Interest-bearing loan between legal entities. Credits and loans: “profitable” interest accounting Minimum rate under an interest-bearing loan agreement

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Every company sometimes needs to raise additional funds. They may be needed to purchase goods, update or purchase funds, or to get out of a difficult situation.

Getting a loan for a business is not easy, and money is often sought from other companies that have available funds.

Often, affiliates or long-time partners become creditors, but specialized companies can also act as creditors.

Main provisions of the conclusion

A loan is still not a loan, although it has certain similarities with banking product. Under a loan agreement, one company can transfer funds or things that have generic characteristics (make, model) to another.

Agreements may provide for the payment of remuneration to the lender for the use of funds or be interest-free. Discussion of the specific terms of the transaction must take place through negotiations before the conclusion of the contract.

Any legal entity can issue loans. There are specialized organizations on the market that are ready to provide financial support to various types of businesses.

It is also not uncommon for loans to be received from other companies that are part of a group of companies or from partners with whom there are long-standing relationships.

The lender's remuneration can be expressed as a percentage accrued for a certain period of use Money, or expressed in a specific amount for the entire term of the contract or a certain period of use of borrowed property or money.

Required terms

The procedure for issuing and receiving loans is described in sufficient detail in the legislation and most companies do not experience any major problems with completing the transaction.

But some specific terms still appear:

Requirements put forward to the parties

If the parties to the transaction are two legal entities, then according to the law there is only one requirement.

An organization acting as a borrower or lender must be officially registered, its activities must not be suspended, and no bankruptcy or liquidation procedures are being carried out against it.

Important! For some special institutions, the issuance of various loans may be completely prohibited or require additional permission from the founders. This point is specifically stated in the organization’s Charter.

The lender can independently set almost any requirements for borrowers, guided by its own internal policies.

Let's consider what conditions the borrower must meet in most cases:

conducting business for at least 3-12 months;
no losses;
the absence of decisions regarding the suspension of activities;
bankruptcy or liquidation procedures should not be carried out in relation to it;
absence or minimal debt on various taxes, fees and other mandatory payments in favor of the state.

In some cases, lenders may consider a borrower with debts tax payments and other fees, if he has an agreed installment payment plan with the relevant government agency.

Legal acts

IN general case, the parties to a loan transaction between legal entities must be guided, first of all, .

It contains the very concept of a loan, describes the possible types and main conditions that should be stipulated in the contract.

If the lender is a microfinance or microcredit organization, then their activities are also subject to Federal Law.

These organizations must also take into account various letters, resolutions and regulations Central Bank and the Ministry of Finance of the Russian Federation.

Video: loans and borrowings

Interest-bearing loan agreement between legal entities (sample)

According to the Civil Code, the parties can agree on all terms of the transaction through preliminary negotiations.

This usually happens if the lender is not a microfinance company engaged in business lending on a professional level.

The parties must record all the results of negotiations in a paper agreement, which will further regulate the relationship between them related to the transaction.

The agreement must include the following information:

Details of the parties.
Subject of the agreement (description of things, their cost or specific amount of loan).
The amount of the lender's remuneration (if the agreement is interest-bearing).
Return procedure.
Loan term (if the agreement is not open-ended).
Penalties.
Signatures of the parties.

The contract may also include various additional conditions relating to the security and purposes of the loan, the procedure for early repayment or extension of the term, and others.

All parties must discuss them at the negotiation stage and only then include them in the agreement.

Download sample contract interest-bearing loan between legal entities you can use this.

What are the rights and obligations of the parties

It is in the agreement that the parties record all the rights and obligations that each of them has as a result of concluding a loan transaction. Typically, the main responsibilities fall on the borrower, and the lender only has rights.

Let's consider what basic rights the lender can receive under the agreement:

We also present the obligations and rights of the borrower, which are most often found in contracts:

In some cases, the agreement may provide for other rights and obligations of the parties. For example, the borrower may be required to provide full reporting about my economic activity to the lender every quarter.

Payment schedule

If the agreement provides for more than 1 payment to repay the debt and pay interest, and it is not of an open-ended nature, then a payment schedule must be drawn up for it.

This document records a specific amount and the date by which it must be transferred by the borrower to the lender.

Important! The payment schedule is an integral part of the agreement and must be signed by both parties.

In case of partial early repayment, the payment amount is subject to change and the parties must agree and sign a new schedule.

If a permanent loan is issued, the borrower must repay it within 30 days from the date of receipt of the corresponding request in writing from the lender. Interest, if any, must be paid in accordance with the terms of the agreement.

Debt collection under a transaction

Lenders often face a situation where the borrower stops paying under the agreement.

In this case, they have the right to charge a fine for each day of delay and demand immediate repayment of all loan amounts and interest for the actual time of use borrowed money. But borrowers are in no hurry to fulfill such demands voluntarily.

If payments under the loan agreement have stopped, the lender has several options to collect the amount of debt:

Each option has its own advantages and disadvantages. For example, going to court may require quite a lot of time, and the effect of collection will not always be comparable to expected, because the borrower simply may not have sufficient funds and property to repay the debt.

When involving collectors and lawyers, the lender will have to spend money on their services and it is also not always possible to predict the result.

Often, concluding an assignment agreement is the easiest option for the creditor to ensure the return of at least part of the debt by transferring it to professional debt collectors.

But you should understand that most likely no one will buy the contract for 100% of the loan amount, and you will have to put up with a rather large discount.

Minimum and maximum percentage

The legislation of the Russian Federation practically does not limit the minimum and maximum interest rates applied on loans between legal entities.

Unlike consumer loans the specific rate is agreed upon by the parties at the negotiation stage, although some points should be taken into account.

Too high an interest rate can lead to the fact that the transaction may be considered enslaving, and subsequently not valid. This is typical for mini-loans issued at several hundred percent per annum.

If there is no interest under the agreement or is lower than the refinancing rate by more than 20%, the option cannot be ruled out that the borrower will have to document that there was no material benefit from such savings, and the lender will have to justify the economic sense.

In some cases, the parties to the transaction will have to defend their position in court.

Offers from organizations

There are a number of companies that provide loans to legal entities. Typically these are microfinance and microcredit companies.

Some of them work within government programs assistance to SMEs, and can offer rates quite comparable to bank ones or even lower, and the conditions will be much simpler.

It is worth considering that when obtaining a loan, it is often necessary to provide a guarantee from the business owners and it is highly desirable to have liquid collateral (goods in circulation, real estate).

Comment. The lower the rate, the more attention is paid to checking the borrowing company and the more documents are requested.

Let's compare the offers of some organizations on loans for companies in the table:

Creditor organization	Peculiarities	Bid	Maximum period, rubles	Maximum amount, rubles
Flow	the loan is issued under the P2P lending scheme through Potok.Digital LLC (affiliated with Alfa Bank)	from 20% per annum	6 months	2 million
Sverdlovsk Regional Entrepreneurship Support Fund (MFO)	issue loans with government support	10% per year for all borrowers	3 years	3 million
Finance Department (IFC)	payments must be made weekly	calculated individually	1 year	1 million

Tax consequences

Often, the taxation of an interest-bearing loan between legal entities raises many questions, especially if the creditor is not a specialized company, but a legal entity that has decided to make a one-time financial investments to a specific enterprise.

In the simplest case, the borrower simply includes interest on the loan as expenses and reduces his tax base, and the lender includes them in profit, accordingly increasing the tax base, pays income tax on them, etc. or single tax at application of the simplified tax system. But a seemingly simple scheme often fails in practice.

Some tax inspectorates when it is discovered that a loan has been received at a very low interest rate, they begin to try to prove that the borrower has gained material benefits from saving on interest, which should be taken into account as profit.

A. M. Khomich, senior expert at FBK Legal

One of the traditional forms of financing holding structures is intra-holding loans. However, the provision of loans to related parties is associated with certain tax risks due to the application of transfer pricing rules. Let's consider the indicated tax risks and possible ways to minimize them.

Let's give a conditional example. The loan deal was concluded between two Russian related parties under the following conditions:

the loan is provided in rubles;

funds are provided to the borrower in installments;

interest for the use of borrowed funds is subject to accrual on each part of the loan amount provided to the borrower;

interest for the use of borrowed funds is accrued monthly during the entire period of use by the borrower of the loan amount on the actual balance of the debt for each part of the loan amount as of the beginning of each calendar day of the current month at the rate of 1/365 (1/366) of the annual interest rate (8 .25%) for each day of use of borrowed funds.

By virtue of paragraph 1 of Art. 2 and Art. 421 of the Civil Code of the Russian Federation, the parties are free to establish their rights and obligations on the basis of the contract and to determine any terms of the contract that do not contradict the law.

Unless otherwise provided by law or the loan agreement, the lender, in accordance with clause 1 of Art. 809 of the Civil Code of the Russian Federation has the right to receive interest from the borrower on the loan amount in the amount and in the manner specified in the agreement.

From the totality of the above rules it follows that the parties to the loan agreement have the right to establish any amount of interest for the use of borrowed funds.

For profit tax purposes, income in the form of interest received under loan agreements is taken into account as part of non-operating income on the basis of clause 6 of Art. 250 of the Tax Code of the Russian Federation, expenses in the form of interest paid for the use of borrowed funds are included in non-operating expenses on the basis of sub. 2 p. 1 art. 265 Tax Code of the Russian Federation.

Features of accounting for interest on debt obligations are established by Art. 269 of the Tax Code of the Russian Federation. In accordance with paragraph 1 of this article, debt obligations mean loans, commodity and commercial loans, loans, bank deposits, bank accounts or other borrowings, regardless of the method of their execution.

For debt obligations of any kind Interest calculated on the basis of the actual rate is recognized as income (expense), unless otherwise established by Art. 269 of the Tax Code of the Russian Federation.

For debt obligations of any type arising as a result of transactions recognized as controlled in accordance with the Tax Code of the Russian Federation, income (expense) is interest calculated on the basis of the actual rate, taking into account the provisions of Section V1 of the Tax Code of the Russian Federation, unless otherwise established by Art. 269 of the Tax Code of the Russian Federation.

Thus, the procedure for recognizing interest on debt obligations depends on whether the transactions that resulted in such debt obligations are recognized as controlled for tax purposes or not.

Peculiarities of recognition of interest on debt obligations arising as a result of transactions that do not meet the criteria for recognizing them as controlled in accordance with the Tax Code of the Russian Federation, Art. 269 of the Code are not provided for (with the exception of interest on those debt obligations, the debt on which for the purposes of Chapter 25 of the Tax Code of the Russian Federation is recognized as controlled).

Consequently, interest on debt obligations arising as a result transactions not recognized as controlled for tax purposes, are taken into account as part of non-operating income (expenses) in the amount calculated based on the actual rate established by the relevant agreement.

Let us note that, establishing the right of the taxpayer to recognize interest on these debt obligations based on the actual rate, paragraph. 2 p. 1 art. 269 of the Tax Code of the Russian Federation does not contain any indication of the need to apply in this case the provisions of Section V1 of the Tax Code of the Russian Federation. This means that when recognizing interest on debt obligations arising as a result of transactions that are not recognized as controlled in accordance with the Tax Code of the Russian Federation, the actual rate is not subject to verification for its compliance with the market level.

Features of the recognition of interest on debt obligations arising as a result of transactions recognized in accordance with the Tax Code of the Russian Federation as controlled transactions are established in clause 11 of Art. 269 of the Tax Code of the Russian Federation, depending on the grounds for recognizing such transactions as controlled.

admit income

admit consumption interest calculated based on the actual rate on such debt obligations, if this rate:

Thus, since 2014, transactions between related parties, the place of registration of all parties to which is the Russian Federation, are recognized as controlled if the amount of income from such transactions for the corresponding calendar year exceeded 1 billion rubles.

According to paragraph 9 of Art. 10514 of the Tax Code of the Russian Federation, the amount of income from transactions for a calendar year for the purposes of applying this article is determined by adding the amounts of income received from such transactions with one person (interdependent persons) for the calendar year, taking into account the procedure for recognizing income established by Chapter 25 of the Tax Code of the Russian Federation.

In addition, by virtue of the direct instructions of paragraph 11 of Art. 10514 of the Tax Code of the Russian Federation, recognition of transactions as controlled is carried out taking into account the provisions of paragraph 13 of Art. 1053, according to which the rules provided for in Section V1 of the Code apply to transactions that entail the need for at least one party to take into account income, expenses and (or) the cost of extracted minerals, which leads to an increase and (or) decrease tax base for taxes provided for in paragraph 4 of Art. 1053 Tax Code of the Russian Federation.

Therefore, in order to recognize controlled transactions when providing loans, you should be guided by the provisions of sub-clause. 10 p. 1 art. 251 and paragraph 12 of Art. 270, as well as paragraph 6 of Art. 250 and similar 2 p. 1 art. 265 of the Tax Code of the Russian Federation, establishing the specifics of determining income and expenses under loan agreements.

Thus, a transaction concluded by a lender to provide a loan to a borrower who is a related party with him will be recognized as controlled for tax purposes if the amount of income from all transactions between these persons, including income in the form of interest under the loan agreement, exceeds 1 billion for the corresponding calendar year rub. If the specified amount threshold is not exceeded, the analyzed loan transaction will not be considered controlled.

It is necessary to take into account that when calculating the established sub. 1 item 2 art. 10514 of the Tax Code of the Russian Federation, the amount threshold should be based on the market level of prices for transactions and, accordingly, take into account any income (profit, revenue) that could have been received by one of the interdependent persons under such transactions, but due to this difference was not received by them. In relation to loan transactions, this means that if the interest rate established by the loan agreement deviates from the market level, the amount of income from such transactions for the purpose of recognizing them as controlled should be determined based on the market, and not on the actual level of the interest rate.

The validity of this conclusion is confirmed by the official position of the Russian Ministry of Finance on the issue of determining the amount of income for a calendar year for the purpose of recognizing controlled transactions for the provision of interest-free loan between interdependent persons, according to which any income (profit, revenue) that could have been received by one of the interdependent persons under such transactions, but due to the specified difference was not received by him, must be taken into account for tax purposes for this person. At the same time, the financial department notes that when determining the amount of income from transactions federal body of the executive branch, authorized for control and supervision in the field of taxes and fees, has the right to check the compliance of the amounts of income received from transactions with the market level, taking into account the provisions of Chapters 142 and 143 of the Tax Code of the Russian Federation (see, for example, letters of the Ministry of Finance of Russia dated October 2, 2013 No. 03 -01-18/40821, dated October 5, 2012 No. 03-01-18/7-137, dated July 18, 2012 No. 03-01-18/5-97 and dated November 25, 2011 No. 03- 01-07/5-12).

As noted earlier, the procedure for recognizing income in the form of interest on loans for tax purposes depends on whether the transaction to provide the corresponding loan is recognized as controlled or not.

, That lender will have the right to recognize as part of non-operating income the amount of interest calculated based on the actual rate under the loan agreement, provided that this rate exceeds 0% key rate Central Bank of the Russian Federation for the period from January 1 to December 31, 2015 and 75% of the key rate of the Central Bank of the Russian Federation - starting from January 1, 2016.

Under the terms of the example under consideration, the interest rate established by the loan agreement is fixed and is 8.25%. Therefore, for the purpose of calculating the minimum value of the interval of maximum interest rates on debt obligations, above which income in the form of interest on the loan will be recognized by the lender based on the actual rate, the key rate of the Central Bank of the Russian Federation should be understood as the corresponding rate in effect on the date of raising funds.

Under the terms of the loan agreement in question, funds are provided to the borrower in installments. With this procedure for providing borrowed funds, the interest rate established by the loan agreement will need to be checked to see if it exceeds the minimum value of the interval of maximum interest rates on debt obligations on the date of provision of each part of the loan amount to the borrower.

At the same time, for the purposes of correct calculation of the amounts of recognized income in the form of interest on the loan, the lender will need to ensure that accrued interest is kept in the context of each part of the loan amount provided to the borrower. In the analyzed situation, under the terms of the concluded loan agreement, interest is accrued on the actual balance of the debt for each part of the loan amount, which allows the lender to ensure that accrued interest is kept track of in the specified way.

During The lender has the right to recognize income in the form of interest on the loan based on the actual rate under the loan agreement at any value of the key rate of the Central Bank of the Russian Federation, since specified period the minimum value of the interval of maximum interest rates on debt obligations is set at 0%.

Beginning from January 1, 2016. The lender will have the right to recognize income in the form of interest based on the actual rate under the loan agreement only if the interest rate established by the loan agreement - 8.25% - exceeds 75% of the key rate of the Central Bank of the Russian Federation in force on the date of provision of the corresponding part of the loan to the borrower. This condition will be fulfilled if the key rate of the Central Bank of the Russian Federation does not exceed 11%.

When the key rate of the Central Bank of the Russian Federation is set at a level above 11% and, accordingly, provided for by the contract loan interest rate - 8.25% - will be less than 75% of the key rate of the Central Bank of the Russian Federation in force on the date of provision of the corresponding part of the loan amount to the borrower, then the lender's income will be recognized as interest calculated on the basis of the actual rate, taking into account the provisions of Section V1 of the Tax Code of the Russian Federation. In other words, for the purposes of recognizing income in the form of interest on a loan, the lender will need to determine whether the interest rate established by the loan agreement corresponds to the market level, applying the provisions provided for in Art. 1057 Tax Code of the Russian Federation methods.

If the interest rate established by the loan agreement corresponds to the market level, the lender will have the right to recognize income in the form of interest accrued under the loan agreement, based on the actual rate.

If the interest rate under the loan agreement is below the market level, then income in the form of interest on the loan will be subject to determination based on the market level of interest. The need to define in this case The amount of income subject to recognition based on the market level of interest follows from paragraph 1 of Art. 1053 of the Tax Code of the Russian Federation, according to which, if in transactions between interdependent persons commercial or financial conditions are created or established that are different from those that would take place in transactions recognized in accordance with Section V1 of the Tax Code of the Russian Federation as comparable, between persons who are not interdependent , then any income (profit, revenue) that could have been received by one of these persons, but due to the specified difference was not received by him, is taken into account for tax purposes for this person.

It should be taken into account that, on the basis of clause 9 of Art. 10514 of the Tax Code of the Russian Federation, when determining the amount of income from transactions between related parties, the federal executive body authorized for control and supervision in the field of taxes and fees, for the purposes of this article, has the right to check the compliance of the amounts of income received from transactions with the market level, taking into account the provisions of Chapters 142 and 143 of the Tax Code RF. If, as a result of this audit, the tax authority establishes that the amount of income taken into account by the lender in the form of interest on the loan is calculated based on an interest rate, the value of which is below the market level, then the lender will have high risk additional assessment of tax payable to the budget, as well as accrual of corresponding amounts of penalties and fines.

If the loan transaction being concluded , then the lender will have the right to recognize as part of non-operating income the amount of interest calculated on the basis of the actual rate under the loan agreement, regardless of the ratio of the latter to the key rate of the Central Bank of the Russian Federation, and also regardless of its compliance (non-compliance) with the market level.

The procedure for recognizing expenses in the form of interest under a loan agreement arising from borrower, also depends on whether the loan transaction is considered controlled for tax purposes or not.

will be recognized as controlled, then the procedure for the borrower to recognize expenses in the form of interest calculated under the loan agreement will be as follows.

During from January 1 to December 31, 2015 the borrower will have the right to recognize as non-operating expenses the amount of interest calculated based on the actual rate under the loan agreement, provided that this rate is less than 180% of the key rate of the Central Bank of the Russian Federation in effect on the date of provision of the corresponding part of the loan.

From August 3, 2015, the key rate of the Central Bank of the Russian Federation was set at 11%. Thus, 180% of the current key rate of the Central Bank of the Russian Federation is 19.8%, which is higher than the interest rate under the analyzed loan agreement - 8.25%.

Consequently, when receiving part of the loan amount during the period of validity of the key rate of the Central Bank of the Russian Federation at the level of 11%, the borrower has the right to recognize as part of non-operating expenses the interest calculated on such part of the loan, in in full based on the actual rate under the contract.

At the same time, we note that in connection with the provision of a loan in parts, the borrower, as well as the lender, must ensure the maintenance of records of calculated interest in the context of the parts of the loan provided. This procedure for accounting for interest will allow the borrower to correctly determine the amount of expenses in the form of interest recognized for profit tax purposes.

If, before December 31, 2015 inclusive, the key rate of the Central Bank of the Russian Federation is reduced to 4.5% (or lower) and, accordingly, the interest rate established by the agreement - 8.25% - exceeds the legally established maximum value of the interval of maximum interest rates on debt obligations , then the borrower's expense in the form of interest calculated on that part of the loan that will be provided to him during the period of validity of the key rate of the Central Bank of the Russian Federation in the amount of 4.5% (or lower) will be recognized as interest calculated based on the actual rate taking into account the provisions of section V1 Tax Code of the Russian Federation.

However, the lowering of the key rate by the Central Bank of the Russian Federation in this year up to 4.5%, according to the author, is extremely unlikely. In this regard, the likelihood that the interest rate established by the loan agreement in question will exceed in 2015 the maximum value of the range of maximum interest rates on debt obligations and, accordingly, the borrower will need to determine the expense in the form of interest under the loan agreement, taking into account the provisions of section V1 of the Tax Code of the Russian Federation, is also assessed by the author as extremely low.

If the key rate of the Central Bank of the Russian Federation is nevertheless lowered to 4.5%, then the borrower's expenses in the form of interest on the loan will be recognized for tax purposes as follows.

If the interest rate established by the loan agreement corresponds to the market level, the borrower will have the right to recognize an expense in the form of interest calculated under the loan agreement based on the actual rate.

If the interest rate under the loan agreement is higher than the market level, then for the purposes of calculating income tax, the expense in the form of interest on the loan will be determined based on the market level of interest.

If, as a result of an audit of the completeness of calculation and payment of taxes in connection with transactions between related parties, the tax authority reveals that the amount of expenses taken into account by the borrower in the form of interest on the loan was calculated by him based on an interest rate, the value of which is higher than the market level, then the borrower will have there is a high risk of refusal to recognize that part of the expenses that will account for such an excess, and, as a result, additional tax to be paid to the budget, accrual of the corresponding amounts of penalties and fines.

Beginning from January 1, 2016 the borrower will have the right to recognize an expense in the form of interest under the loan agreement based on the actual rate if the rate established by the agreement - 8.25% - is less than 125% of the key rate of the Central Bank of the Russian Federation in effect on the date of provision of the corresponding part of the loan.

This condition will be violated only if the key rate of the Central Bank of the Russian Federation is set at 6.5% or lower. In this case, the procedure for calculating the amount of expenses that the borrower will have the right to recognize for tax purposes will be similar to the procedure for calculating the amount of recognized expenses in the event of non-compliance with the conditions of clause 11 of Art. 269 of the Tax Code of the Russian Federation, stated earlier in relation to the period from January 1 to December 31, 2015.

If the loan transaction will not be recognized as controlled, then the borrower will have the right to recognize as non-operating expenses the amount of interest calculated on the basis of the actual rate under the loan agreement, regardless of the ratio of the latter to the key rate of the Central Bank of the Russian Federation, and also regardless of its compliance (non-compliance) with the market level.

Thus, if the analyzed conditional deal provision of a loan will not be recognized as controlled for tax purposes, then neither the lender nor the borrower, in the author’s opinion, will have any tax risks regarding the legality of recognizing income (expenses) in the form of interest on the loan based on the actual rate, since in this case, there will be no grounds for applying the provisions of section V1 of the Tax Code of the Russian Federation.

If the analyzed loan transaction is considered controlled for tax purposes, then tax risks may arise for the lender and (or) borrower only if the interest rate established by the loan agreement goes beyond the minimum and (or) maximum values established in subparagraph. 1 clause 12 art. 269 of the Tax Code of the Russian Federation the interval of maximum interest rates on debt obligations and at the same time it will not correspond to the market level. In this case, the tax authority will have the right to determine the tax consequences of the analyzed loan transaction based on the market level of interest rates for similar loans.

Avoiding these risks will allow the loan agreement to establish an interest rate, the value of which will be within the range of maximum interest rates on debt obligations valid during the period of the loan.

However, this method can guarantee the absence of tax risks in terms of the legality of recognizing income (expenses) in the form of interest on a loan based on the actual rate, only if the relevant loan agreement provides for a one-time provision of the entire loan amount, since only with this procedure for the provision of funds is the condition that the interest rate established by the loan agreement within the range of maximum interest rates will be observed throughout the entire term of the loan agreement.

When providing a loan in parts, the values of the minimum and maximum limits of the interval of maximum interest rates on debt obligations will be subject to determination on the date of provision of each part of the loan, and, accordingly, in the event of a significant change in the key rate of the Central Bank of the Russian Federation towards a decrease or increase and the interest rate under the loan agreement remains unchanged the condition that the interest rate established by the contract be within the range of maximum interest rates on debt obligations may be violated.

If a one-time provision of the entire loan amount is not possible, for example, for economic reasons, the parties have the right to enter into separate loan agreements for each amount of funds actually lent, setting the interest rate taking into account the current level of the key rate of the Central Bank of the Russian Federation.

Setting the interest rate by indicating a certain percentage of the key rate of the Central Bank of the Russian Federation, valid on the date of provision of the corresponding part of the loan to the borrower, is permissible from the point of view of civil law. However, with this method of setting, the interest rate cannot be considered fixed, since in fact its value depends on the value of the key rate of the Central Bank of the Russian Federation as of each specific date.

Consequently, when setting an interest rate in the form of a certain percentage of the key rate of the Central Bank of the Russian Federation for the purpose of calculating the range of maximum values of interest rates on debt obligations, the key rate of the Central Bank of the Russian Federation should be understood as the corresponding rate in effect on the date of recognition of income (expenses) in the form of interest in accordance with Chapter 25 of the Tax Code of the Russian Federation, and not on the date of provision of borrowed funds (subclause 2, clause 13, article 269 of the Tax Code of the Russian Federation). In practice, the provision of borrowed funds and the recognition of income (expenses) in the form of interest on the loan, as a rule, diverge in time: the provision of borrowed funds precedes the recognition of income (expenses) in the form of accrued interest on the loan. In this regard, setting the interest rate on a loan at the level of 75% of the key rate of the Central Bank of the Russian Federation, effective on the date of provision of the corresponding part of the loan, does not guarantee that on the date of recognition of expenses (income) in the form of interest on the loan, the condition that the interest rate established by the loan agreement is found within the range of maximum interest rates on debt obligations, which, with this method of setting the rate, will be calculated based on the key rate of the Central Bank of the Russian Federation on the date of recognition of income (expenses) in the form of interest on the loan, will not be violated.

Guarantee compliance with the condition that the interest rate established by the loan agreement is within the range of maximum interest rates and thereby eliminate the risk of determining tax authorities tax consequences completing the analyzed transaction to provide a loan based on the market level of interest on similar loans will allow fixing the interest rate on the loan by indicating a certain percentage of the key rate of the Central Bank of the Russian Federation, which is not valid on the date of provision of the corresponding part of the loan to the borrower, but on the date of recognition of income (expenses) in the form of interest in accordance with Chapter 25 of the Tax Code of the Russian Federation. In this case, the value of the interest rate of the key rate of the Central Bank of the Russian Federation established by the loan agreement on the date of recognition of income (expenses) in the form of interest for tax purposes must be within the limits of the corresponding values established in subparagraph. 1 clause 12 art. 269 of the Tax Code of the Russian Federation.

With this method of setting the interest rate, the limit values of the interest rate interval on debt obligations are subject to determination based on the value of the key rate of the Central Bank of the Russian Federation, effective on the date of recognition of income (expenses) for tax purposes.

Thus, when setting the interest rate on a loan by indicating a certain percentage of the key rate of the Central Bank of the Russian Federation, effective on the date of recognition of income (expenses) in the form of interest, the value of such a rate will always be within the range of maximum interest rates on debt obligations and, accordingly , there will be no grounds for revising the amount of income (expenses) recognized for tax purposes in the form of interest as a result of the application of transfer pricing rules (provided that the interest rate of the Central Bank of the Russian Federation established by the loan agreement is within the range of maximum interest rates on debt obligations, established by subparagraph 1, paragraph 12, article 269 of the Tax Code of the Russian Federation).

The author does not see any other ways to minimize tax risks due to the right of tax authorities to determine the tax consequences of transactions between related parties based on the market price level for the relevant goods (works, services).

If an additional agreement is concluded to a previously existing loan agreement with a fixed interest rate, on the basis of which the interest rate for newly issued and (or) previously issued loan amounts will change from a certain date, then the parties to the agreement may face the following tax risks.

When providing a loan in installments, each new tranche, during which funds are transferred to the borrower, should be considered as new debt obligation , since by virtue of paragraph 1 of Art. 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. The Russian Ministry of Finance adheres to a similar position on this issue (see, for example, letter dated April 15, 2013 No. 03-03-06/1/12502).

In this regard, in the event of concluding an additional agreement to the loan agreement, on the basis of which the interest rate on newly issued and (or) previously issued loan amounts changes, the tax consequences in terms of determining the amount of income (expenses) recognized for tax purposes in the form of interest, by in our opinion, should be considered separately for those parts of the loan that were provided before the interest rate changed, and for those parts of the loan that will be provided after the change.

Tax consequences for loan amounts that were provided before the conclusion of the additional agreement on changing the interest rate

The limit values of the interest rate interval are determined based on the key rate of the Central Bank of the Russian Federation (subclause 1, clause 12, article 269 of the Tax Code of the Russian Federation).

The criterion for applying one or another procedure for determining the key rate of the Central Bank of the Russian Federation for the purpose of calculating the range of maximum interest rates on debt obligations is the interest rate on the corresponding debt obligation.

Tax consequences for loan amounts that were provided after the conclusion of an additional agreement on changing the interest rate

For debt obligations arising after the conclusion of an additional agreement on changing the interest rate on the loan, the new interest rate will apply. The interest rate change will not occur during the term of such debt obligation.

Consequently, for debt obligations arising after a change in the interest rate on the loan, the interest rate will remain unchanged and, accordingly, in relation to such debt obligations, the key rate of the Central Bank of the Russian Federation should be understood as the corresponding rate in effect on the date of raising funds. So it's order tax accounting income (expenses) on such obligations and possible tax risks will be similar to the procedure and risks set out earlier in relation to debt obligations, the interest rate on which is fixed and does not change throughout the entire period of their validity.

In conclusion, we note once again: intercompany provision of loans in itself does not entail any tax risks. However, under certain factual circumstances, a lender and a borrower who are related parties may face tax risks due to the application of transfer pricing rules.

These risks may arise if:

the loan transaction in question will be considered controlled for tax purposes And

the interest rate established by the loan agreement will go beyond the minimum and (or) maximum values established in subparagraph. 1 clause 12 art. 269 of the Tax Code of the Russian Federation the interval of maximum interest rates on debt obligations and at the same time it will not correspond to the market level.

In this case, the tax authority will have the right to determine the tax consequences of a loan transaction based on the market level of interest rates for similar loans.

These risks will be avoided if the loan agreement establishes an interest rate the value of which will be within the range of maximum interest rates on debt obligations valid during the period of the loan. In this case, the loan amount must be provided in full at a time, or a separate agreement must be concluded in relation to each of the loan amounts provided.

Establishing an interest rate by indicating a certain percentage of the key rate of the Central Bank of the Russian Federation (in particular, 75%) in force on the date of provision of the corresponding part of the loan does not exclude the emergence of grounds for applying the provisions of Section V1 of the Tax Code of the Russian Federation to the transaction in question and, as a consequence, the specified risks in connection with their use. This is due to the fact that with this method of setting the interest rate on a loan, the minimum and maximum values of the interval of maximum interest rates on debt obligations will depend on the value of the key rate of the Central Bank of the Russian Federation on the date of recognition of income (expenses) in the form of interest and, accordingly, cannot be determined in advance.

To eliminate the risk of the tax authorities determining the tax consequences of completing the analyzed loan transaction based on the market level of interest on similar loans, the establishment of an interest rate by indicating a certain percentage of the key rate of the Central Bank of the Russian Federation, effective on the date of recognition for tax purposes of income (expenses) in the form of interest. In this case, the value of the specified percentage of the key rate of the Central Bank of the Russian Federation must be within the limits of the corresponding limit values established in subparagraph. 1 clause 12 art. 269 of the Tax Code of the Russian Federation.

As for tax risks if the parties conclude an additional agreement on changing the interest rate on loans, the extension of such an agreement to previously issued loan amounts is associated with tax risks, since the procedure for calculating income (expenses) in the form of interest in such a situation is not established by the Tax Code of the Russian Federation and , accordingly, the legality of using any of possible ways calculation of the amount of income (expenses) recognized for tax purposes in the form of interest may be challenged by the tax authorities.

In relation to debt obligations arising after a change in the interest rate on the loan, the new rate will be constant (provided that during the term of such debt obligations the parties do not enter into new additional agreements on changing the interest rate on the loan, the effect of which will be extended to previously issued loan amount). Accordingly, the procedure for tax accounting of income (expenses) on such obligations and possible tax risks will be similar to the procedure and risks set out earlier in relation to debt obligations, the interest rate on which is fixed and does not change throughout the entire period of their validity.

This norm establishes the specifics of recognizing as controlled transactions between related parties whose place of registration, or place of residence, or place of tax residence of all parties and beneficiaries in which is the Russian Federation.

Since, according to the conditions considered in this article For example, the place of registration of both the lender and the borrower is the Russian Federation, transactions between them can be recognized as controlled on the basis of clause 2 of Art. 10514 Tax Code of the Russian Federation. In this regard, the established para. 3 subp. 1 clause 12 art. 269 of the Tax Code of the Russian Federation minimum and maximum values intervals of maximum interest rates on debt obligations arising as a result of transactions recognized as controlled on grounds other than the grounds specified in clause 2 of Art. 10514 of the Tax Code of the Russian Federation, are not given in this article.

With regard to the amount of the amount criterion for the purpose of recognizing transactions between related parties as controlled by the Tax Code of the Russian Federation, exceptions are established depending on the circumstances due to which the transactions are recognized as controlled. For transactions recognized as controlled on the basis of sub. 2, 4–7 p. 2 art. 10514 of the Tax Code of the Russian Federation, the amount criterion is set at the level of 60 million rubles, for transactions recognized as controlled on the basis of sub. 3 p. 2 art. 10514 of the Tax Code of the Russian Federation, - at the level of 100 million rubles. Provisions sub. 2–7 p. 2 art. 10514 of the Tax Code of the Russian Federation are subject to application depending on the subject composition of transactions between interdependent persons and their subject matter.

Please note: for the purposes of calculating the established sub. 1 item 2 art. 10514 of the Tax Code of the Russian Federation, the concept of “income” is used in relation to both parties to the transaction. Thus, when calculating the amount of income from transactions between related parties for the purpose of recognizing them as controlled, one should take into account both those transactions for which one of the parties received income, and those transactions for which such party received expenses, since for the other party to the transaction (counterparty) ) the last transactions will be “profitable”.

Similar conclusions are contained in letters of the Ministry of Finance of Russia dated May 23, 2012 No. 03-01-18/4-67 and dated April 23, 2012 No. 03-03-18/3-56.

Provided that during the period of validity of such debt obligations the parties do not enter into new agreements to change interest rates on previously issued loan amounts.

with interest in a person acting on the basis, hereinafter referred to as " Lender", on the one hand, and in the person acting on the basis of, hereinafter referred to as " Borrower", on the other hand, hereinafter referred to as the "Parties", have entered into this agreement, hereinafter " Agreement”, about the following:

1. THE SUBJECT OF THE AGREEMENT

1.1. Under this agreement, the Lender provides the Borrower with a loan in the amount of rubles, and the Borrower undertakes to return the loan amount to the Lender and pay accrued interest for using the loan in accordance with the terms and conditions established by this agreement.

1.2. The interest rate for this agreement is % per annum.

1.3. Interest for using the Loan is accrued based on the actual number of calendar days of use of the loan, while the actual number of calendar days in a year (365 or 366) is taken as the base, and the number of settlement days in a month corresponds to the actual number of calendar days in a month.

1.4. The period for calculating interest for using a loan begins on the day the Lender actually disburses the borrowed amount to the Borrower or transfers the loan amount to the specified account of the Borrower and ends on the day the Loan is returned to the Lender. The Borrower undertakes to pay the accrued interest for the use of the loan monthly, no later than the last working day of the month.

2. CONDITIONS OF ISSUANCE AND PROCEDURE FOR REPAYMENT OF THE LOAN

2.1. The loan is provided on the basis of this agreement.

2.2. The loan is provided by issuing the borrowed amount from the Lender's cash desk or transferring the borrowed amount to the specified account of the Borrower.

2.3. The Borrower has the right to repay the debt on the Loan and (or) interest for its use by depositing cash into the Lender's cash desk or transferring to non-cash form amounts of debt to the Lender's current account;

3. RIGHTS AND OBLIGATIONS OF THE PARTIES

3.1. The lender undertakes to ensure the provision of the loan within business days from the moment the parties sign this agreement.

3.2. The Lender undertakes to provide the Borrower with a loan on the terms of this agreement.

3.3. The Lender undertakes to advise the Borrower on all issues related to the execution of this Agreement.

3.4. The Borrower undertakes to repay the loan and pay interest for its use within the terms specified in this Agreement and in full.

4. REPAYMENT OF DEBT

4.1. The Borrower repays the Loan in accordance with the terms established by this Agreement.

4.2. The Borrower has the right to repay the Loan early.

4.3. If the Borrower makes a final early repayment of the Loan, the Borrower must, simultaneously with the repayment of the principal debt on the Loan, repay all accrued interest.

4.4. The date of repayment of any payments is considered to be the date of actual receipt of funds to the corresponding account (accounts) of the Lender or the date of depositing the amount of debt into the Lender's cash desk.

4.5. If the Borrower misses the deadline for repaying any payments, the outstanding term debt is considered as overdue debt with interest accrued at the Increased Interest Rate from the date of its occurrence.

4.6. Overdue debt is considered urgent (priority) for repayment at any time.

4.7. Repayment of debt to the Lender is carried out in the following order:

penalty;
overdue interest on the Loan;
outstanding principal debt;
urgent interest on the Loan;
debt on term principal debt.

5. PROCEDURE FOR SECURING THE OBLIGATIONS OF THE BORROWER

5.1. In order to ensure the repayment of the Loan, the Parties undertake to enter into Security Agreements and provide for other security measures.

5.2. Interim measures include: mortgage of real estate; pledge Vehicle; pledge of claims, including securities; the provision by the Borrower to the Lender of the right to extrajudicial foreclosure directly against the collateral provided for in the Security Agreements; surety; bank guarantee; retention of collateral and funds belonging to the Borrower; other measures agreed upon by the Parties.

5.3. The right to choose methods of securing obligations under this Agreement and their assessment belongs to the Lender.

5.4. The property collateral for the Loan, taking into account liquidity, must cover the principal debt and accrued interest. In the event of an increase in urgent debt or the occurrence of overdue debt, the Borrower is obliged to increase the security to the required size and quality.

5.5. The Security Agreements signed in pursuance of this agreement are valid in conjunction with it and are inseparable from it. Simultaneously with the signing of this Agreement, the Guarantee Agreement No. dated "" 2020 and (or) the Guarantee Agreement No. dated "" 2020" are concluded to secure it. In the event of an increase in security, newly concluded contracts are specified in the Agreements.

5.6. In case of deterioration of the physical qualities of the collateral or other loss of its liquid qualities, as with any other security measure, the Lender has the right to demand a replacement of the security method and choose it at its discretion.

6. TERM OF THE CONTRACT

6.1. The term of use of the loan is days from the date of actual disbursement by the Lender of the borrowed amount to the Borrower or transfer of the loan amount to the specified account of the Borrower. The Borrower undertakes to make the final payment of the loan amount and accrued interest for the use of the loan to the Lender before 2020.

6.2. Genuine contract comes into force from the moment the Lender actually issues the borrowed amount to the Borrower or transfers the loan amount to the specified account of the Borrower and is valid until its full repayment and payment of accrued interest for its use.

7. EARLY PERFORMANCE OF OBLIGATIONS

7.1. In case of early repayment of the loan, the Borrower is obliged to notify the Lender of the early repayment no later than business days in advance.

7.2. In case of early repayment of the loan, interest on the use of the loan is paid by the Borrower for the actual period of use of the loan.

8. RESPONSIBILITY OF THE PARTIES

8.1. If the Borrower violates the deadlines established for making the next payment to repay the loan and pay accrued interest for using the loan, the Lender has the right to terminate the agreement and demand from the Borrower an early repayment of the loan amount and payment of the due interest for using the loan.

8.2. From the moment the overdue debt on the Loan arises, the Borrower pays the Lender increased interest for the use of the overdue Loan in the amount of % per annum (hereinafter referred to as the increased Interest).

8.3. Increased Interest is accrued on the amount of the overdue Loan from the date the overdue occurred until the day of full repayment of the overdue Loan.

8.4. At late payment The Borrower pays Interest to the Lender regardless of the payment of Interest provided for in clause 1.2. of this Agreement, a Penalty in the amount of %, accrued on the amount of the overdue payment of Interest for each day of delay, from the date following the date of the delay until the date of its repayment (inclusive).

8.5. The Borrower's obligations to repay the Loan and pay Interest (including increased interest) are considered fulfilled in full from the date of receipt of funds to the current account and (or) to the Lender's cash desk.

8.6. With the consent of the Lender, the Borrower’s obligations to repay the Loan and pay Interest may be fulfilled in other ways that do not contradict current legislation Russian Federation.

8.7. In the event that the Borrower violated the deadline established for making the next payment to repay the loan and pay accrued interest for its use, and the Lender did not exercise the right provided for in clause 7.1. of this agreement, the Borrower is obliged to pay the Lender interest for using the loan, accrued according to the rules provided for in paragraphs 1.2-1.5 of this agreement for the entire actual period of using the loan.

8.8. The Borrower shall reimburse the Lender for all costs associated with debt collection under this agreement.

8.9. The Borrower's refusal to repay the debt to repay the loan and pay accrued interest for its use or violation of the terms of repayment of the Borrower's debt established by this Agreement serves as the basis for limiting its possibilities for further borrowing.

9. FINAL PROVISIONS

9.1. In everything that is not reflected in this agreement, the parties will be guided by current legislation RF.

9.2. The date of fulfillment of obligations under the agreement by the Borrower is the date of full repayment of the debt to repay the loan and payment of accrued interest for its use.

9.3. The parties will try to resolve all disputes and disagreements that arise during the validity of this agreement through negotiations.

9.4. If the dispute is not resolved, it must be resolved in the manner prescribed by the current legislation of the Russian Federation.

9.5. Changes and additions to this Agreement are made in the manner prescribed by current legislation.

9.6. This agreement has been drawn up in two copies of equal legal force, one for each party.

10. LEGAL ADDRESSES AND BANK DETAILS OF THE PARTIES

Lender

Borrower Legal address: Postal address: INN: KPP: Bank: Cash/account: Correspondent/account: BIC:

Let's look at the basic concepts used by both parties, as well as accountants:

A loan obligation or loan assumes that the investor (lender) gives the borrower a certain amount of money or impersonal items in a certain quantity, and the borrower assumes responsibility for returning it by a certain date.
A repayable loan means that the borrower must pay interest for using it.

The concluded agreement will be called compensated even if the amount of interest is not specified in it. Then the borrower will be obliged to repay them in accordance with the Central Bank refinancing rate, which is relevant on the day the loan is repaid.
An interest-free loan takes place if the parties include in the agreement a condition that the borrower has no obligation to pay interest.

Classification of loans in accounting is made depending on:

types of loans (cash, in kind);
forms of retribution (interest, interest-free);
whether the counterparty is an individual or legal entity;
terms (short-term, long-term).

Main types

If the lender is an organization, the following types of postings are distinguished:

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transfer of monetary resources to the person who received the borrowed funds;
interest rate accrual;
return of borrowed funds.

When an organization becomes a borrower:

obtaining borrowed funds;
accrual interest amounts;
repayment of a credit.

Loans also have their own classification:

interest - when the person who took the loan undertakes to repay the money at an interest rate;
targeted – the agreement clearly states for what purpose the loan was taken. The investor can demand money back if he finds out that it is being used for other purposes;
interest-free – when the lender does not require payment of remuneration for using the loan;
commodity – when the borrower receives some type of goods;
state - the state takes the debt.

Each type has its own type of loan agreement.

Interest-free

Interest-free loans do not bring economic benefits and are therefore not considered a financial investment. To account for an interest-free loan, account 76-3 “Calculations for due dividends and other income” is used.

The amount of natural borrowed resources is determined by book value assets that the enterprise has already transferred or will transfer. If the borrower is an individual, then the interest-free loan is accounted for as accounts receivable on score 76-3

What you need to know when concluding a contract

Main legal document regulating the issuance and return of borrowed funds is a bilateral agreement, which is considered to be unilaterally binding, since the borrower has obligations, and the investor has rights.

There are 2 opinions regarding the date from which interest income should be calculated. Some believe that it should be counted from the time the money is received. And they operate with the provisions of Article 809 of the Civil Code of the Russian Federation, according to which the validity of the loan agreement begins from the moment when the money is actually transferred.

Supporters of another position note that this article only states that the agreement is considered valid from the moment the money is transferred, but it does not mention the day from which interest income should be calculated, therefore, it is calculated the next day after receiving the money .

In this case, they refer to Article 191 Civil Code RF, which states that in civil legal relations, the deadlines begin the day after the event occurs. Guided by this principle, bank employees make accruals on the day following the transfer of money.

In any case, so that there are no unnecessary controversial situations, it is better to indicate in the document from which day interest is calculated.

contracting parties are individuals, and cash loan does not exceed the amount of 5,000 rubles;
The loan was received not in the form of money, but in the form of impersonal objects.

Also, in the transaction document it should be noted special purpose borrowing, since taxation will depend on it.

Tax and accounting

Let's consider how loans are reflected in accounting when an organization acts as a lender and borrower, as well as the features of tax accounting in these cases.

If the lender is an organization:

Posting when money is transferred to the borrower. There is no need to charge VAT on the amount paid to the borrower. It is not taken into account in expenses for tax accounting purposes.

A loan from which the organization receives interest income is reflected in account 58. And interest-free is accounted for in account 76.

Calculation of interest under a loan agreement: postings. An invoice drawn up for a percentage amount must be marked “Excluding VAT”. Otherwise, controllers have the right to impose a fine on the organization from 10,000 to 30,000 rubles. Accrued interest amounts when calculating income tax are included in non-operating income organization every month and on the date when the borrower repays the debt.

In accounting interest charges under a loan transaction should be recognized in income on a straight-line basis, without reference to when the organization actually receives this money from the borrower.

Consider a situation where the organization itself occupies:

Borrowed funds are not included in income. If they are taken for less than a year, they must be reflected in account 66. In the case when the lending period is more than one year, they are reflected in account 67.
Calculation of interest amounts under a loan agreement: postings. These funds in tax accounting are classified as non-operating expenses and are taken into account every month, including on the day of payment. In this case, the limit should not be exceeded. It is equal to the refinancing rate, increased by a factor of 1.8.

Interest is included in expenses every month, including on the day when the company returns the money to the lender. If their payment is made to the founder or to an individual it is necessary to withhold personal income tax of 13%.

In accounting, interest should be reflected as part of other expenses.

Debt repayment. The loan amount transferred to the lender is not included in expenses.

Video: Accounting Rules

Basic Rules

Let's look at the principles by which interest is calculated:

The accrual occurs on the money transferred to the borrower. If the debt is repaid in the form of periodic payments, then interest amounts are charged on the remaining debt.
When a loan is not repaid on the agreed date, interest will continue to accrue until the debt is actually repaid.
Delay in repayment of borrowed funds implies that additional interest will be charged on the amount of the debt. This is stated in Article 395 of the Civil Code of the Russian Federation. This is a measure of the borrower's responsibility for violating its obligations.

When and how to calculate interest on a loan

The parties can choose and indicate in the agreement different variants accruals:

Simple option– Interest is charged only on the unrepaid loan amount. They are calculated using the formula:

Amount %=Amount W*rate % /365*number of days.

Where the amount % is the amount of accrued interest, the amount Z is the amount of the loan that needs to be repaid, the rate % is the interest rate determined by the agreement, 365 is the number of days in a year. Number of days – the number of days that make up the period for which the rate is calculated.

The hard way– when interest is calculated both on the debt and on the amount of accrued but overdue interest. This option is used to encourage the borrower to repay loan funds in a timely manner.

When issuing an interest-bearing loan, the lender stipulates in the agreement how interest will be calculated and within what time frame the interest will be paid.

In accounting it is recognized as:

other income;
income from ordinary activities.

When a company is engaged in providing loans, interest on a loan agreement is income from normal looking activities. They should be taken into account as a credit to account 90 “Sales” and are reflected in accounting in accordance with the terms of the agreement. Interest that is recognized as other income of the company must be accrued on the credit of account 91 (Other income and expenses) every month.

How to make entries for accrued interest on a loan

When the company is the lender, the posting is as follows:

If the borrower is an employee:

Accounting entries when company I becomes a borrower:

The legislative framework

Calculation of interest amounts on credit agreement carried out in accordance with the civil legislation of the Russian Federation. The basis is Articles 809, 395 of the Civil Code of the Russian Federation, the Tax Code of the Russian Federation.

Loan and interest

Paragraph 1 of Article 807 of the Civil Code of the Russian Federation establishes that when concluding a loan agreement, the lender must transfer money or things to the borrower, which he must subsequently return. Thus, from the provisions of this paragraph it follows that the legally essential conditions of the loan transaction are questions about the subject of the loan (money or things) and the need to return the property borrowed.

At the same time, the need to pay compensation to the lender for the use of his property, that is, to pay interest under the loan agreement, is not discussed in paragraph 1 of Article 807 of the Civil Code of the Russian Federation. Consequently, a loan transaction, in accordance with the requirements of Article 432 of the Civil Code of the Russian Federation, will be considered concluded, even if the text of the agreement does not regulate the issue of interest by the parties.

This conclusion is directly confirmed by the provision of paragraph 1 of Article 809 of the Civil Code of the Russian Federation, which determines that there may be no indication of the need to pay interest in the text of the agreement.

However, the practice of relationships between business entities gives key importance to the issues of determining the amount of interest under a loan agreement and their payment, since the main goal of a commercial organization is to make a profit. Consequently, all the subtleties of determining the amount and procedure for paying interest must be carefully reflected in the text of the agreement between legal entities.

Interest for using a loan under Article 809 of the Civil Code of the Russian Federation

Paragraph 1 of Article 809 of the Civil Code of the Russian Federation indicates that the lender, having transferred money to the borrower, acquires the right to receive interest for the use of it, unless otherwise specified in the agreement of the parties. Thus, a cash loan for an organization is assumed to be reimbursable in all cases where the text of the agreement does not directly indicate that it is interest-free.

The absence of an agreement regarding interest in the text of the agreement does not automatically make it interest-free, as is directly stated in Article 809 of the Civil Code of the Russian Federation. In this situation, only the procedure for their determination indicated in paragraphs 1 and 2 of Article 809 of the Civil Code of the Russian Federation will apply. According to the provisions of these paragraphs, the borrower will need to pay interest every month using the lender's funds in an amount determined based on the key rate of the Central Bank of the Russian Federation at the time of transfer of the payment or part thereof. However, if the participants in the transaction are individuals or individual entrepreneurs, and the loan amount is less than 100 thousand rubles, then the agreement is considered interest-free, unless otherwise expressly stated in it.

However, it is worth mentioning a special case when the subject of the loan is not money, but things. In such a situation, according to paragraph 4 of Article 809 of the Civil Code of the Russian Federation, in the absence of an agreement between the parties on the issue of interest, the contract is automatically assumed to be interest-free.

Interest on early loan repayment

Articles 809 and 810 of the Civil Code of the Russian Federation closely connect another key (but legally non-essential) condition of the agreement with interest under the agreement - the repayment period of the debt. According to paragraph 1 of Article 810 of the Civil Code, a loan can be fixed-term (with a fixed repayment date) or perpetual (in this case, the lender should notify the borrower of the debt repayment date 1 month in advance or within another period specified in the agreement).

It is important to remember that depending on the need to pay interest, the ability to repay the loan early will be determined. Thus, according to Article 810 of the Civil Code of the Russian Federation, if the loan is interest-free, then the borrower has the right to repay it ahead of schedule at will.

At the same time, if a transaction between organizations involves the payment of interest, repayment of the debt ahead of schedule is possible only with the approval of the lender. Such a restriction is determined by the observance of his financial interests, since if the loan is repaid early, he will receive a smaller amount of compensation for the use of his money than he expected when concluding the transaction. If an interest-bearing loan is provided to an individual for personal needs, he can return it by notifying the lender 30 days before the return.

Paragraph 4 of Article 809 of the Civil Code of the Russian Federation states that in case of early repayment of a loan, the borrower is required to pay interest up to and including the date of actual repayment of the loan. Thus, the possibility of repaying an interest-bearing loan ahead of schedule will be determined solely by the financial interest of the lender, who has the right to give permission for early repayment, thereby not receiving part of the expected income, or not giving such permission in order to receive the full amount of interest under the agreement.

Maximum interest rate, minimum interest rate, change (decrease or increase) of the loan fee

When drawing up an agreement on a loan to an organization, it is necessary to remember that the norms of the Civil Code of the Russian Federation do not determine the maximum amount of interest for the use of the lender’s funds.

Don't know your rights?

For reference: in judicial practice a position has developed whose purpose is to create conditions for establishing fair and non-ruining interest rates on credit and loan transactions. As an example, we can cite the ruling of the board of the Supreme Court of the Russian Federation dated March 29, 2016 in case No. 83-KG 16-2, which states that a loan transaction, despite the principle of freedom of contract provided for in paragraph 1 of Article 421 of the Civil Code of the Russian Federation, should not be clearly burdensome for the borrower.

It should also be noted that information on maximum size percent, published by the Central Bank of the Russian Federation quarterly, also has no direct relation to organizations due to Part 11 of Article 6 of the Law “On Consumer...” dated December 21, 2013 No. 353-FZ, since it is intended only for consumer lending.

As for the minimum interest under the loan agreement , there is no such restriction in the legislation. Moreover, paragraph 1 of Article 809 of the Civil Code of the Russian Federation suggests that the loan can be interest-free, that is, free for the borrower.

Changing the interest rate

According to paragraph 1 of Article 450 of the Civil Code of the Russian Federation, the parties to a loan transaction have the right at any time during the contract to change the amount of interest on it if there is their mutual consent. A unilateral change by the lender of interest is directly prohibited both by Article 450 of the Civil Code of the Russian Federation and by subparagraph 4 of paragraph 1 of Article 12 of the already mentioned Federal Law No. 151 (for clients of microfinance organizations).

When making changes, including reducing the amount of interest, the parties should remember that they will come into force only from the moment the agreement is signed (clause 3 of Article 453 of the Civil Code of the Russian Federation). However, if desired, the parties in the text of the document can indicate a different procedure for the entry into force of the innovations they have adopted.

Speech in in this case It may also be about giving the agreement retroactive force, that is, extending the effect of changes to the period preceding their approval by the parties. Otherwise, according to paragraph 4 of Article 453 of the Civil Code of the Russian Federation, all interest already paid at the previously concluded rate will remain in effect. For example, the borrower does not have the right to demand recalculation of previously made interest payments, if the adopted changes reduce the interest rate.

Late repayment of a loan and late payment of interest - consequences under Article 811 of the Civil Code of the Russian Federation

In practice, there are often situations when the borrower does not pay both the main loan and the amount of interest accrued for its use in a timely manner. If the debt is not repaid on time, 2 options are possible, depending on whether the parties to the agreement provide for special sanctions for late payment or not:

If the procedure and amount of the penalty, in accordance with paragraph 4 of Article 395 of the Civil Code of the Russian Federation, are determined in the agreement of the parties, the rules specified in the contract apply.
If the parties do not determine special sanctions for overdue debt, the provisions of Articles 395 and 811 of the Civil Code of the Russian Federation apply.

According to paragraph 1 of Article 811, if the loan is not repaid, the borrower must pay so-called penalty interest, accrued from the day when he was supposed to fulfill the obligation until the moment of actual payment.

It is important to remember that penalty interest is accrued only on the principal amount of the loan, in accordance with paragraph 5 of Article 395 of the Civil Code of the Russian Federation. Exactly the same position is reflected in paragraph 15 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 8, 1998 No. 14. Moreover, their accrual on the amount of interest payable is possible only if the parties directly indicate such a possibility in their agreement, realizing the consequences of this step. In the absence of an indication of the amount of penalty interest to be paid, the rules of paragraph 1 of Article 395 of the Civil Code of the Russian Federation are applied, according to which the penalty is calculated based on the key rate of the Central Bank of the Russian Federation.

Tax on interest received

When completing loan transactions, the borrower does not need to pay VAT and income tax. These provisions are enshrined in paragraph 12 of Article 270 of the Tax Code of the Russian Federation. Similar rules apply to the lender when returning money or things borrowed to him. However, for the use of borrowed funds (things), a completely different procedure is applied in relation to interest - both penalty and ordinary.

Regarding VAT on interest received in relation to loan transactions, the rules of subparagraph 15 of paragraph 3 of Article 149 of the Tax Code of the Russian Federation are applied, according to which such transactions are exempt from this tax. Profit tax on the interest received will have to be paid, in accordance with paragraph 6 of Article 250 of the Tax Code of the Russian Federation. The interest received in this case is taken into account as non-operating income.

As for the procedure for calculating tax, one should be guided by the provisions of paragraph 2 of Article 273 of the Tax Code of the Russian Federation (with the cash method of accounting), according to which the moment of receipt of income is the day the interest is received by the lender. This rule used both for one-time payment of the entire amount of interest, and for making payments in installments.

To summarize, we note that the procedure for the borrower to pay interest under the loan agreement is not an essential condition of the transaction, but is of great importance, since legal nature An agreement of this kind presupposes its remuneration. That is why the parties should be especially careful when agreeing on interest clauses during the conclusion of a loan agreement.