Rates for loan agreements. Tax risks when providing loans to related parties. Reduction of contractual interest

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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. According to the agreement, one company can borrow from another company cash or things that have generic characteristics (brand, model).

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, .

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 agreement may also include various additional conditions relating to the security and purposes of the loan, the procedure early repayment or extension of time 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 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 interest rate may lead to the fact that the transaction may be recognized as 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 if the refinancing rate is more than 20% lower, the option cannot be ruled out that you will have to document that the borrower did not experience any savings from such savings. material benefit, and to the lender 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.

11.10.2016 "Financial Director", October 2016

Anna Manaenkova
lawyer

A loan agreement between legal entities helps one company to raise funds, and the other to make money from it. There are important conditions that you should pay attention to in order to enter into a safe loan agreement.

According to civil law, a loan agreement is an agreement between one party (the lender) to transfer money or another thing into the ownership of the other party (the borrower). The borrower undertakes to return the same amount of money or an equal amount of other things received by him of the same kind and quality (note that it is possible to conclude an interest-free loan agreement between a legal entity and an individual).

Clearly state the subject of the loan agreement

The condition on the subject of the contract is essential, therefore it must be agreed upon by the parties (clause 1 of Article 432 of the Civil Code Russian Federation). If the court comes to the conclusion that the subject of the contract is inconsistent, it will be recognized as not concluded and will not give rise to legal consequences for the parties (resolution of the FAS of the East Siberian District dated 08/09/2010 in case No. A10-3789/2009; resolution of the FAS of the Ural District dated 02/19/2008 No. F09-741/08-C5 in case No. A60-17030/2007-C2; resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated January 27, 2012 in case No. A17-6065/2010).

Guided by the rules of articles 140 and 317 Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), the parties can indicate the size of the loan in two ways:

in a fixed amount indicating the loan currency ( Russian rubles or a specified foreign currency, if the parties have the right to exercise currency operations);
V calculated value, i.e. equivalent to the amount in foreign currency.

Record the fact of transfer of borrowed funds

By virtue of Article 807 of the Civil Code of the Russian Federation, a loan agreement is concluded from the moment the lender transfers money or other things to the borrower. Such confirmation may be a receipt, payment order indicating the purpose of payment, cash receipt order, receipt or other document executed properly. If it is impossible to prove the fact of transfer of the loan amount under the agreement, then such an agreement will be considered not concluded (resolution of the Federal Antimonopoly Service of the West Siberian District dated October 9, 2013 in case No. A03-12279/2012).

At the same time, if the agreement does not contain a properly agreed upon loan amount, the presence and content of documents certifying the fact of transfer to the borrower of a certain amount (payment orders for the transfer of funds by the lender to the borrower, cash receipts, receipts for receipts) are essential. cash orders and etc.). The loan amount will be determined from the contents of these documents, and the agreement will be considered concluded for the amount that was actually transferred (clause 2 of Article 433, paragraph 2 of clause 1 of Article 807, clause 2 of Article 808, clause 3 Article 812 of the Civil Code of the Russian Federation, Determination of the Supreme Arbitration Court of the Russian Federation dated July 3, 2008 N 8032/08 in case N A53-5796/07-C2-6).

Article 812 of the Civil Code of the Russian Federation provides for the right of the borrower to challenge the agreement on the grounds of lack of money, proving that money or other things were not actually received by him from the lender or were received in a smaller quantity than specified in the agreement. When money or things are actually received in a smaller quantity than specified in the contract, the contract is considered to be concluded for this amount of money or things. It is worth noting that challenging a loan agreement due to lack of funds is an exclusive feature of the borrower under the loan agreement.

Specify in the agreement the amount of interest paid by the borrower

Interest under a loan agreement, paid in the amount and manner determined by paragraphs 1 of Article 809 of the Civil Code of the Russian Federation, is payment for the use of funds provided by the lender (clause 15 of the resolution of the Plenums Supreme Court RF and the Supreme Arbitration Court of the Russian Federation dated 08.10.1998 N 13/14 “On the practice of applying the provisions of the Civil Code of the Russian Federation on interest for the use of other people’s funds”).

If a loan agreement between legal entities does not contain a clause on interest on the loan amount, it is recognized as compensated (clause 3 of Article 424 of the Civil Code of the Russian Federation). The lender has the right to demand that the borrower pay a fee for use. The amount of remuneration will be determined as a percentage of the loan amount at the bank interest rate (refinancing rate) in effect on the day the borrower pays the debt amount (part of it) at the location (and if the lender is individual, - at the place of residence) of the lender (clause 1 of Article 809 of the Civil Code of the Russian Federation).

When agreeing on the amount of interest for using a loan amount that is significantly higher than the refinancing rate (for ruble loans) or the interest rate on foreign currency loans (for loans in foreign currency), it is necessary to understand the risks that may arise. The legislation of the Russian Federation does not establish a limit on the maximum amount of interest that can be established in the agreement by the parties, however, the borrower can apply to the court with a claim to invalidate the loan agreement due to its servitude (clause 3 of Article 179 of the Civil Code of the Russian Federation). Inclusion in the contract this condition will be recognized as an abuse of rights on the part of the lender. The interest may be reduced by the court, and the lender will receive an amount less than that which was provided for by the terms of the agreement.

Judicial practice in this matter is not clear:

establishment high percentage for the use of borrowed funds is an abuse of right, in which the court can reduce the amount of interest (resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated September 26, 2006 in case No. A43-3546/2006-4-74, resolution Arbitration Court North Caucasus District dated January 26, 2016 N F08-9167/2015 in case N A53-3119/2015, resolution of the Federal Antimonopoly Service of the North Caucasus District dated March 1, 2001 N F08-416/2001);
establishing a high interest rate for the use of borrowed funds is not an abuse of right (resolution of the FAS of the East Siberian District dated January 28, 2008 N A10-2382/07-F02-9946/07 in case N A10-2382/07, resolution of the FAS of the North-Western District dated 05/20/2003 N A13-3957/02-12, resolution of the Federal Antimonopoly Service of the North Caucasus District dated 05/04/2012 in case N A32-21318/2011);
establishing a high interest rate for the use of borrowed funds is not an abuse of right unless the inclusion of this condition in the agreement at the insistence of the lender is proven (resolution of the Federal Antimonopoly Service of the North Caucasus District dated June 20, 2006 N F08-2680/2006 in case N A61-2402/2005-3 ).

Procedure and term for repayment of borrowed funds

At the discretion of the parties, the procedure and period for repayment of borrowed funds may be determined by the loan agreement, otherwise the provisions of paragraph 2, clause 1, art. 810 of the Civil Code of the Russian Federation.

Judicial practice on this issue states:

if the agreement provides for the borrower’s obligation to repay the loan amount in installments before a certain period, but the immediate procedure for repayment has not been agreed upon, then the borrower must repay the funds in a lump sum at the end of the term (determination of the Supreme Arbitration Court of the Russian Federation dated July 23, 2009 No. VAS-9392/09 in case No. A65- 19764/2008-SG1-5);
if the loan agreement does not indicate the period for repayment of the loan amount, but the validity period of the agreement is determined, then such a period can be recognized by the court as the period for repayment of the loan amount (resolution of the Federal Antimonopoly Service of the Moscow District dated October 14, 2010 N KG-A41/12023-10 in case No. A41- 1940/10);
if different terms for the return of funds are indicated in copies of the agreement or in its copies (in the absence of an original copy of the agreement), the agreement is considered concluded if there is evidence confirming the transfer of the loan amount. The period for repayment of the loan amount in this case is determined by the rules of paragraph 1 of Art. 810 of the Civil Code of the Russian Federation, that is, the loan amount must be repaid within 30 days from the date of presentation of the claim by the lender (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 04/05/2011 N 16324/10 in case N A40-146172/09-42-745).

Include in the loan agreement liability for failure to comply with repayment conditions

The liability of the parties for failure to fulfill the conditions for repaying the loan amount is regulated by Article 395 of the Civil Code of the Russian Federation. At the same time, legal entities can independently stipulate in the loan agreement liability for improper execution monetary obligation, one of two ways to calculate interest:

A simple way is to charge interest only on the unrepaid amount of the loan.
The complex method (“compound interest”) is the calculation of interest not only on the loan amount, but also on the amount of interest accrued but not paid on time. This method of calculation is used to encourage the borrower to repay the principal debt on a timely basis.

Judicial practice on the issue of admissibility of accrual " compound interest» under a loan agreement between legal entities is not unambiguous:

accrual of a penalty or interest for the use of someone else's money in the amount of interest for the use of a loan is permissible if this is provided for in the agreement (resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated April 13, 2010 in case No. A43-15748/2009, Determination of the Supreme Arbitration Court of the Russian Federation dated May 16, 2011 No. VAS -5624/11 in case No. A56-92572/2009, Resolution of the Federal Antimonopoly Service of the Moscow District dated October 29, 2012 in case No. A40-21699/12-97-101);
the accrual of a penalty or interest for the use of someone else's money in the amount of interest for the use of a loan is permissible regardless of the presence of such a condition in the agreement. (resolution of the Federal Antimonopoly Service of the Moscow District dated August 27, 2009 No. KG-A40/7497-09-B in case No. A40-14147/09-97-152, resolution of the Tenth Arbitration Court of Appeal dated March 31, 2011 in case No. A41-31454/10) ;
accrual of a penalty or interest for the use of someone else's money in the amount of interest for the use of a loan is unacceptable, regardless of the presence of such a condition in the loan agreement (Resolution of the Federal Antimonopoly Service of the North Caucasus District dated May 24, 1999 N F08-888/99).

At point 13 newsletter The Presidium of the Supreme Arbitration Court of the Russian Federation dated September 13, 2011 No. 147 states: “due to the fact that an increase in interest for using a loan in the event of a violation by the borrower of the obligation to repay the loan represents a measure of the debtor’s liability for violation of the obligation, the court, taking into account the circumstances of the case, has the right, on the basis of a reasoned statement the defendant to reduce the amount of the said interest in accordance with Article 333 of the Civil Code of the Russian Federation.” This position is also reflected in the resolution of the Federal Antimonopoly Service of the Far Eastern District dated 04.05.2012 N F03-1391/2012 in case No. A59-3018/2011, the resolution of the Arbitration Court of the West Siberian District dated 14.10.2015 N F04-24556/2015 in case No. A03 -13567/2014, resolution of the Federal Antimonopoly Service of the Moscow District dated August 19, 2011 N KG-A40/7099-11 in case No. A40-99951/10-31-900 and others.

It should be noted that, by virtue of Article 808 and paragraph 2 of Article 434 of the Civil Code of the Russian Federation, a loan agreement between legal entities must be concluded in writing. It can be sent by fax, regular mail or email, allowing you to reliably establish that the document comes from the party to the contract.

To summarize, I would like to note that when concluding a loan agreement between legal entities, it is also necessary to make sure that there are no grounds for invalidating the agreement in the future (§ 2 of Chapter 9, Subsection 4, Section 1 of the Civil Code of the Russian Federation). In addition, the borrower needs to objectively assess his strength, that is, realistically understand that after a certain amount of time he will have the opportunity to repay the amount of debt and pay interest.

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 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 the current legislation of the 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:

An interest-bearing loan between legal entities is an agreement according to which the lender (creditor) transfers to the borrower a certain amount of funds or other valuables on the conditions that the debtor will return them (amount, valuables) in accordance with the signed agreement.

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Such transactions are supported by relevant documents. The loan agreement has a lot of nuances and to avoid typical mistakes, it is better to draw it up with a lawyer. Often deals are concluded with additional conditions, for example, with the use of collateral or a guarantee from the founders or director.

Lending terms

Most often, loans between legal entities are possible in the following situations:

lending to a subsidiary;
providing a loan to one of the enterprises included in the holding;
issuing a loan for the production of products and further payment with these goods.

Absolutely all lending conditions (interest rate, period, size, loan provision and repayment scheme) are negotiated individually.

When concluding a transaction, you must sign a loan agreement. Form standard contract free, but there are a lot of nuances that are best dealt with by an experienced lawyer.

For example, if money or valuables are transferred at a certain percentage, this must be stated in the document, otherwise the lender has the right to demand payment of interest, the amount of which will be equal to the refinancing rate on the current date. Tax authorities may also have questions.

Decor

The registration procedure will not take much time if all clauses of the contract are agreed upon and options are found that satisfy both parties.

To receive a loan, legal entities sign loan agreement(repayment schedule, additional agreements, receipt, etc.) and only after that the loan amount is transferred to the borrower’s current bank account or issued in cash.

Profitable offer

Interest-bearing loans between legal entities are a popular service. Such loans are provided to partner companies, subsidiaries, and less often to unrelated business entities.

Loan terms are negotiated individually and depend on many factors:

Interest-bearing loan agreement between legal entities

IN mandatory A written agreement is drawn up between legal entities. It is not necessary to notarize the document. At the discretion of the parties, a receipt for the transfer of the agreed amount of funds may be drawn up.

Please note that the loan is considered reimbursable by default unless otherwise specified in the transaction.

A transaction is considered interest-bearing if it does not indicate that it is interest-free. If the rate is not agreed upon, the borrower will still pay interest at the refinancing rate.

All clauses of the agreement are prepared to meet the specific requirements of both parties; if there are disagreements, a protocol of disagreements is written down.

Tax consequences

All transactions under an interest-bearing loan agreement on the part of the client (borrower) are not subject to taxes.

For the lender, everything is not so simple; you need to draw up documents correctly. To minimize claims from tax authorities, the rate should be specified in the document.

Postings

Any legal entity may provide or receive interest-bearing loans(unless otherwise provided by the Charter or legislation). The lending period for such loans can be different: short-, medium- and long-term.

If the loan is obtained for a short period, that is, up to one year, then records must be kept in account 66. The money can be withdrawn in cash or by transfer to the account.

The following accounting entries should be made:

Dt 50 (51.52) – Kt 66 – obtaining a loan.

Redemption, reverse posting:

Dt 66 – Kt 50 (51.52) – debt repayment.

Additional expenses associated with receiving money are charged to account 91 (Dt91 - Kt 66).

If the loan is provided for a long period, accounting is kept in account 67.

At the refinancing rate

The fee for using the loan is determined individually and is specified in the contract. If the document does not indicate rates (there is no specific percentage and it is not stated that the loan is interest-free), then the loan fee is determined automatically and is equal to the refinancing rate on the day the borrower pays the debt amount.

Please note that in 2020 the refinancing rate is 10.5% per annum.

Interest rates

The fee for using the loan is set at the discretion of the parties. The legislation does not provide any restrictions on this item.

But it is worth remembering that the contract must necessarily indicate the rate, otherwise interest must be accrued at the refinancing rate.

If a loan between legal entities is interest-free, this must be stated in the agreement. If you do not indicate in the documents that the loan is interest-free, the accrual will be made at the refinancing rate.

Documentation

To receive money, both parties to the transaction sign a loan agreement, and also, if such documents are necessary: a protocol of disagreements, additional agreements, a payment schedule.

When receiving funds in cash, the borrower writes a receipt indicating receipt of funds. Such transactions do not require notarization.

To conclude this agreement you need:

the articles of association of both companies;
passports of persons authorized to sign such documents;
orders on the appointment of persons authorized to sign financial documents;
cards with sample signatures of persons authorized to sign financial documents.

Recipient requirements

Requirements for the recipient are determined individually. Standard lending conditions are the borrower's solvency. At the legislative level, there are no prohibitions on one legal entity receiving a loan from another.

Also, the charter of the enterprise should not contain prohibitions on such actions. The borrower must use the money received for the purposes specified in the loan agreement.

Debt repayment

Repayment by interest-bearing loan is carried out, in accordance with a previously signed agreement, one-time or in parts. If the transaction stipulates a one-time repayment, then the contract provides for a final date for the return of funds.

If the loan is repaid in installments, then it is signed additional document with a detailed refund schedule. It indicates minimum payments(loan body and accrued interest), timing of money transfer.

The borrower will be able to repay the loan in the ways specified in the agreement, for example:

through the lender's cash desk in cash;
by bank transfer to a current account;
by money transfer to the borrower's account.

Deadlines

The parties independently decide for how long the loan is provided. The legislation does not limit the lending period; between legal entities, a loan can be issued for a period from 1 day to 50 years.

At the end of the contract, the borrower is obliged to repay the loan and the interest accrued on it.

Definition minimum percentage under a loan agreement between commercial organizations, which does not contradict current legislation.

Question: What is the minimum percentage possible from the position of the State Tax Inspectorate under a loan agreement between commercial organizations?

Answer:

The terms of the loan agreement (interest rate, terms, repayment procedure) are determined by the parties in the loan agreement and are not limited by law.

Rationale

When calculating income tax, does the borrower need to take into account non-operating income from savings on interest when receiving interest-free loan

"No no need.

The unpaid interest amount is not recognized as the borrower's income. The amount of the interest-free loan received is also not taken into account when calculating income tax (and subclause 10, clause 1, article 251 of the Tax Code). Therefore, when using an interest-free loan, increase tax base no interest is required on the amount unpaid.

The legality of this approach is confirmed by regulatory agencies (letters from the Ministry of Finance dated May 11, 2012 No. 03-03-06/1/239, dated April 18, 2012 No. 03-03-10/38, dated April 2, 2010 No. 03-03-06/1/ 224) and arbitration practice (see, for example, resolutions of the Presidium of the Supreme Arbitration Court dated August 3, 2004 No. 3009/04, FAS Volga District dated November 25, 2009 No. A55-6151/2009, North Caucasus District dated March 28, 2008 No. F08-870/ 08-529A).

Is it necessary to determine income if the borrower and lender are interdependent persons? By general rule When taxing, any income that could be received in comparable transactions between non-dependent persons must be taken into account (clause 1 of Article 105.3 of the Tax Code, letter of the Ministry of Finance dated February 24, 2012 No. 03-01-11/1-15). To determine the amount of this income, you need to compare the conditions for obtaining interest-bearing and interest-free loans. However, for the borrower such a comparison does not make sense: he cannot receive any income from receiving, using and repaying both interest-bearing and interest-free loans.”

How to determine the market price of goods (works, services)

“According to the Civil Code of the Russian Federation, any transaction is considered compensated, unless otherwise follows from the legislation or agreement (clause 3 of Article 423 of the Civil Code of the Russian Federation). The transaction is paid at the price established by agreement of the parties (clause 1 of Article 424 of the Civil Code of the Russian Federation). From the standpoint of civil legislation, this price is recognized as a market price. If the contract does not specify the cost of the transaction, it is paid at the price that is usually charged for similar goods (work, services) under comparable circumstances (clause 3 of Article 424 of the Civil Code of the Russian Federation).

What's happened market price

What is the market price according to tax law

IN tax legislation determination of the market price depends on whether the transaction is recognized as controlled or not. If a transaction is made between non-related parties, then for tax purposes the contract price is recognized as the market price (clause 1 of article 105.3 and clause 1 of article 105.14 of the Tax Code of the Russian Federation). The compliance of prices used in transactions with market levels is controlled by representatives tax service during special inspections. While carrying out routine checks, inspectors can also carry out such controls if, when calculating specific tax it is required to use the market price indicator.

Contract price applied in controlled transaction, is recognized as market:

if it corresponds to the level of prices regulated by the state, or is agreed with the Federal Antimonopoly Service of Russia (taking into account the features specified in the Tax Code);

if it corresponds to the price determined independent appraiser(in transactions in which an assessment is required);

if it is established in accordance with the pricing agreement concluded with the Federal Tax Service of Russia;

if it is established in accordance with the special rules for determining prices for tax purposes, provided for in separate chapters of Part 2 of the Tax Code. For example, to calculate income tax using the market price valuable papers the price determined in accordance with the Tax Code is recognized (letter of the Ministry of Finance of Russia dated August 29, 2012 No. 03-03-06/1/436);

if the transaction is concluded based on the results of exchange trading.

This procedure follows from the provisions of paragraphs 8-12 of Article 105.3 of the Tax Code.”

“The principle of comparison of income

How to determine that the contract price corresponds to the market level

information on prices (limits of price fluctuations) and stock quotes, which are contained in official sources of information of state authorities and local governments (in particular, in the field of regulation of pricing and statistics, for example FAS Russia, Rosstat of Russia, etc.);

information on prices (price fluctuation limits) and stock quotes contained in information sources of foreign countries;

information on prices (price fluctuation limits) and stock quotes contained in other published and (or) publicly available publications and information systems;

data from information and pricing agencies;

information about the organization’s own transactions with independent parties.

If among the named sources the organization does not find (does not find enough) the necessary information, then it can use accounting and statistical reporting other organizations. This data can be obtained from the following sources:

publicly available Russian and foreign printed publications;

public information systems;

official websites of Russian and foreign organizations.

This procedure is provided for by the provisions of paragraphs and article 105.6 of the Tax Code.

Once the organization has selected the data necessary to compare the transaction (or, conversely, has ensured that it is missing (insufficient)), determine the market price using one of the following methods:

The organization has the right to apply any of these methods (either separately or combining several methods). It should be taken into account that, in addition to transactions for the acquisition of goods subject to resale, the method of comparable market prices has the highest priority. However, the use of this method is possible when the organization has all necessary information. If such information is not available or insufficient, other methods for determining the market price can be used. For this purpose, it is necessary to choose exactly the method (those methods) that more objectively characterizes the compliance of the contract price with the market level. In addition, the remaining methods can also be used when determining the market price of a group of similar transactions between related parties.

Under what conditions is it possible to provide a loan between legal entities?

"Question: on what conditions is it possible to provide a loan between legal entities? Is it possible to provide an interest-free loan or is it necessary to set a minimum interest rate?

Answer: the terms of the loan agreement (amount of interest, terms, repayment procedure) are determined by the parties in the loan agreement (Article, Civil Code of the Russian Federation) and are not limited by law. A loan agreement between legal entities must be concluded in writing (Article of the Civil Code of the Russian Federation).

Unlike loan agreement, which is compensated (Article of the Civil Code of the Russian Federation), for a loan agreement the payment of interest is not a prerequisite. The loan agreement is considered interest-free, unless it expressly provides otherwise, in certain paragraph 3 of Art. 809 of the Civil Code of the Russian Federation in cases. Many organizations indicate a small percentage in loan agreements, and some, to avoid unnecessary problems from the tax office, indicate a percentage equal to the refinancing rate. For a long time, there have been disputes over whether non-operating income arises when one legal entity receives an interest-free loan from another. The use of funds under a loan agreement without the lender charging interest was incorrectly assessed tax authorities as legal relations for the provision of services. In accordance with clause 5 of Article 38 of the Tax Code, a service for tax purposes is recognized as an activity whose results do not have material expression and are sold and consumed in the process of carrying out this activity. Relationships under a loan agreement do not have such signs. According to clause 1 of Article 807 of the Civil Code of the Russian Federation, under a loan agreement, one party (the lender) provides the ownership of the other party (borrower) with money or other things defined by generic characteristics, and the borrower undertakes to return to the lender the same amount of money (loan amount) or an equal amount other things he received of the same kind and quality. Consequently, the borrower, after receiving a loan, always has the obligation to return the property to the lender.

In connection with the above, in in this case there are no grounds for the occurrence non-operating income in the form of material benefits (additional interest on loans up to the level of the refinancing rate). This position is expressed in Letters from the Ministry of Finance of Russia dated March 14, 2007. No. 03-02-07/2-44, dated 02.20.2006 No. 03-03-04/1/128, Letter of the Federal Tax Service of Russia dated 13.01.2005 No. 02-1-08/5@, Letter of the Federal Tax Service of Russia for Moscow dated November 3, 2004 No. 26-12/71407. Arbitration practice on this issue has also developed in favor of taxpayers (given in the justification).

Meanwhile, the existence of arbitration practice suggests that, despite all the explanations and letters, disagreements with the tax authorities on this issue still exist.

The rationale for this position is given below in the materials of the Lawyer System.

1. Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated August 3, 2004. No. 3009/04

“The use of funds under a loan agreement without the lender charging interest was erroneously assessed by the cassation court as a legal relationship for the provision of services.

In accordance with paragraph 5 of Article 38 of the Code, a service for tax purposes is an activity whose results do not have material expression and are sold and consumed in the process of carrying out this activity. Relationships under a loan agreement do not have such signs.

As for paragraph 3 of Article 149 of the Code, this paragraph contains a list of transactions exempt from value added tax, and what operations involving the provision of funds on loan for these purposes, Chapter 21 of the Code “Value Added Tax” refers to as financial service, cannot be applied for purposes of imposing another tax.

The court of first instance rightly indicated that funds received by the company under a loan agreement on the terms of repayment of the same amount cannot be considered as received free of charge.

Paragraph 2 of Article 248 of the Code provides that for the purposes of taxation of profits of organizations, property (work, services) or property rights are considered received free of charge if the receipt of this property (work, services) or property rights is not associated with the occurrence of an obligation on the recipient to transfer the property (property rights) to the transferor (perform work for the transferor, provide services to the transferor).

According to paragraph 1 of Article 807 of the Civil Code of the Russian Federation, under a loan agreement, one party (the lender) provides the ownership of the other party (borrower) with money or other things defined by generic characteristics, and the borrower undertakes to return to the lender the same amount of money (loan amount) or an equal amount other things he received of the same kind and quality. Consequently, the borrower, after receiving a loan, always has the obligation to return the property to the lender.

In this case, the funds received under the loan agreement were subject to return by the company to the lender.”

2. Resolution of the Federal Antimonopoly Service NWO dated April 16, 2004 No. A56-40256/03

3. Resolution of the Federal Antimonopoly Service of February 22, 2005 No. Ф03-А51/04-2/3780

4. Resolution of the Federal Antimonopoly Service of the Moscow Region dated April 1, 2005 No. A-A41/2142-05 recommendations.”

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