paragraphs. 1 p. 1 art. 212 of the Tax Code of the Russian Federation, an organization is obliged to calculate personal income tax from material benefits received from savings on interest when providing a loan (including interest-free) to an individual:

• if the rate on a loan, the amount of which is determined in rubles, is less than 2/3 of the refinancing rate (key rate) of the Central Bank of the Russian Federation (clause 1, clause 2, article 212 of the Tax Code of the Russian Federation);
• if the rate on a loan, the amount of which is determined in foreign currency, less than 9% (clause 2, clause 2, article 212 of the Tax Code of the Russian Federation).

What is the rate for personal income tax on material benefits?

The Tax Code of the Russian Federation established personal income tax rates. This article says:

• if the borrower is a tax resident of the Russian Federation - at a rate of 35% (clause 2, article 224 of the Tax Code of the Russian Federation);
• if the borrower is not a tax resident of the Russian Federation - at a rate of 30% (clause 3 of article 224 of the Tax Code of the Russian Federation).

The amount of material benefit on a loan issued in rubles is calculated by the formula:

MW \u003d SZ x (2/3 x% of the Central Bank of the Russian Federation -%) / 365 (366) x days., Where:

MV- the material benefit received from savings on interest;

NW- loan amount;

% TSB RF- the refinancing rate of the Central Bank of the Russian Federation, which was in effect on the last day of the month;

% - the interest rate on the loan;

365 (366) - the number of days in a year;

days

The amount of material benefit on a loan issued in a foreign currency is calculated by the formula:

MW \u003d SZ x (9% -%) / 365 (366) x days., Where:

MV– material benefit from savings on interest;

NW- loan amount;

% - the interest rate on the loan;

365 (366) - the number of days in a year;

days- the number of days of using the loan per month.

For clarity, we will give an example of calculating the material benefit of an individual received from savings on interest, personal income tax from it, indicating the specific dates of receipt of income.

Example

On 12/18/2015, the organization provided its employee with a loan in the amount of 60,000 rubles. for a period of 3 months at a rate of 3% per annum. The employee is tax resident. Interest is paid in a lump sum upon repayment of the loan. On March 18, 2016, the employee returned the loan and paid interest in the amount of 447.54 rubles. (60,000 rubles x 3% / 366 days x 91 days). We calculate personal income tax from the material benefits received from savings on interest on the loan issued.

So, the date of receipt of income from savings on interest is the last day of each month during the period for which the loan (credit) funds were provided in 2016, and in 2015 it is the date of repayment of the loan by the tax agent. The refinancing rate (key rate) on the interest payment date is 11%.

In 2016, the material benefit from savings on loan interest will be:

• as of January 31 - 223.6 rubles. (60,000 rubles x (2/3 x 11% - 3%) / 366 days x 31 days). Personal income tax from the amount of material benefits - 78.26 rubles. (223.6 rubles x 35%);
• on February 29 - 209.18 rubles. (60,000 rubles x (2/3 x 11% - 3%) / 366 days x 29 days). Personal income tax from the amount of material benefits - 73.21 rubles. (209.18 rubles x 35%);
• as of March 31 - 122.62 rubles. (60,000 rubles x (2/3 x 11% - 3%) / 366 days x 17 days). Personal income tax from the amount of material benefits - 42.92 rubles. (122.62 rubles x 35%).

material gain, received from the savings on interest on the loan for 2015, will be:

• on March 18 - 100.98 rubles. (60,000 rubles x (2/3 x 11% - 3%) / 366 days x 14 days). Personal income tax from the amount of material benefits - 35.34 rubles. (100.98 rubles x 35%).

When is it necessary to transfer personal income tax to the budget?

According to paragraphs 4 and 6 of Art. 226 of the Tax Code of the Russian Federation, the organization must withhold personal income tax from material benefits upon the next payment of money to the borrower. As for the tax, it must be transferred to the budget no later than the day following the day when the money was paid.

Are the sums of material benefits accrued to off-budget funds?

According to part 3 of Art. 7 federal law 212-FZ does not apply to the object of taxation of insurance premiums, payments and other remunerations made, in particular, within the framework of civil law contracts, the subject of which is the transfer of ownership or other real rights to property (property rights). Thus, the material benefit of an employee for using an interest-free loan received from an employer is not recognized as an object of taxation of insurance premiums.

These clarifications are presented in the Letter of the Ministry of Labor of the Russian Federation dated February 17, 2014 No. 17-4 / V-54.

Federal Law No. 212-FZ dated July 24, 2009 “On Insurance Contributions to the Pension Fund Russian Federation, Foundation social insurance Russian Federation, federal fund compulsory health insurance.

It is necessary to calculate income in the form of material benefits from savings on interest on loans on the last day of each month. For example, a loan was issued on January 15 and repaid on March 23. Then it will be necessary to calculate the materiel on January 31, February 28 (29) and March 31 (subclause 7, clause 1, article 223 of the Tax Code of the Russian Federation).

If an organization issued a loan to an individual (for example, to its employee), then it will be in relation to income in the form of a profit. Therefore, the organization will have to (Article 226 of the Tax Code of the Russian Federation):

• monthly calculate income in the form of matvy benefits and personal income tax from it;
• withhold tax from nearby cash payments natural person;
• transfer withheld tax to the budget;
• at the end of the year, submit a 2-NDFL certificate to an individual.

If cash income is not paid to an individual and there is nothing to withhold tax from, then at the end of the year, no later than March 1, it is necessary to inform the Federal Tax Service of the impossibility of withholding tax (clause 5, article 226 of the Tax Code of the Russian Federation).

Interest-free loan: material benefit and personal income tax

The profit on interest-free loans is calculated according to the following formula (subclause 1, clause 1, clause 2, article 212 of the Tax Code of the Russian Federation):

The number of days of using the loan is calculated:

• in the month when the loan was issued - from the day following the day the loan was issued and until the last day of the month;
• in the month when the loan is repaid - from the first day of the month to the day the loan is repaid;
• in other months - as a calendar number of days in a month.

Material benefit under an interest-bearing loan agreement: personal income tax

If the loan is at interest, but interest rate under the contract is less than 2/3 of the key rate of the Central Bank, then the profit is calculated according to the following formula (subclause 1 clause 1, clause 2 article 212 of the Tax Code of the Russian Federation):

Calculation of personal income tax from material benefits on loans

The personal income tax rate from material benefits on loans is (Article 224 of the Tax Code of the Russian Federation):

• if an individual is a resident - 35%;
• if an individual - - 30%.

You need to withhold tax from the nearest payable to an individual cash income.

To calculate personal income tax from material benefits on a loan, you can use.

Payment of personal income tax on material benefits on a loan

Personal income tax withheld from any income paid to an individual (except for vacation pay and temporary disability benefits) is transferred to the budget no later than the next day after the payment of income (clause 6 of article 226 of the Tax Code of the Russian Federation).

A sample payment order for the payment of personal income tax is given.

Personal income tax and material benefit from a loan from an individual

If an individual has received an interest-free loan from another individual, then there is no income in the form of material benefits from savings on interest. That is, no one needs to pay personal income tax on such a loan.

Since 2018, the taxation procedure has changed personal income tax material benefits on loans (clause 1 clause 1 article 212 of the Tax Code of the Russian Federation (as amended, effective from 01/01/2018)). Thus, a taxable benefit arises when at least one of the following conditions is met:

• a loan was received by an individual from an organization or individual entrepreneur with whom he has an employment relationship;
• a loan received by an individual from an organization or individual entrepreneur who is recognized with him interdependent persons;
• savings on interest is actually financial assistance;
• saving on interest is actually a form of counter-performance by an organization or individual entrepreneur of an obligation to an individual, incl. payment (remuneration) for the goods delivered to them (work performed, services rendered).

True, sometimes material benefits are not subject to personal income tax, even despite the observance of at least one of the above conditions.

When the borrower in any case does not receive a personal income taxable material benefit on the loan

Material benefit is exempt from taxation if two requirements are met (clause 1 clause 1 article 212 of the Tax Code of the Russian Federation):

• The loan agreement states that cash provided to the borrower for the purchase of specific housing or for the construction of housing;
• the borrower submitted to the lender a notice or a certificate from the Federal Tax Service Inspectorate confirming the borrower's right to receive property deduction regarding this property. Moreover, the document from the IFTS must necessarily indicate the details of the loan agreement (clause 2 of the Letter of the Ministry of Finance dated September 21, 2016 No. 03-04-07 / 55231).

How much is recognized as a material benefit on a loan

Interest savings benefits include:

• if the agreement is interest-bearing, then the difference between the amount of interest calculated on the basis of 2/3 of the Central Bank refinancing rate and the amount of interest calculated on the basis of the rate specified in the loan agreement;
• if the agreement is interest-free, then the amount of interest calculated on the basis of 2/3 of the Central Bank refinancing rate.

On what date should the material benefit on the loan be calculated

For the purposes of paying personal income tax, income in the form of material benefits from savings on interest is considered received on the last day of each month during the period for which the loan was issued (clause 7, clause 1, article 223 of the Tax Code of the Russian Federation). Therefore, the tax agent on these dates needs to calculate the material benefit and personal income tax from it.

Personal income tax rate on material benefits on a loan

For what personal income tax rate the material benefit from savings on interest will be taxed, depends on who received the material benefit: a resident or non-resident of the Russian Federation (clause 2, article 207 of the Tax Code of the Russian Federation). Thus, income in the form of material benefits of a tax resident of the Russian Federation will be taxed at a rate of 35% (clause 2 of article 224 of the Tax Code of the Russian Federation), and not a resident - at a rate of 30% (clause 3 of article 224 of the Tax Code of the Russian Federation). That is, in this case non-residents are in a more advantageous position than residents of the Russian Federation.

When issuing loans in foreign currency, material benefits subject to personal income tax may also arise

When obtaining a loan in foreign currency, the borrower receives a material benefit subject to personal income tax, if (clause 2, clause 2, article 212 of the Tax Code of the Russian Federation):

• an interest-bearing loan was issued with a rate of less than 9% per annum (material benefit is the difference between the amount of interest calculated on the basis of 9% per annum and the amount of interest calculated on the basis of the rate specified in the loan agreement);
• an interest-free loan was issued (material benefit is the amount of interest calculated on the basis of 9% per annum);

Accordingly, the lender in such a situation becomes a tax agent for personal income tax.

Material benefit in personal income tax reporting

Information related to income in the form of material benefits on a loan and personal income tax from it must be reflected:

• in certificate 2-NDFL (material benefit from savings on interest corresponds to code 2610 (Appendix No. 1 to the Order of the Federal Tax Service of September 10, 2015 No. ММВ-7-11 / 387@));
• in the calculation in the form 6-NDFL.

Financial benefits and insurance premiums

The material benefit from savings on interest is not subject to insurance premiums (

Often, when obtaining loans from individuals, banks or employers, citizens receive material benefits from savings on interest, which is the taxable income of an individual who pays personal income tax.

Civil legal basis of the loan

The relationship of the parties under the loan agreement is governed by § 1 "Loan" chapter 42 "Loan and credit" Civil Code RF.

Under a loan agreement, one party (the lender) transfers money or other things defined by generic characteristics into the ownership of the other party (the borrower). 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 (clause 1, article 807 of the Civil Code of the Russian Federation).

The loan agreement is considered concluded from the moment of transfer of money or other things. foreign currency and currency values may also be the subject of a loan agreement on the territory of the Russian Federation in compliance with the rules of Art. 140, 141 and 317 of the Civil Code of the Russian Federation.

Registration of the contract

If the borrower is a citizen

Features of granting a loan at interest to a borrower-citizen for purposes not related to entrepreneurial activity, are established by laws (clause 3 of article 807 of the Civil Code of the Russian Federation).

If the loan amount between citizens exceeds at least 10 times the minimum wage established by law, then the contractual relationship between the lender and the borrower is drawn up in a written form of the contract. Otherwise, the loan may be oral.

If the written form of the loan agreement between citizens is not observed, then the debt can be confirmed by a receipt, as indicated by paragraph 2 of Art. 808 of the Civil Code of the Russian Federation and paragraph 1 of the Review judicial practice RF Armed Forces No. 1 (2016), approved by the Presidium of the RF Armed Forces on April 13, 2016.

If the lender is an organization

If the lender is an organization, then the written form of the loan agreement is mandatory, regardless of the amount. The lender has the right to receive interest from the borrower on the amount of the loan in the amount and in the manner specified by the agreement, unless otherwise provided by law or the loan agreement. In the absence of a clause on the amount of interest in the agreement, their amount is determined by the existing place of residence of the lender, and if the lender is an organization - at the place of its location, the bank interest rate (refinancing rate) on the day the borrower pays the amount of the debt or its corresponding part (clause 1 of Art. 809 of the Civil Code of the Russian Federation).

In case of early repayment of an interest-bearing loan, the lender has the right to receive interest from the borrower under the loan agreement, accrued inclusively up to the date of repayment of the loan amount in full or in part.

Civil law basis of the loan agreement

Bank lending means the provision of funds to the borrower by a bank or credit institution on the terms of repayment, urgency and payment. With bank lending, a loan agreement is concluded, to which § 2 of Chapter 42 “Loan and Credit” is devoted in the Civil Code of the Russian Federation.

According to paragraph 1 of Art. 819 of the Civil Code of the Russian Federation, a loan agreement is understood as an agreement according to which a bank or other credit organisation(creditor) undertakes to provide funds (credit) to the borrower in the amount and on terms, stipulated by the agreement, and the borrower assumes the obligation to return the amount received "loan" and pay interest on it.

Legal regulation loan agreement is carried out not only on the basis of the rules on the loan agreement, but also the rules on the loan agreement in the part that does not contradict the essence of the loan agreement.

A loan agreement is always concluded in writing. Failure to comply with this requirement leads to the invalidity of the loan agreement. Such an agreement is considered void, which is established by Art. 820 of the Civil Code of the Russian Federation.

Definition of material benefit

Since the topic of the article deals with material benefit, then first of all it is necessary to determine its concept, which, we note, is not in the Tax Code of the Russian Federation.

Meanwhile, in paragraph 3 of the Decree of the Government of the Russian Federation of March 2, 2006 No. 113 “On Approval of the Regulations on the Establishment of Measures to Prevent the Emergence of a Conflict of Interest in Relation to officials federal bodies executive power involved in the process of regulation, control and supervision in the field of mandatory pension insurance, officials pension fund Russian Federation and members of the Public Council for Investing Funds pension savings» states that a material benefit is an economic benefit in monetary or natural form, which can be estimated and defined as income in accordance with tax legislation Russian Federation.

The principles for determining income for tax purposes are enshrined in Art. 41 of the Tax Code of the Russian Federation, which defines income as an economic benefit in cash or in kind, taken into account if it is possible to evaluate it and to the extent that such benefit can be assessed, and determined (in the context of this article) in accordance with Chapter 23 "Tax on personal income" of the Tax Code of the Russian Federation.

Therefore, from the point of view of personal income tax, material benefit should be understood as the economic benefit of an individual, which can be recognized as his income if the following conditions are met:

to be received in cash or in kind; its size can be estimated; it can be determined in accordance with the rules of Chapter 23 of the RF Tax Code.

When material benefit is exempt from personal income tax

Based on paragraph 1 of Art. 210 of the Tax Code of the Russian Federation, the income of an individual in the form of material benefits is included in the tax base for personal income tax.

Calculation features tax base when receiving income in the form of material benefits, Art. 212 of the Tax Code of the Russian Federation.

One of the types of material benefit subject to personal income tax is the material benefit from savings on interest for the use by the taxpayer of borrowed (credit) funds received from organizations or individual entrepreneurs. However, there are exceptions in which material benefits are exempt from personal income tax (see Chart 1).

In the last two cases, the material benefit is exempt from taxation, provided that the taxpayer has the right to receive a property tax deduction, established by paragraphs. 3 p. 1 art. 220 of the Tax Code of the Russian Federation, confirmed by the tax authority in the manner prescribed by paragraph 8 of Art. 220 of the Tax Code of the Russian Federation. Similar clarifications are contained in the letters of the Ministry of Finance of Russia dated September 21, 2016 No. 03-04-07 / 55231, dated August 5, 2016 No. 03-04-07 / 46125, dated June 16, 2016 No. 03-04-05 / 35061, dated 18.03.16 No. 03-04-06/15118.

The specified exemption applies even if the taxpayer for any reason did not use the property deduction for the acquired property (letter of the Ministry of Finance of Russia dated September 4, 2009 No. 03-04-05-01 / 671).

The exemption of such material benefits from taxation is also not affected by the start of using the property deduction (letters of the Ministry of Finance of Russia dated July 24, 2013 No. 03-04-05 / 29212, dated February 9, 2012 No. 03-04-05 / 7-136) .

The material benefit is also exempt from personal income tax if the borrower continues to repay his loan obligations after the property tax deduction has been fully used. This follows from the provisions of p.p. 1 p. 1 art. 212 of the Tax Code of the Russian Federation and is confirmed by letters of the Ministry of Finance of Russia dated December 16, 2014 No. 03-04-05 / 64921, dated April 8, 2014 No. 03-04-05 / 15908, dated August 8, 2012 No. ED-3-3 /2805.

Documents confirming the right to exemption from personal income tax income in the form of material benefits

A document confirming the taxpayer's right to receive a property tax deduction, established by paragraphs. 3 p. 1 art. 220 of the Tax Code of the Russian Federation, is a notification, the form of which was approved by Order of the Federal Tax Service of Russia dated January 14, 2015 No. ММВ-7-11/3@ “On Approval of the Form of a Notification Confirming the Taxpayer’s Right to Property Tax Deductions Provided for by Subparagraphs 3 and 4 of Paragraph 1 of Article 220 of the Tax Code of the Russian Federation” (hereinafter referred to as the Notification).

At the same time, in order to exempt taxpayers' income from taxation in the form of material benefits from savings on interest for the use of borrowed (credit) funds in accordance with the provisions of Art. 212 of the Tax Code of the Russian Federation, a certificate can be used, the form of which is recommended by the letter of the Federal Tax Service of Russia dated January 15, 2016 No. BS-4-11 / 329@ “On sending the recommended form of a certificate” (hereinafter referred to as the Certificate). At the same time, the Certificate, in the opinion of the Ministry of Finance of Russia, set out in letter No. 03-04-07/55231 dated September 21, 2016 (hereinafter referred to as Letter No. 03-04-07/55231), may be issued by the tax authority for submission to tax agents, including employers. It should be noted that the tax authorities also agree with this opinion, as evidenced by the letter of the Federal Tax Service of Russia dated October 4, 2016 No. BS-4-11 / 18723@ “On the taxation of personal income tax”, brought to the lower tax authorities.

This letter of the Ministry of Finance of Russia also states that the Notice and the Certificate must contain the details of the loan (credit) agreement, on the basis of which the borrowed (credit) funds were provided, spent on the acquisition of real estate, in respect of which a property tax deduction was granted.

In the absence of the details of the loan (credit) agreement in the specified documents, these documents cannot be the basis for exemption from taxation of income in the form of material benefits from savings on interest for the use of borrowed (credit) funds, since they do not confirm the fact that the loan (credit) at the repayment of which a material benefit is determined, was spent on the acquisition real estate in respect of which the taxpayer has been granted a property tax deduction.

In addition, Letter No. 03-04-07 / 55231 states that, starting from the month the taxpayer provides a document confirming his right to receive a property tax deduction, the amounts of personal income tax withheld by the tax agent from income in the form of material benefit from the beginning tax period, are subject to offset when calculating the amounts of personal income tax on an accrual basis on the amounts of the taxpayer's income subject to taxation.

The amount of personal income tax calculated and withheld from the beginning of the tax period up to the month inclusive (if the tax in it has already been calculated and withheld), in which the Notice or Certificate was provided, is excessively transferred to the budget.

Based on paragraph 1 of Art. 231 of the Tax Code of the Russian Federation excessively withheld by a tax agent from the taxpayer's income amount of personal income tax is subject to return by the tax agent on the basis of a written application of the taxpayer.

Personal income tax from material benefits in the form of a loan from organizations or individual entrepreneurs

So in general case the material benefit from savings on interest for the taxpayer's use of borrowed (credit) funds received from organizations or individual entrepreneurs is a taxable income of an individual. Moreover, as indicated in the letter of the Ministry of Finance of Russia dated June 23, 2015 No. 03-11-11 / 36210, it is determined only in cases where the taxpayer saves on interest for the use of borrowed (credit) funds received from organizations and merchants.

From paragraph 4, paragraph 2, Art. 212, paragraph 4 of Art. 226 of the Tax Code of the Russian Federation it follows that the material benefit from savings on interest for the use of borrowed (credit) funds is determined by tax agent- an organization or a merchant that has provided a loan (credit) to a taxpayer. From the amount of the material benefit of the taxpayer, the tax agent must calculate personal income tax, withhold it and transfer the tax to the budget.

According to paragraph 2 of Art. 212 of the Tax Code of the Russian Federation, when a taxpayer receives income in the form of a material benefit, the procedure for determining the tax base depends on the currency in which the taxpayer received a loan (credit) - in Russian or foreign (see Chart 2).

Personal income tax from a loan in foreign currency

question about calculation of personal income tax from income in the form of material benefits from savings on interest for the use of borrowed (credit) funds, denominated in foreign currency, was considered by the Ministry of Finance of Russia in a letter dated April 7, 2016 No. 03-04-06 / 19792. It states that, in accordance with paragraph 5 of Art. 210 of the Tax Code of the Russian Federation, income (expenses accepted for deduction in accordance with Articles 214.1, 214.3, 214.4, 214.5, 218-221 of the Tax Code of the Russian Federation) of a taxpayer, denominated (nominated) in foreign currency, are recalculated into rubles at official exchange rate Central Bank of the Russian Federation, established on the date of actual receipt of these incomes (the date of actual implementation of expenses).

Thus, the calculation of the amount of tax is made by tax agents at the rate established on the date of actual receipt by the taxpayer of the specified income.

At what point is a benefit recognized as income?

According to p.p. 7 p. 1 art. 223 of the Tax Code of the Russian Federation when receiving income in the form of material benefits received from savings on interest when receiving borrowed (credit) funds, the date of actual receipt of income is determined as the last day of each month during the period for which the borrowed (credit) funds were provided.

The specified procedure for receiving income in the form of material benefit is applied only from 01/01/16, this is indicated by Federal Law No. 113-FZ dated 05/2/15 "On Amendments to Parts One and Two of the Tax Code of the Russian Federation in order to increase the responsibility of tax agents for non-compliance with the requirements of legislation on taxes and fees.

Therefore, to determine the material benefit of the taxpayer and calculate the amount from it personal income tax the agent is due on the last day of each month during the entire period of use by an individual of borrowed funds (letter of the Federal Tax Service of Russia dated November 23, 2016 No. BS-4-11 / 22246@).

According to the letters of the Ministry of Finance of Russia dated March 18, 2016 No. 03-04-07 / 15279, dated April 11, 2016 No. 03-04-06 / 20463 from January 1, 2016 income in the form of material benefits received from savings on interest for the use of borrowed (credit) funds, is determined on the last day of each month in which the loan (credit) agreement was in effect, regardless of the date such a loan (credit) was received, and also regardless of which day of the month the debt obligation was terminated . The tax authorities also agree with this opinion, which is confirmed by the letter of the Federal Tax Service of Russia dated March 29, 2016 No. BS-4-11 / 5338@ “On taxation of personal income”.

At the same time, in letters dated 10/17/16 No. 03-04-07 / 60359, dated 04/11/16 No. 03-04-06 / 20463, the Ministry of Finance of Russia noted that if until 2016 the debt on an interest-free loan was not repaid , then income in the form of material benefits subject to personal income tax, does not arise in the tax periods preceding the tax period of 2016.

If the taxpayer (borrower) is a resident of the Russian Federation, then the tax is calculated by the tax agent at a rate of 35%, but if the borrower is not a resident, a tax rate of 30% is applied, as indicated in paragraphs. 2 and 3 Art. 224 of the Tax Code of the Russian Federation, respectively.

Material benefit with a foreign mortgage

Today, many Russian citizens purchase real estate abroad, especially since compared to Russian mortgage lending foreign mortgage due to low interest looks quite attractive.

Meanwhile, in Russia, few people know that foreign mortgages with low interest leads to the formation of income in the form of material benefits, taxed at a rate of 35%. At the same time, as explained in the letter of the Federal Tax Service of Russia dated May 17, 2016 No. BS-4-11 / 8712 “On taxation on personal income”, in this case the taxpayer is obliged to independently declare the income received and pay the tax.

Financial benefit from late payments

Note that borrowers do not always fulfill their contractual obligations to repay loans and credits in good faith, allowing for delays in payments.

In order to reduce their risks, lenders and banks provide for this case in the contracts a condition that, in case of late payment, the borrower pays interest in an increased amount, which, by the way, is not prohibited by law.

Recall that according to paragraph 1 of Art. 811 of the Civil Code of the Russian Federation, unless otherwise provided by law or the loan agreement, in cases where the borrower does not return the loan amount on time, interest is payable on this amount in the amount provided for in paragraph 1 of Art. 395 of the Civil Code of the Russian Federation, from the day when it was supposed to be returned until the day it was returned to the lender, regardless of the payment of interest provided for in paragraph 1 of Art. 809 of the Civil Code of the Russian Federation.

At the same time, the taxpayer and the tax agent must understand that the contractual interest in case of delay in payments remains the same, which does not increase by the amount of penalty interest. After all, interest under Art. 395 of the Civil Code of the Russian Federation represent a measure of the borrower's responsibility for the late payments, and therefore the material benefit from savings on interest will remain the same.

If the lender is an employer

If a loan is issued to an individual by his employer, then the amount of the calculated tax is withheld by him as a tax agent at the expense of any cash income paid to the individual (borrower). At the same time, the amount of tax withheld cannot exceed 50% of the amount of income paid in cash (clause 4 of article 226 of the Tax Code of the Russian Federation, letter of the Ministry of Finance of Russia of December 11, 2015 No. 03-04-06 / 72664).

Not later than the day following the day of payment of the monetary income from which the tax on material gain was withheld, the tax agent is obliged to transfer this tax to the budget, which follows from paragraph 6 of Art. 226 of the Tax Code of the Russian Federation.

If it is impossible to withhold the amount of tax from the borrower during the year, the employer-lender must, no later than March 1 of the year following the expired tax period, notify the borrower and the tax authorities at the place of its registration in writing about the impossibility of withholding tax, indicating the amount of income from which the tax and the amount of the tax itself were not withheld. This is indicated as paragraph 5 of Art. 226 of the Tax Code of the Russian Federation, as well as the explanations of the Ministry of Finance of Russia, set out in a letter dated 14.01.16 No. 03-04-06 / 636.

Banks lending to their employees are guided by the same rules. If the material benefit from savings on interest is received by the borrower from a bank that is not his employer, then the borrower must independently calculate the tax and pay it to the budget by submitting to tax office declaration in the form 3-NDFL, which follows from paragraph 4 of Art. 226 and paragraph 1 of Art. 229 of the Tax Code of the Russian Federation.

Minimum wage for 2016-2017

From July 1, 2016, the minimum wage is 7,500 rubles. per month, as indicated by Art. 1 of the Federal Law of June 19, 2000 No. 82-FZ (as amended on June 2, 2016) “On the Minimum Wage” (hereinafter - Law No. 82-FZ). At the same time, from July 1, 2017, in connection with the adoption of Federal Law No. 460-FZ of December 19, 2016 “On Amendments to Article 1 of the Federal Law “On the Minimum Wage”, the minimum wage will increase to 7,800 rubles. per month. At the same time, from Art. 5 of Law No. 82-FZ, it follows that the calculation of payments for civil law obligations established depending on minimum size wages, is made from 1.01.01 on the basis of a base amount equal to 100 rubles.

Refinancing rate

From January 1, 2016, the Bank of Russia does not set an independent value of the refinancing rate, it is equated to the value of the key rate of the Bank of Russia, determined on the corresponding date (Instruction of the Bank of Russia dated December 11, 2015 No. 3894-U “On the refinancing rate of the Bank of Russia and the key rate of the Bank of Russia). According to the information published on the website www.cbr., on April 28, 2017, the Board of Directors of the Bank of Russia decided to reduce key rate up to 9.25% per annum.

When an organization (lender) issues a loan to its employee or other individual (borrower) that has an interest rate below 2/3 of the bank refinancing rate in a given territory, the borrower has a material benefit in the form of unpaid interest.

Such income in most cases is subject to tax, which must be calculated and paid to the tax office.

What is it and when does it occur

Material benefit under a loan agreement - the amount formed upon signing an agreement on an interest-free or preferential loan, calculated as savings by the borrower on interest payments. Of it, 35% is paid as personal income tax, which has been approved since the beginning of the 90s.

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The reason for introducing such a norm into the legislation was the policy of some companies on tax evasion: registration of salaries in the form of interest-free loans, signing a loan agreement for relatives, etc.

Saving money when applying for a loan national currency may occur when:

• interest-free loan;
• a loan with interest less than 2/3 of the bank refinancing rate in the given territory.

When borrowing in foreign currency, profit arises during an interest-free agreement and an agreement with a rate of less than 9% per annum.

Financial gain can only come from money loans. In the case of a property loan, it is not determined.

In order for the provision of such a service as an interest-free or preferential loan not to cost the borrower more than a loan with ordinary interest, it is necessary to know how the material benefit and tax on it are calculated.

Calculation

Material benefit arises from the date of payment of interest on the loan (with a preferential loan). When concluding an interest-free agreement, the date of formation of material benefits tax code not installed.

Therefore, you can choose one of the options:

• the moment of full or partial repayment of the loan;
• daily during the tax period;
• end date of the contract;
• the last day of the tax period.

For each loan option, the amount of material benefit is calculated separately.

Calculation of material benefits on an interest-free loan

The material benefit is calculated according to bank rate refinancing at the time of loan repayment. With , this amount is calculated separately at each time the payment is made.

Formally, the material benefit (MB) can be expressed as follows:

MV \u003d PS x NW / 365 d. x SK,

PS– marginal refinancing rate (2/3);
NW- loan amount;
SC

It is also worth taking into account that with a loan with repayment on the last day of the contract, material benefits arise only in the month of repayment and are accrued on the entire loan amount.

Loan with preferential interest

Determining the material benefit for a loan with a preferential interest rate (below two-thirds of the refinancing rate) is carried out in almost the same way as for demon interest-bearing loan, only the difference of 2/3 of the bank rate with the contract rate (SD) is taken as a percentage:

MW \u003d (PS-SD) x SZ / 365 d. x SK

Interest-bearing loan at the enterprise

The company has the right to issue loans to its employees at interest rates that are less than bank loans.

If the organization's interest rate is less than two-thirds of the refinancing rate, then the resulting difference is a material benefit for the borrower, which should be subject to personal income tax - 35% of the benefit amount. Most often it is deducted from the salary.

Material benefit on a loan in foreign currency

When the interest rate on a loan in foreign currency is below 9% per annum, the resulting difference is a material benefit. According to the legislation, income in foreign currency must be converted into rubles at the rate of receipt of this income. That is, on the day of repayment of the loan or part of it.

To calculate the material benefit on a foreign currency loan, you must have data on:

• loan amount;
• interest rate;
• days of (actual) use of borrowed money;
• tax period;
• exchange rate of the Bank of Russia on the date of receipt of income.

The calculation of material benefits under a loan agreement can be calculated using the formula:

MW \u003d SZ x CV x (9% - PZ) / 365 d. x SK,

MV- material benefit;
NW- loan amount;
HF– the exchange rate on the date of receiving the benefit;
PZ- interest on the loan;
SC– term of using the loan, days.

With an interest-free loan, the formula will be almost the same:

MW \u003d SZ x CV x 9% / 365 d. x SC

That is, personal income tax should be paid from 9% per annum of the loan amount on the date of its partial or full return.

Buying a home

B defines the concept of material benefit and the cases of its accrual, with the exception of which is the saving of interest on a loan issued for the construction or purchase of housing, acquisition land plots etc.

In other words, the material benefit from a home loan is not subject to taxation.

But the borrower must have an approved document that will testify to his right to deduct property. This form is approved by law and is mandatory.

Without this document the loan is considered to be simply cash and income tax will be charged on it.

From the date of provision by the lender property law there will be no material benefit, therefore, the tax will not need to be paid according to the rules of an interest-free or soft loan.

Therefore, in order not to apply for a tax refund from the budget, one should not rush with its deduction.

Loan to employee, individual

An organization that issues a loan to its employee without interest or at preferential terms becomes his tax agent. She calculates the material benefit to the borrower, withholds personal income tax on it and transfers this money to the budget.

The material benefit arises for the employee with each loan payment and can be just once a month, or one-time when paying off the entire amount of the debt.

If during one tax period (1 year) there were no payments on the loan, then there was no material benefit.

The lender company more often withholds personal income tax from the employee's salary, but this amount should not exceed 50% of the amount of payments.

As a withholding agent, the lending organization maintains records of disbursed funds in tax register employee, and also provides it to the tax authorities within the period established by law.

The only difference when issuing a loan to an employee and an individual who is not an employee of the company is that personal income tax can be withheld and paid to the budget only from the employee. Also in accounting it is displayed differently.

The issuance of a loan to an employee is carried out in account 73: debit 73-1 credit 50 (51), and the return is vice versa. Loan interest is indicated in the credit of account 91-1. is financial investment, since it brings economic profit to the enterprise, therefore it should be carried out in sub-account 58-3.

Loan interest is posted through debit 76 credit 91-1.
Interest-free loans are not investments, therefore they are displayed in account 76.

Between legal entities

If an interest-free loan agreement is concluded between legal entities, then the borrowing organization does not pay tax, since it does not receive material benefits.

This comes out of ch. 25 of the Tax Code of the Russian Federation, which indicates all types of income subject to taxation, among which there is no material benefit when concluding an interest-free or preferential loan agreement. Therefore, the borrower does not need to pay interest.

When entity is UTII, its taxation is determined by local authorities, which may tax certain areas of activity. But even in this case, the material benefit from the loan cannot be subject to taxation.

The lender organization, according to the law, is not subject to VAT when issuing a loan, which is indicated in. All funds that are given or received from the loan account are not taken into account in the item of expenses or income of the lender, therefore they are not taxed.

The interest that the borrower pays for the use of the loan is non-operating income organizations. Each loan must be accounted for separately, and interest on it is included in the list of income on a monthly basis.

If the debt is returned ahead of schedule or after the expiration of the contract, income is taken into account on the date of return.

When the loan is returned to the cash desk of the company, interest income is accrued immediately.

personal income tax

The calculation of personal income tax material benefits from savings on interest on the loan is determined by Art. 212 of the Tax Code of the Russian Federation.

This income is taxed at the rate of:

• 35% when the borrower is a Russian tax resident;
• 30% when the borrower is not a Russian tax resident.

A tax resident is an individual who stays in Russia for at least 183 consecutive days per year.

When a loan is issued by an organization to its employee, the amount of personal income tax from the received material benefit is automatically withheld from each salary and transferred to the budget.

But this amount should not be more than 50% of the payment itself ( wages). In the 2-NDFL certificate, this tax from material benefits is carried out through code 2610. The certificate is transferred to the Federal Tax Service Inspectorate within the time limits established by law.

When a loan is granted to a non-employee of the organization, a 2-NDFL certificate is drawn up without withholding funds and transferred to the IFTS and the borrower.

However, you must notify in advance tax authority that personal income tax is not charged from the borrower, and the borrower that he needs to pay tax.

Also, material benefits in some cases are not taxed, which is indicated in Art. 212 of the Tax Code of the Russian Federation. This always applies when issuing a loan to a legal entity.

Material benefit on a loan to an individual is not subject to personal income tax in the following cases:

• for housing construction;
• for the purchase of a residential property or part of it (houses, apartments, rooms, etc.);
• for the full or partial acquisition of land for the construction of a residential facility;
• for the purchase of a plot with a residential building;
• to refinance loans that were issued for the construction or purchase of a residential property, land plot for the construction of a house, a plot with a house, a share in construction, etc. At the same time, the bank providing initial loan must be on the territory of the Russian Federation.

In order to confirm the purpose of his loan, the borrower must provide the lender with a document certifying his right to a tax deduction in connection with the acquisition of housing or land for its construction.