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Interest-bearing loan between legal entities. Minimum interest on the loan What interest should be under the loan agreement

One of effective ways raising funds for business development is a loan agreement. Between two organizations such a document is drawn up much faster bank loan and has the advantage that, along with money, the subject of the loan can also take on commodity expression. The borrower can receive from the lending organization several cars of cement, fasteners, fuels and lubricants and other goods he needs for current activities.

What is a loan agreement between legal entities

This form of legal relations between enterprises provides for an agreement in which one of the parties transfers and the other accepts ownership of money or goods. A loan agreement between legal entities additionally implies that:

  • After deadline The borrowing organization must return the same amount financial resources or valuables (the same amount of bricks, concrete blocks, etc.).
  • Such a service may be paid in the form of a percentage. It is calculated in the same units (that is, money or a specific product) as the loan issued.

Conditions of conclusion

Legal requirements procedures for obtaining a loan between two organizations have their own characteristics that must be taken into account when drawing up official documents. It is not necessary to have the agreement certified by a notary office, but this can be done at the request of one of the parties. The law talks about the mandatory written form of the contract. If it is not formalized, and the money (or commodity valuables) is transferred to the borrower, tax authorities will consider this unjust enrichment. A properly drafted document should:

  • Include details of the parties.
  • Comply with legal norms and requirements, be a multifunctional document that provides for all the features of the transaction.
  • To avoid disputes, directly indicate the consideration of the transaction - whether payment in the form of interest for the service provided is necessary or not.

Moment of entry into force of the agreement

Issuing and receiving a loan between legal entities has important feature, distinguishing it from bank loans. The agreement comes into force only at the moment of delivery of money or goods from the lender to the borrower and is valid for the specified period. Such a document can be signed in advance by the parties. If for some reason the creditor does not transfer funds or valuables, then the agreement is considered not to have entered into force.

Legal regulation

The legislative norms of contractual relations between legal entities when receiving a loan are set out in Chapter 42 of the Civil Code Russian Federation(Civil Code of the Russian Federation). Articles 807-813 address issues such as:

  • loan agreement form;
  • borrower's responsibilities;
  • calculation of interest;
  • challenging the initial conditions;
  • consequences of failure to fulfill obligations.

How to correctly draw up a loan agreement between legal entities

According to the law, there are special requirements for documentation such a deal. The agreement must be in writing. There are special requirements for the content of this document; in the absence of at least one of the specified points, it may be declared invalid:

  • Loan amount (given in numbers and words).
  • Deadline for repayment of funds received (if this point is omitted, then by default the loan must be repaid after 30 days).
  • Interest rate for use (it can be zero for a gratuitous loan).
  • Repayment procedure (partially or fully, is it possible to pay early).
  • Special conditions issuance (availability of collateral, guarantors, etc.).
  • Responsibility of the borrower (for example, the amount of the penalty).
  • Details of the parties to the agreement.
  • Date (in this case, the agreement comes into force from the moment of transfer of funds).
  • Signatures of the directors of both companies.

Subject of the agreement

In accordance with current legislation, Several types of agreements between legal entities are possible. The most common are:

  • Cash loan. With this service, one organization transfers a pre-agreed amount of money to another for temporary use. As a rule, this service involves payment - remuneration to the lender in the form of a percentage of the amount issued, which is necessarily specified in the document. But a situation is also possible when there is a demon interest agreement loan between legal entities. This option for processing a transaction, along with visible financial benefits, also brings special registration of tax payments and increased attention from regulatory authorities.
  • Commodity loan. This type of loan implies that one person receives from another not money, but material objects and mutual settlements are also made in them (for example, a construction organization receives 10,000 concrete blocks from a partner, and after 2 months, by agreement, returns 10,100 units of the same to him products).
  • Loan in tranches. The peculiarity of this type of loan is that the amount determined by the agreement is not issued at a time, but in parts as needed, and the borrower saves on interest payments. In essence, this service is identical to several issued loans, but it involves a simpler registration, because the agreement is concluded only once.

Rights and obligations of the parties

Careful Study relevant articles of the Civil Code of the Russian Federation before a loan agreement between legal entities is signed will save the lender and the defendant from unpleasant surprises. One of the most common mistakes is the opinion that if the lending rate is not documented, then the loan received is interest-free.

According to the law, everything is completely different. Article 809 of the Civil Code of the Russian Federation says that if the agreement does not indicate the actual amount of interest, then it is equal to the refinancing rate of the Central Bank of Russia at the time of payment of the debt. Paying for a loan service in this amount (for example, for April 2018, the indicated value is 7.25%) will not always be convenient for the borrower. It would be much better for him to specify the rate in advance in the agreement, or clearly indicate that the loan is interest-free.

Responsibility of the parties

A loan agreement concluded between legal entities must necessarily include a description of the sanctions that apply to the borrower if the debt repayment terms are violated. Depending on the terms of the transaction, the amount may be returned:

  • entirely;
  • in parts;
  • with an initial payment of interest every month or quarter.

The amount of the fine depends on the timing of the delay in the amount. It is beneficial for the borrower if penalties are calculated not for the entire loan amount, but only for the unpaid/delayed portion. The specificity of such lending is that the conditions here are not as harsh as for bank lending, and often penalties are not applied if the delay:

  • It has short period of time(a few days);
  • is of a one-time nature;
  • is due to a valid reason, and the creditor has no claims.

Force majeure and dispute resolution

Many borrowers believe that such a clause is necessary for the contract, because it once again protects their rights in the event of force majeure circumstances ( natural Disasters, social disturbances, etc.). But the usual reference to Article 401 of the Civil Code of the Russian Federation, which deals with force majeure circumstances and the liability of the parties to the transaction, will suffice. Wherein:

  • If there are extraordinary and unavoidable circumstances that interfere with the fulfillment of obligations, the party who has not fulfilled the obligation is considered innocent.
  • This article of the Civil Code of the Russian Federation specifically emphasizes that the lack of money from the debtor cannot be qualified as a force majeure circumstance.
  • The agreement may provide for the borrower’s guilt in all cases of violations in debt payment (without any mitigating circumstances), but this provision can be easily challenged in arbitration court.

Termination of the agreement

By general rule, the borrower’s obligations are considered fulfilled at the time of final payment of the debt (including if this is done ahead of schedule). In this state of affairs, the agreement terminates, but in some cases it can be terminated before the loan is repaid. Such situations include violation of loan repayment terms, for example:

  • late with deadlines monthly contributions on schedule;
  • refusal to pay interest;
  • changing target conditions, etc.

Classification

According to Chapter 42 of the Civil Code of the Russian Federation, loans between legal entities can be divided into several types. The classification takes into account different characteristics (presence/absence of interest, the borrower’s freedom to use funds, etc.), so the same agreement can simultaneously belong to several types. The table shows the classification according to legal regulations:

Type of agreement

Characteristic

Percentage

The most common type of agreement. It is analogous to bank lending and implies payment (in the form of a percentage of the loan amount) for the service of providing Money.

Gratuitous

Does not imply remuneration for the use of borrowed resources. Such conditions are unfavorable for the lender, since the amount issued will depreciate over time (plus he will additionally receive risks in terms of non-repayment of the allocated funds).

Monetary

With such a loan, the debt is given Russian rubles or foreign currency (on mutually beneficial terms fixed in the agreement). The service may be interest-bearing or interest-free.

Clothing (commodity)

Items of value are transferred and returned on loan. Like a cash loan, this service can also be interest-free or interest-bearing (in the latter case, the payment is the same goods).

State

In this case, the borrower is state organization(for example, a municipality) that issues bonds and does not have the right to change the terms of payments for this service during the validity of the contract.

May be interest-bearing or non-interest-bearing. A prerequisite is intended use funds received. This process is controlled by the lender and if the conditions are violated, he has the right to return the money.

Interest-free loan agreement between legal entities

The design features of this document are based on Article 809 of the Civil Code of the Russian Federation. In this case, the contract is initially interest-free if:

  • the subject of the loan is things;
  • the loan amount does not exceed 50 minimum wages (minimum wage);
  • receipt of funds is not related to commercial activities.

It will be convenient for the borrower to mention in the agreement the interest-free nature of the service. Otherwise, the creditor still has the opportunity to demand payment of interest at the refinancing rate of the Central Bank of the Russian Federation, which is why the debtor should think in advance about maximum security and prepare evidence that the transaction is free of charge. There are no limits on such a service (except that in cash you can transfer amounts not exceeding 100,000 rubles).

If the amount of interest-free lending is equal to or exceeds 600,000 rubles, then, according to the law, such transactions are subject to mandatory state control. This is done in order to prevent the legalization of proceeds from crime, combat corruption and terrorism. One of the parties to the agreement must report the transaction to the Federal Financial Monitoring Service. It is important that the constant issuance/receipt of interest-free loans imply careful government control, regardless of the actual amount of lending.

Interest Loan Agreement

In most situations, lending money or commodity values implies reward. Agreement interest-bearing loan between legal entities implies payment for the service provided in a predetermined amount (the default refinancing rate of the Central Bank of the Russian Federation is used). This implies an increase in the amount of debt by the amount of remuneration. Interest is calculated in the same funds/values ​​as the loan issued (for example, bags of cement or US dollars).

Cash loan between legal entities

This form of contractual relationship involves the issuance of financial resources for a certain period of time. The most common option is to charge a fee for this service at a pre-agreed rate, but an interest-free loan is also possible. The amount of interest may not be specified (in this case, by law, the borrower may require payments based on the refinancing rate of the Central Bank). To avoid misunderstandings, it is better for the parties to clearly state in the agreement the presence/absence of remuneration for the service.

Commodity loan agreement

An important condition of this form of agreement between legal entities is that the means of lending is not money, but material values(construction equipment, spare parts, etc.). It is essential that the goods are transferred into the ownership of the borrower, and upon the arrival of the agreed period, he must provide the lender with identical objects (that is, the temporary use of items is excluded). Depending on the terms of the agreement, the debt is repaid in the same amount or in an increased amount (with the addition of interest).

Agreement to receive a loan in tranches

IN commercial activities Situations are possible when not the entire amount is required, but only part of it (for example, a store for a weekly order and purchase of goods). In this case, it is not profitable for the debtor to receive the loan in full, because this will increase the accrual of interest on money that will not be used. Transferring individual parts of the amount (tranches) will reduce the overpayment.

An option for this service would be to obtain several loans as needed, but this is inconvenient due to the fact that each time you need to conclude new agreement. When a loan is made in tranches, the signing procedure is carried out only once, and each new amount is drawn up as an additional agreement. Otherwise, the agreement has the same composition as for other types of loans between individuals.

Features of taxation

A loan agreement between legal entities has nuances in the preparation of fiscal payments for each of the parties - these issues are regulated by the Tax Code of the Russian Federation (TC RF). According to Article 146 of this document, funds provided in the form of a loan are not subject to taxation of fiscal payments. At the same time, situations are common when employees of the Federal tax service(Federal Tax Service) see profit (the so-called non-operating income) in an interest-free loan agreement at the expense of unpaid interest, requiring payments to be made from the saved amounts.

In practice, the borrower can counter this requirement with the wording from Article 41 of the Tax Code of the Russian Federation, which states that income is material benefit. It is problematic to establish it in case of savings, with an uncertain interest rate, so the recipient of the loan is exempt from income tax. At controversial situations the issue should be disputed judicial procedure. In case of a paid loan agreement, the amount of interest under the Tax Code of the Russian Federation is considered a fee for the service (accounted for as expenses when preparing reports) and is also not subject to fiscal payments.

When lending in cash, according to Article 149 of the Tax Code of the Russian Federation, the lender is exempt from value added tax (VAT). If the loan is issued in a commodity/material form, payment of VAT is required (it must be included in the issued invoice). The receipt by the lender of interest on the loan issued implies their mandatory classification as income with the payment of the income tax required by law.

Repayment procedure and interest payment

A properly drafted loan agreement between legal entities should contain a section that states how the borrower will pay. The most common option is when the entire amount is paid at a predetermined interval, and accrued interest is added to it. But there may be other schemes, for example, the agreement does not set a strict deadline for the return of funds, and the creditor organization can claim the debt if necessary. As a general rule, the debt in this case must be repaid within 30 days.

Duration of the loan agreement

This period is necessarily specified in the document regulating financial relations parties, and is very important when business disputes arise regarding debt repayment. It must be taken into account that the validity period of the agreement does not count from the day it is signed, but from the moment when the lender delivers to the borrower the required amount or the agreed quantity of goods. The validity period of this document ends with the end of payments on the loan received. The lender should be aware that period limitation period under such agreements there may be no more than 3 years.

Instead of a bank loan, a legal entity can borrow money from a private investor or another company. Typically, you have to pay interest to the lender for using a loan, and in the case of an interest-free loan, the borrower pays a tax to the state. In order for the loan to be beneficial to both parties to the agreement, they calculate what the interest rate should be under the loan agreement between legal entities.

How to draw up a loan agreement between legal entities

Agreements between legal entities are drawn up in writing. The contract specifies the essential terms; without them, the court will invalidate the agreement. In order not to take risks, you should draw up an agreement in a notary’s office - the notary will make sure that the document is literate from the point of view of the law.

You can borrow not only money, but also goods, raw materials, and property. In this case, the parties draw up a list of property and describe in detail its name, quantity and features. The borrower returns exactly what he borrowed. You cannot pay money instead of property - the tax office will consider such a transaction a purchase and sale and will oblige the lender to pay income tax.

Company managers indicate in the agreement the following essential conditions:

  • names, legal addresses and details of organizations;
  • what exactly the lender lends to the borrower and in what quantity;
  • when the borrower pays the lender and how.

Whether the lender needs to pay interest monthly is up to the parties to decide for themselves. The debt can be paid monthly, quarterly, with one transfer at the end of the contract term. The borrower gives cash to the lender, transfers money to a current account, or sends bank details.

Additional conditions in a loan agreement between legal entities

The contract can indicate additional conditions, which clarify the agreement, for example:

  • what liability does a borrower or lender bear if they violate obligations under the contract;
  • what to do in a force majeure situation, for example, if the borrower gets sick and cannot pay;
  • how to resolve possible disputes, for example in negotiations or in court;
  • whether the agreement can be extended and under what conditions.

A lender may offer a targeted loan to ensure that the borrower is spending money on the business. In this case, the purpose of the loan is specified in the agreement, and the borrower is obliged to spend the money for this purpose. If the borrower spends the loan on something else, the lender has the right to terminate the contract and demand early repayment of the debt.

Minimum interest rate under a loan agreement between legal entities in 2019

A legal entity lends money with or without interest. The law does not limit the minimum percentage under a loan agreement between legal entities. Banks offer entrepreneurs money at 6-20% per annum, and a private organization sets the rate at its discretion.

The company can give money without interest, for example, if the founder and the borrower are old friends. But in this case, the borrower pays 21% per annum of the loan amount to the budget.

According to the law, a company that uses money for free receives a material benefit - it must be paid monthly tax. The benefit is 5% of the loan, and the tax is 35% of the benefit.

For example, a company borrows 300,000 rubles for a year, the agreement is interest-free.

The material benefit is 15,000 rubles, the monthly tax is 5,250 rubles.

During the year, the borrower will pay 5250 * 12 = 63,000 rubles to the budget, which is 21% of the loan amount.

At what rate should loans be issued to legal entities in order not to overpay?

In order not to receive material benefits and not to pay 21% to the budget, you should draw up an interest-bearing loan agreement with a minimum rate. The rate at which there is no material gain is? from the refinancing rate. As of January 2019, it is equal to 7.75%, which means that money should be given at 5.2% per annum or higher. For a loan of 300,000 rubles, the borrower overpays 15,600 rubles - four times less than with an interest-free agreement.

If a company lends money at interest, it earns income. The company declares income and pays income tax - up to 20% depending on the tax form.

An interest-free loan is also taxed if the legal entities are interdependent and the loan size exceeds 1 billion rubles. Companies are considered interdependent when at least 25% of one company is owned by another. In this case, the lender pays tax on lost profits: he could have invested 1 billion rubles and earned money, but gave the money for free use.

What is important to know about a loan agreement between legal entities

The company has the right to issue no more than four loans during the year. To give a loan for the fifth time, you need to obtain a license for lending activities. If this is not done, the company’s management will fall under criminal liability under Article 172 of the Criminal Code.

No more than 100,000 rubles can be issued in cash. Larger loans must be posted to a current account or sent to bank details. If an entrepreneur wants to borrow 200,000 rubles in cash and draws up two contracts of 100,000 rubles each, he risks paying a fine. The amount of the fine for legal entities is up to 50,000 rubles.

Loans over 600,000 are registered by the parties in Federal service on financial monitoring. To do this, you need to go to the service’s website and fill out the form. If a company hides a large loan, it pays a fine. The legal entity is fined 200,000 rubles, the general director - 20,000 rubles.

The money that an entrepreneur receives under a loan agreement between legal entities can only be spent on business. For example, an entrepreneur can repay a company's debt to the state, but not his own loan. If a business owner or CEO spends borrowed money on himself, he risks receiving fines and penalties or being subject to criminal liability.

What is better to choose: interest-free or interest-bearing loan between legal entities

It is more profitable for the borrower to take an interest-bearing loan with a minimum rate of 5.2% - so he pays four times less than without interest-bearing loan. A lender who lends money at interest pays income tax, but makes money on the interest itself.

Yes, the loan agreement should be drawn up in writing; this is directly provided for by the provisions of paragraph 1 of Article 808 of the Civil Code of the Russian Federation and paragraph 2 of Article 5 of the Law of June 19, 2000 No. 82-FZ. An oral loan agreement can only be between citizens for an amount less than 1000 rubles.

Even if organizations are interdependent (affiliated) entities, they have the right to enter into loan agreements among themselves(on any terms, with any interest rate, incl. interest-free loans), since civil legislation does not establish any prohibitions on such activities.

At the same time, from January 1, 2015, the standardization of expenses for paying interest for the use of borrowed funds will cease. Organizations can account for accrued interest as part of non-operating expenses without restrictions, based on the actual rate stipulated by the terms of the transaction. The exception is interest on controlled transactions (transactions involving foreign entities), for interdependent Russian organizations it doesn't work).

Wherein interdependent persons must obtain the approval of the founders for such a transaction.

How to apply for a loan

A loan can be issued, as well as received, by any organization or person, including an entrepreneur. To do this, draw up a loan agreement with the recipient (borrower).*

How to draw up a loan agreement

What is also important: for a loan for which interest is provided, indicate how and when they must be paid. If this is not done, the borrower will have to pay interest monthly until the debt is fully repaid (clause 2 of Article 809 of the Civil Code of the Russian Federation).

When the contract comes into force

The loan agreement comes into force as soon as the borrower receives money or other property under it. Until this happens, the contract is not considered concluded. Even if it was signed by both parties. How does this affect accounting? It is on the day of transfer of borrowed funds that the counterparty has an obligation to repay the debt. And it is on this date that the lender must reflect the receivables.

Wherein total amount The loan specified in the contract is not so important. What matters more is how much was actually transferred to the borrower. Let's say the loan amount is 10,000 rubles, but the borrower received only 5,000 rubles. So, only for the amount of 5,000 rubles. a debt arises and an obligation to repay it (along with interest, if any was provided). This follows from the provisions and paragraph 2 of paragraph 1 of Article 807 of the Civil Code of the Russian Federation.

Loan payments

The borrower is obliged to repay the debt within the period and in the order specified in the agreement. If the repayment period is not established, then the debtor must repay the loan no later than 30 days after the lender requests it. This is stated in paragraph 1

Determine the return period in calendar days.

According to the Civil Code, it is in calendar days, and not in working days, that deadlines are calculated. In this case, the period must be counted from the day following the date on which the organization made a demand to repay the loan. If the last day on which the debtor is obliged to make final payments falls on a non-working day, then this period is postponed to the next working day. This is established in articles and of the Civil Code of the Russian Federation.

A cash loan can be paid both in cash and non-cash (Clause 1, Article 807 of the Civil Code of the Russian Federation). However, it is easier to make payments through a bank, because then you will not have to comply with the established limits for cash payments.

The debtor can repay the loan ahead of schedule. But if interest was provided, then close the debt ahead of schedule possible only with the consent of the lender. When the loan is interest-free, such permission is not required. This procedure is established by paragraph 2 of Article 810 of the Civil Code of the Russian Federation.

Was the loan issued to an employee? Then the amount of principal and interest can be withheld from his salary. But no more than 20 percent per month. This restriction is set Labor Code RF.

After issuing a cash loan, draw up expenses cash order according to form No. KO-2. When repaying the loan and interest, draw up a cash receipt order in form No. KO-1. The forms of these cash documents approved by Resolution of the State Statistics Committee of Russia dated August 18, 1998 No. 88. It is mandatory to use them.

If settlements for the loan are non-cash, then the transferred amounts will appear in payment orders in form No. 0401060.

Calculation restrictions

Borrowed money can be issued in cash or transferred to the borrower's bank account. Choose the second option when it comes to a large loan amount. The fact is that you can give out no more than 100,000 rubles in cash. under one contract. Such a restriction is contained in paragraphs and Directive of the Bank of Russia dated October 7, 2013 No. 3073-U.

Attention: When issuing a cash loan, comply with the established payment limit, otherwise you will be fined.

Maximum size Cash settlements amount to RUB 100,000. This limit applies to settlements under one agreement:
– between organizations;
– between the organization and the entrepreneur;
- between entrepreneurs.

Situation: when issuing a loan requires permission from the participants (founders, shareholders)

Such permission must be obtained if the loan is issued large sum or the transaction according to the criteria relates to transactions with interested parties.

Thus, a large amount is considered to be an amount that is equal to or exceeds 25 percent of the value of the organization’s assets as of the last reporting date. This follows from the provisions of paragraphs and Article 46 of the Law of February 8, 1998 No. 14-FZ.

The list of those who may be interested in completing a transaction is determined by paragraph 1 of Article 81 of the Law of December 26, 1995 No. 208-FZ and paragraph 1 of Article 45 of the Law of February 8, 1998 No. 14-FZ. For example, an interested party transaction would be the issuance of a loan to the spouse, parents or children of the head of the organization. The loan amount does not matter in this case.

In both cases, if there is no permission from the participants (founders, shareholders), the loan agreement may be declared invalid. This is directly established in paragraph 5 of Article 45, paragraph 5 of Article 46 of the Law of February 8, 1998 No. 14-FZ, as well as in paragraph 6 of Article 79 and the Law of December 26, 1995 No. 208-FZ.

The decision to grant a loan is made by:

  • general meeting or sole participant of the LLC;
  • general meeting of shareholders of the joint-stock company;
  • the board of directors or supervisory board is not commercial organization.

In order to correctly take interest into account for taxation, a number of conditions must be met. For example, in what order are they paid, what tax regime applied by the borrower organization, in what amount these expenses can be recognized, etc.

Only interest that relates to controlled debt must be taken into account in a special way.

BASIC

From January 1, 2015, the standardization of expenses for paying interest for the use of borrowed funds will cease. Organizations can take accrued interest into account as non-operating expenses without restrictions, based on the actual rate stipulated by the terms of the transaction. An exception is interest on controlled transactions.

Taxable profit can be reduced only by justified, documented and income-generating expenses. This means that only interest that:

  • The organization repays a loan taken for commercial needs. That is, borrowed funds are used to generate income. For example, interest on a loan taken to provide charity cannot be taken into account in expenses (letter of the Ministry of Finance of Russia dated March 16, 2011 No. 03-03-06/1/140), but on a loan taken for the purchase of production equipment - it is possible (letter of the Ministry of Finance of Russia dated July 19, 2010 No. 03-03-06/1/466);
  • confirmed by properly executed documents. Namely, an agreement, a bank statement - confirming receipt of money from the lender, receipt order– if the loan was received by property, etc.

Such requirements are specified in paragraph 1 of Article 252 of the Tax Code of the Russian Federation.

Limit on controlled transactions

For debt obligations in controlled transaction An organization has the right to take into account interest calculated based on the actual rate when calculating income tax, but only if this rate is less.

Interest rate limits on debt obligations can be linked to:

  • international rates EURIBOR, SHIBOR, LIBOR.

It all depends on the currency in which the obligations are issued. So, for example, for a contract in euros, the interval is set from the rate EURIBOR + 4% to the rate EURIBOR + 7%. For more information about this, see the table.

Does the agreement provide for a change in the interest rate? Then use the key rate (EURIBOR, SHIBOR, LIBOR) valid on the day interest is calculated (subclause 2, clause 1.3, article 269 of the Tax Code of the Russian Federation). Moreover, if the key rate (EURIBOR, SHIBOR, LIBOR) changes in the next reporting period, do not recalculate the interest rate limits for previous reporting periods.

With regard to the intervals of maximum interest rates on debt obligations in foreign currency apply the EURIBOR (SHIBOR, LIBOR) rate for the period that most closely matches the term of the loan (credit) under the agreement. This follows from the provisions of subparagraph 3 of paragraph 1.3 of Article 269 of the Tax Code of the Russian Federation.

For debt obligations in a controlled transaction, the total amount of interest that can be taken into account when calculating income tax in full when interest rate:

  • less than the maximum value of the limit value interval;
  • greater than the maximum value of the limit value interval and less than ,

calculate using the formula:

If the interest rate is greater than the maximum value of the interval of limit values ​​and greater than the maximum value of the interval of the market price of a similar loan (credit), then the amount of interest that can be taken into account when calculating income tax is determined by the formula:

Representatives of the Russian Ministry of Finance confirmed in a letter dated January 16, 2012 No. 03-03-06/1/16 that the actual number of calendar days per year – 365 (366) – should be used in the calculation.

From the recommendation of Vladislav Kuznetsov, leading expert of the Sistema Lawyer, Vladislav Dobrovolsky, retired judge, candidate of legal sciences, Gennady Uvarkin, deputy general director Legal Bureau "Omega", Candidate of Legal Sciences

What is an interested party transaction and what is the procedure for completing it in an LLC

Individual transactions in an LLC can be concluded only after their approval by the general meeting of participants or the board of directors. Such transactions include, in particular, the so-called “transactions in which there is an interest.” If you do not follow the procedure for completing them, the court may declare the transaction invalid.

In this regard, when preparing for a transaction, a lawyer needs to check whether it falls under the criteria of an interested party transaction and, if it does, follow the procedure for completing it.

Which transactions are interested party transactions?

The essence of an interested party transaction is best illustrated with a simple example: when an LLC enters into civil contract(for example, a purchase and sale or contract agreement) with its director is an interested party transaction, the director is interested in it.

In practice, everything is a little more complicated. List of persons who are in this case can be in place of the director, installed in Federal Law dated February 8, 1998 No. 14-FZ “On companies with limited liability"; hereinafter referred to as the LLC Law). These include:

  • sole executive agency company (hereinafter referred to as director);
  • members of the board of directors (supervisory board);
  • Members of the Board;
  • a person who has the right to give instructions to the company that are binding on it;
  • members of the company who, together with their affiliates, have 20 percent or more of the votes of the total number of votes of the company's participants.*

In addition, it is necessary to take into account not only these individuals themselves, but also their spouses, parents, children, full and half siblings, adoptive parents and adopted children and (or) their affiliates.

But that's not all. These persons do not have to be themselves a party (or beneficiary) to the transaction for the LLC to consider it an interested party transaction. A party to a transaction may be a legal entity; such a transaction will also be an interested party transaction if these persons:

  • occupy positions in the management bodies of this legal entity;
  • own (including in aggregate) at least 20 percent authorized capital this legal entity.

In addition, the counterparty to the transaction may generally be a third party, but the transaction will be recognized as an interested party transaction for the LLC if the director, members of the board or other persons listed in the LLC Law in relations with the company:

  • act on behalf of these third parties;
  • occupy positions in the management bodies of a legal entity that acts in the interests of these third parties;
  • own (including in aggregate) at least 20 percent of the authorized capital of a legal entity that acts in the interests of these third parties;
  • occupy positions in management bodies management company a legal entity that acts in the interests of these third parties.

The charter may expand this framework and include additional other transactions as interested party transactions.

A transaction is recognized as an interested party transaction only when the indicated persons (or one of them) meet the signs of interest at the time of the transaction (subclause 2, clause 9 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 16, 2014 No. 28 “On some issues related to contested major transactions and interested party transactions" (hereinafter referred to as Resolution No. 28), paragraph 14 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 13, 2001 No. 62 "Review of the practice of resolving disputes related to the conclusion of major transactions and transactions by business companies in which there is an interest ").

If the specified persons once met the signs of interest, but at the time of the transaction there are no such signs, the transaction is not recognized as an interested party transaction.

What is the procedure for completing an interested party transaction?

The company has the right to enter into an interested party transaction only after it has been approved by the participants. If a board of directors has been created in a company, then the company’s charter can entrust it with the authority to make decisions on making interested party transactions, the amount of payment or the value of property for which does not exceed 2 percent of the value of the company’s property, determined on the basis of data financial statements for the last reporting period(clause 3 of the Law on LLC “On approval of the Regulations on additional requirements for the procedure for preparing, convening and conducting general meeting shareholders”, Order of the Federal Medical and Biological Agency of Russia dated September 1, 2011 No. 357 “On organizing work in the Federal Medical and Biological Agency to coordinate major transactions with subordinate federal state unitary enterprises, as well as transactions related to the provision of loans, guarantees, receipt of bank guarantees, other encumbrances, assignment of claims, transfer of debt, borrowing and other transactions”).

Thus, special legislation may establish more stringent requirements for the procedure for approving a transaction than the Civil Code of the Russian Federation. For example, paragraph 3 of Article 45 of the LLC Law stipulates that the decision to approve a transaction must indicate the person or persons who are the parties, beneficiaries in the transaction, the price, subject of the transaction and its other essential conditions. While paragraph 3 of Article 157.1 of the Civil Code of the Russian Federation establishes that in the consent to enter into a transaction it is sufficient to determine the subject of the transaction.

An interested party transaction that has not been previously approved is voidable and can only be declared invalid by a court decision based on the request of the LLC or its participant in the presence of the circumstances provided for in paragraph 5 of Article 45 of the LLC Law.

There is no need to approve an interested party transaction in the following cases (Clause 6, Article 45 of the LLC Law):

if the company consists of one participant who simultaneously performs the functions of a director;*

if all participants are interested in the transaction;

when a share (part of a share) in its authorized capital is transferred to the company (in case of withdrawal of a participant, redemption of a share from a participant);

when transferring rights to property in the process of reorganizing a company, including merger agreements and accession agreements;

if these are transactions, the completion of which is mandatory for the company in accordance with the law and settlements for which are made at prices determined authorized body authorities.

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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. various types business.

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 of funds, or expressed in a specific amount for the entire term of the agreement or a certain period of use of the 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, by.

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 the 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 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:

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

The agreement 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.

You can download a sample interest-bearing loan agreement between legal entities here.

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 contract 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 of the borrowed funds. But borrowers are in no hurry to fulfill such demands voluntarily.

If payments under the loan agreement have ceased, 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.

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 on the basis key rate Central Bank of the Russian Federation at the time of transfer of 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.

In this case, we can also talk 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:

  1. 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.
  2. 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.

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