What is the interest rate on a loan between legal entities? Tax risks when providing loans to related parties. Redemption, reverse posting

Interest-bearing loan between legal entities– 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 transactions 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. The form of the standard contract is 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, in 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 a 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

It is mandatory for legal entities to draw up a written agreement. 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 can 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, an additional document is signed with a detailed repayment schedule. It indicates the minimum payments (loan body and accrued interest), the timing of the transfer of money.

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.

Yes, the loan agreement must be drawn up in writing, this is expressly provided for by the provisions of paragraph 1 of Article 808 Civil Code RF and paragraph 2 of Article 5 of the Law of June 19, 2000 No. 82-FZ. IN orally A 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, including 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 take accrued interest into account as 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).

In this case, 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.

At the same time, the total loan amount specified in the agreement 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 a cash order in 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 were approved by Decree 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.

The maximum amount for cash payments is 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 a large amount of debt is issued or if 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;
• board of directors or supervisory board of a non-profit 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 is applied by the borrowing organization, in what amount can these expenses 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 the receipt of money from the lender, a 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 a 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 corresponds to 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 the interest rate is:

• 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 shown by simple example: when an LLC enters into a civil contract (for example, a purchase and sale or contract agreement) with its director, this 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 Limited Liability Companies”; hereinafter referred to as the LLC Law). These include:

• sole executive body of the company (hereinafter referred to as the 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 of the authorized capital of 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 with challenging 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 large transactions and transactions by business companies in the commission of 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 company has created a board of directors, 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 the 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 holding a general meeting of shareholders”, order of the FMBA of Russia dated September 1, 2011 No. 357 “On organizing work in the Federal Medical and Biological Agency for the approval of large 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, the subject of the transaction and 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 by the authorized authority.

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 transfers cash to the lender, transfers money to a current account or sends it using bank details.

Additional conditions in a loan agreement between legal entities

The contract can specify additional conditions that 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 pay a 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 falls 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

For the borrower, an interest-bearing loan with a minimum rate of 5.2% is more profitable - so he pays four times less than with an interest-free loan. A lender who lends money at interest pays income tax, but makes money on the interest itself.

Determination of the minimum interest 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 a borrower need to take into account non-operating income from savings on interest when receiving an 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, it is not necessary to increase the tax base by the amount of unpaid interest.

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 these incomes, 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 contract (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 is market price

What is the market price according to tax law

In tax legislation, the 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 the prices used in transactions with the market level is monitored by representatives of the tax service during special audits. While carrying out routine inspections, inspectors can also carry out such control if the calculation of a particular tax requires the use of a market price indicator.

The contract price applied in a controlled transaction is recognized as market price:

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 by an independent appraiser (in transactions in which an appraisal 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 (price fluctuation limits) and stock quotes, which are contained in official sources of information of the authorities state power and local government (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 the 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 a 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 with the tax authorities, 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 erroneously assessed by the tax authorities as a legal relationship 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 this case there are no grounds for the emergence of 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 that operations for the provision Money on a loan for these purposes, Chapter 21 of the Code “Value Added Tax” refers to it as a financial service and cannot be applied for the 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 taxing the 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 Russian Federation under a loan agreement, one party (the lender) provides the ownership of the other party (borrower) with money or other things determined by generic characteristics, and the borrower undertakes to return to the lender the same amount of money (loan amount) or an equal number of other things received by him 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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A. M. Khomich, senior expert at FBK Legal

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

Let's give a conditional example. The loan transaction was concluded between two Russian related parties on the following terms:

the loan is provided in rubles;

funds are provided to the borrower in installments;

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

interest for the use of borrowed funds is accrued monthly during the entire period of use by the borrower of the loan amount on the actual balance of the debt for each part of the loan amount as of the beginning of each calendar day of the current month at the rate of 1/365 (1/366) of the annual interest rate (8.25%) for each day of use of borrowed funds.

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

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

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

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

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

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

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

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

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

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

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

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

admit income

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

When providing a loan in installments, each new tranche, during which funds are transferred to the borrower, should be considered as new debt obligation, since by virtue of paragraph 1 of Art. 807 of the Civil Code of the Russian Federation, the loan agreement is considered concluded from the moment of transfer of money or other things. The Russian Ministry of Finance adheres to a similar position on this issue (see, for example, letter dated April 15, 2013 No. 03-03-06/1/12502).

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

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

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

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

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

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

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

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

These risks may arise if:

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

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

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

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

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

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

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

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

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

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

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

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

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

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