Question and answer: Taxation of the debtor and creditor using the simplified tax system

What does debt forgiveness entail for a creditor?

If the creditor releases the debtor from his obligations, then there is forgiveness of the debt, which is permissible provided that this does not violate the rights of other persons in relation to the creditor’s property (Article 415 of the Civil Code of the Russian Federation).

Debt forgiveness is a two-way transaction through which the creditor expresses his will to terminate the obligation in a certain way. In this case, the debtor’s consent to forgive the debt is mandatory (Articles 407, 415 of the Civil Code of the Russian Federation). Thus, debt forgiveness presupposes the existence of a clearly expressed will of the creditor to release the debtor from the obligation to repay the debt. The creditor's silence, inaction, or failure to present demands for the provision of what is due cannot be considered debt forgiveness.

It is important to note that the requirement to fulfill an obligation is a right, not an obligation, of the creditor. Consequently, the creditor has the right to renounce his claims, except in cases where the rights and legitimate interests of third parties are violated (for example, a mother cannot refuse to receive alimony for a minor child (clause 1 of article 60, clause 3 of article 80 of the Family Code RF)).

A debt to a counterparty (organization, citizen) can be forgiven, in particular, under a contract for the sale of goods (for the amount of payment), under a loan agreement (for the amount of the loan provided and (or) interest for the use of borrowed funds).

How to apply for debt forgiveness

The legislation establishes certain requirements for the execution of an agreement on debt forgiveness, in case of violation of which the court may declare the agreement not concluded.

The debtor is primarily interested in the correct execution of the agreement, since it is important for him to eliminate the risk that after some time the creditor will challenge the debt forgiveness agreement and still demand that the obligation be fulfilled.

The creditor is also interested in the competent execution of the agreement on debt forgiveness, so that the court does not recognize it as not concluded, especially if the forgiveness of the debt is conditioned by some counter-obligations of the debtor. When drawing up an agreement on debt forgiveness, it is necessary to indicate as accurately and in detail as possible what obligation is terminated, from what it arose when the deadline for its execution has expired, etc. In order to avoid the risk of subsequent recognition of debt forgiveness as a gift agreement, special attention must be paid to ensuring that the agreement details all the benefits that the creditor will receive from debt forgiveness.

In addition, the parties can draw up a bilateral document, or the creditor himself has the right to prepare the document alone. Forgiveness of a debt, for example, can be formalized by a letter from the creditor (determination of the Supreme Arbitration Court of the Russian Federation dated February 28, 2011 No. VAS-255/11).

By virtue of Part 1 of Article 139 of the Arbitration Procedure Code of the Russian Federation, a debt can also be forgiven by concluding and approving by the court a settlement agreement, which the parties have the right to conclude at any stage of the arbitration process, including during the execution of a judicial act.

It should be noted that debt forgiveness is not allowed in case of violation of the rights of other persons in relation to the creditor’s property, for example, if debt forgiveness is carried out before the announcement of the commencement of bankruptcy proceedings of the organization.

Debt forgiveness or donation?

According to paragraph 4 of paragraph 1 of Article 575 of the Civil Code of the Russian Federation, commercial organizations do not have the right to give each other anything, with the exception of ordinary gifts, the cost of which should not exceed 3,000 rubles.

Despite the fact that debt forgiveness and donation are different transactions, in some cases the Supreme Arbitration Court of the Russian Federation believes that debt forgiveness between commercial organizations should be considered as a donation. This may happen when the court establishes that the creditor intended to release the debtor from the obligation of the debt as a gift (clause 3 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 21, 2005 No. 104 “Review of the practice of application by arbitration courts of the norms of the Civil Code of the Russian Federation on some grounds termination of obligations"; hereinafter referred to as information letter No. 104).

In order to prove that debt forgiveness is not a gift, it is necessary to confirm the economic justification of the transaction, that is, to show the relationship between debt forgiveness and the creditor receiving a property benefit under any obligation between him and the debtor. An analysis of arbitration practice has revealed a number of circumstances that may indicate that debt forgiveness will provide the creditor with a property benefit. In particular, evidence of property benefits for the creditor may include:

• receiving the unforgiven portion of the debt without going to court (clause 3 of information letter No. 104);
• the obligation of the debtor to perform any actions in favor of the creditor on favorable terms;
• consideration of the transaction for the assignment of the right of claim (determination of the Supreme Arbitration Court of the Russian Federation dated June 30, 2009 No. VAS-8125/09), etc.
• continuation of joint commercial activities (resolution of the Federal Antimonopoly Service of the North Caucasus District dated 07/09/2010 in case No. A53-21595/2009);
• a settlement agreement aimed at resolving mutual claims, where debt forgiveness is one of the conditions (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 15, 2010 No. 2833/10).

If the court finds that the actions of the creditor contain signs of a gift, then a restriction is imposed on the relationship under this transaction, prohibiting gifts between organizations in an amount exceeding 3,000 rubles (an exception is a contribution from the founding organization, if such an obligation is provided for in the charter of the LLC) (Art. 572, 575 of the Civil Code of the Russian Federation, paragraph 2 of Article 14, paragraph 5 of paragraph 1 of Article 29 of the Law of 02/08/1998 No. 14-FZ). This means that if the agreement is concluded for a large amount, the transaction through the court can be declared void, as contrary to the law (clause 1 of Article 166, Article 168 of the Civil Code of the Russian Federation).

Tax consequences of debt forgiveness for the creditor

It's important to remember that debt forgiveness inherently carries some tax risk for the lender. It lies in the fact that the tax inspectorate may consider it unlawful to attribute the amount of the forgiven debt to non-operating expenses that reduce the tax base for the purpose of calculating income tax (clause 2, clause 2, article 265, clause 2, article 266 of the Tax Code of the Russian Federation of the Tax Code of the Russian Federation) .

In this matter, the tax authorities refer to the explanations of the financial department, which believes that non-operating expenses cannot include debt forgiven both in full (letter of the Ministry of Finance of Russia dated August 21, 2009 No. 03-03-06/1/541) and in parts (letter from the Ministry of Finance of Russia dated March 18, 2011.

Accountant's Directory

When using the “income minus expenses” accounting scheme, the organization must take into account the condition of applying the simplified tax system, which concerns the right to reflect expenses in accounting only after the actual fulfillment of obligations to the second party - the sale of goods (works, services).

Accounting for offset transactions Enterprises using the simplified tax system are required to keep accounting of business transactions. Entities are allowed to apply a minimum number of accounts per work plan. In accounting, standard entries required by law are made.

When registering offsets, accounts 76, 60, 62 are used. The transaction is recorded by posting: Dt 60 (76) Kt 62 (76). An example of netting: The enterprise Rassvet LLC maintains accounting using the simplified tax system with the object “income minus expenses”.

Rassvet LLC shipped goods to Master LLC in the amount of 250,500 rubles.

How to arrange a netting when settling income minus expenses

Important

The notification should indicate the amount of claims to be counted, the numbers and dates of documents indicating the occurrence of mutual debt. The risk of adverse consequences associated with carrying out a unilateral offset and expressed in the other party’s rejection of the subject of the offset can be reduced through the preliminary preparation and signing by the parties of a settlement reconciliation act.

Preliminary preparation of reconciliation reports is also recommended when conducting bilateral and multilateral offsets. An offset carried out by agreement of two or more participants is formalized by an act of offset of mutual claims, signed by all participants in the offset. Attention

If mutual claims are different in size, only the claim that is smaller in size is fully repaid. The obligation for which a larger claim is presented is partially preserved.

The procedure for netting under the usn “income”

Definitions: Offsetting under the simplified tax system for income is the repayment of counter homogeneous claims. In other words, organizations that use counteraction effectively cancel equivalent obligations under existing agreements.

Offsetting can be applied to supply agreements, contracts, etc. Homogeneous claims mean obligations that arose on the basis of different agreements, but with the same method of repayment.

In other words, if the parties have different valid agreements that require payment for goods or services in money, then such requirements are recognized as homogeneous.

Income and expenses when netting on the simplified tax system

For organizations participating in non-monetary transactions operating under the simplified tax system, the occurrence of income is confirmed by the fact of receipt of funds to the current account, and not by the signing of an act drawn up between the parties to the agreement, but the company reflects the expense in KUDiR after shipment and offset between the parties to the agreement. For example, having received a signed certificate of completion of work, the executing company includes the amount in expenses (in 1C, how to reflect income on a certificate of completion of work, look for information in open sources of information). KUDiR is maintained in a single copy, even if the entrepreneur has several trading branches.

Records of transactions are reflected in KUDiR on the basis of information from the primary report papers, which are stored by the entrepreneur until the end of the period when it is no longer possible to carry out (for example, from 2008 to 2021) the transfer of losses from previous years.

Offsetting in case of registration of legal entities: sample

When registering mutual settlements, it is worth taking into account the peculiarities of such transactions under the simplified tax system. The book of accounting for income and expenses (an example of offset, assignment and compensation, issued in KUDir, can be found in open sources) reflects the corresponding transactions based on the fact of income received and expenses incurred.

For example, let’s say offset – for rent. Using the simplified tax system, income minus expenses of an enterprise often formalizes such a transaction.

Offsetting (as reflected in KUDir, see below) is a common method of non-monetary payments.

Under the simplified tax system, an organization's income is recognized on the day of crediting funds to a current account or depositing them in the enterprise's cash register, purchasing new property or services as repayment of a counterparty's debt.

Therefore, in tax accounting, the offset is considered payment under the agreement. Income and expenses under the simplified tax system are taken into account on the date of termination of the obligations of the participant in the transaction.

Settlement. revenue recognition

This requirement is due to the fact that offset is a method of making payments between companies (decision of the Federal Antimonopoly Service of the North-West District dated May 21, 2007 in case No. A05-12882/2006-25).

Offsetting under the simplified tax system for legal entities: sample

The offset can be unilateral, bilateral or multilateral.

Depending on its type, the documents used to formalize it differ. Unilateral set-off As has already been said, a statement from one party is sufficient for set-off.

But in order to avoid disputes with the counterparty, it is advisable to carry out a reconciliation before sending an application for offset. The act of reconciliation of mutual settlements will confirm the amounts of debts.

This document will be especially important in the case when part of the contracts has already been paid (the remaining debt amounts will be recorded in the act).

Before submitting an application for offset, you must make sure that the primary documents are available.

Settlement under “simplified”

Other courts also note that to terminate an obligation by offsetting a similar counterclaim, a statement from one of the parties is sufficient. The law does not require the consent of the other party to the offset made.

However, it is important that she receives the application for offset (reg. FAS PO dated January 28, 2007 No. A55-6395/2007).

If the company does not have evidence of delivery of the statement of offset to the counterparty, then it will still be in debt, penalties and interest will continue to accrue for the use of other people’s money (post.

Source: https://1atc.ru/vzaimozachet-pri-usn-dohody/

Agreement on debt forgiveness for a legal entity

No. 03-03-06/1/147). In a letter from the Ministry of Finance of Russia dated March 18, 2011. No. 03-03-06/1/147, financial department specialists indicated that the amount of the forgiven debt under no circumstances meets the criteria of economic feasibility and focus on generating income. Clause 2, clause 2, Article 265 of the Tax Code of the Russian Federation cannot be applied to it, since this norm refers to bad debts, and a forgiven debt, by virtue of clause 2 of Article 266 of the Tax Code of the Russian Federation, is not such. Since voluntary debt forgiveness is a gratuitous transfer of property, therefore, on the basis of paragraph 16 of Article 270 of the Tax Code of the Russian Federation, such a debt cannot be taken into account in tax expenses (letter of the Ministry of Finance of Russia dated July 12, 2006 No. 03-03-04/1/579 ).

Meanwhile, a similar approach to debt forgiveness was adopted by the Presidium of the Supreme Arbitration Court of the Russian Federation in a resolution dated July 15, 2010. No. 2833/10 (hereinafter referred to as resolution No. 2833/10) was declared erroneous. The court indicated that the list of non-operating expenses and taxpayer losses equated to such expenses is not exhaustive. This allows the taxpayer to take into account as expenses that reduce the tax base for income tax, including losses associated with debt forgiveness.

At the same time, a reservation was made about the binding nature of the interpretation of legal norms given in the resolution when lower arbitration courts consider similar cases.

However, tax authorities are inclined to argue that the position of the Supreme Arbitration Court of the Russian Federation, which is beneficial to taxpayers, applies only to those cases where the parties have entered into not just an agreement on debt forgiveness, but a settlement agreement.

Resolution No. 2833/10 was adopted in a case in which the creditor forgave part of the debt to the debtor by concluding a settlement agreement, so there is a risk that the tax authorities will consider this resolution to apply only to similar cases. When forgiving a debt, for example, by concluding a civil agreement, tax authorities will use previously adopted clarifications of the Russian Ministry of Finance.

Federal Tax Service of Russia in letters dated August 12, 2011. No. SA-4-7/13193 and dated December 22, 2010. No. ШС-37-3/18261 indicated that if an organization can prove that debt forgiveness is aimed at generating income (the presence of a commercial interest), it has the right to take into account the amount of the forgiven debt when calculating income tax. In this case, commercial interest, for example, can be expressed in reaching a settlement agreement aimed at resolving the mutual claims of the parties. In this case, the expenses incurred by the organization will comply with the requirements of clause 1 of Article 252 of the Tax Code of the Russian Federation. Since the list of non-operating expenses (including losses equated to non-operating expenses) is not closed, the company has the right to take into account the amount of forgiven debt. If there are no attempts on the part of the organization to collect the debt, it could be written off at the moment the statute of limitations expires in accordance with paragraph 2 of paragraph 2 of Article 265 of the Tax Code of the Russian Federation. The Tax Department refers to the position of the Presidium of the Supreme Arbitration Court of the Russian Federation, given in the resolution dated July 15, 2010. No. 2833/10.

However, the risk of claims for such expenses still remains, since it is unknown what explanations tax inspectors will use when conducting audits.

Tatyana Vladimirovna Sviridova General Director of the Audit Office Auditor Certified Tax and Duty Consultant Forensic Expert

Dear HotDolg visitors! To avoid risks, before making any decisions using the information posted on the site, you must seek advice or other necessary assistance (legal, managerial, psychological) for your specific situation from a specialist. If you want to get a lawyer’s opinion on your problem or if you want to receive other legal assistance (drawing up a document, representing interests in court, etc.), then use the “Sign up for a consultation” service in the upper right part of the site. Please note that it is not possible to provide answers to questions asked by visitors in the comments to the materials of the HotDolg project (especially promptly), due to their large number.

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Determining the rate in the loan agreement

Interest-free loans issued to subsidiaries are risky because the lender will be required to pay interest.

In this regard, it is strongly recommended to indicate the interest rate in the loan agreement - this approach is beneficial to the borrowing organization, since interest on the loan is taken into account in order to reduce the tax base for income tax.

Subsequently, the founder signs an agreement to forgive the debt. When the share in the authorized capital owned by the lender turns out to be more than 50%, the amount will not be included in the tax base.

Scheme of debt write-off agreements

First of all, we note that debt forgiveness must be formalized in the form of a separate transaction. However, the debt transaction itself is not spelled out in law. As usually happens in such cases, the lawyers decided to conduct the transaction according to standard rules.

1. The first option is called one-sided. A legal entity initiates the procedure without involving the debtor. The company that had the debt is simply informed when the case is completed. At the same time, the initiator must double-check his calculations to report the exact amount of the person’s debt written off.
2. Debt forgiveness between legal entities can be bilateral; it is somewhat more difficult to formalize. In addition to the agreement, you should collect some additional documents, for example, the grounds for the formation of the debt, a statement of mutual agreement of the parties to write off the debt, an act of joint settlements.

Debt forgiveness between legal entities: tax consequences

The specifics of debt forgiveness for a legal entity in the field of taxation will depend on the chosen form of transaction, as well as the relationship between the debtor and the creditor.

Forgiveness of accounts payable can occur on the basis of Article 250 of the Tax Code of the Russian Federation. This scheme is implemented for legal entities that do not have claims against each other. For example, the debtor does not file a counterclaim and receives material assets free of charge in order to later spend them on repaying the debt.

This operation is called by economists the turnover of non-operating funds. Forgiveness, in accordance with the provisions of Article 251 of the Tax Code of the Russian Federation, will not be taxed only in two cases - if the money came from the founder of the company or from a legal entity whose authorized capital is more than twice the capital of the recipient.

It is also worth noting that funds received in this way cannot be transferred to third parties for one year. Sometimes problems also arise due to the fact that the law separates the right to the funds themselves and the right to use them. Forgiveness of loan debt between legal entities can lead to serious tax consequences; parties should be careful.

Is it possible to obtain forgiveness between legal entities: tax consequences

The problem is that the amount of forgiven material assets is classified as non-operating expenses, which, in turn, reduces the tax base in connection with the current articles of the Tax Code of the Russian Federation.

In judicial practice, a special place is occupied by the actions of the creditor before the decision to write off the debt is made. The judge must find out whether the forgiveness of the overdue debt was an act of good will? If not, what attempts did the creditor make to recover the funds owed to him? By proving that attempts to repay the debt have taken place, the company will be able to count the debt into accounts receivable and write it off after forgiveness.

After the debt is forgiven, the expenses will indeed be recorded as non-operating expenses. However, this scenario cannot be called common. Since, as we talked about earlier, the specifics of the transaction are not regulated at the legislative level, it is possible that you will have to prove your side in the dispute with the tax authorities in court.

When might debt forgiveness be the only option?

Debt forgiveness between legal entities (despite weak legislative regulation) cannot be called a rare transaction. There are situations in business when such a gesture may be the only possible one. And in addition to the most obvious situations related to the liquidation of a legal entity or the recognition of its insolvency, some others should be mentioned: the end of the service life of the property, the high cost of transportation, the high cost of installation and other operational features that lead to the loss of interest of the creditor in the property.

This is the main feature of forgiveness, which distinguishes this procedure from donation. By initiating the procedure for debt forgiveness (in whole or in part) of the debtor, the creditor must receive a certain, preferably material, benefit, and prove its existence in court. The disputes with the tax authorities, which we mentioned above, usually revolve around this question: was there a fact of benefit?

In order to avoid the unpleasant consequences of lawsuits in the future, you should take care in advance about the availability of such benefits. If the subject of the debt obligations was a certain mechanism, the creditor can prove that it is already out of order, “its repair would be too expensive, and then there’s transportation and installation!

As you can see, the Russian tax code contains an article providing for debt forgiveness. The main thing in this case is to prove that we are not talking about a desire to hide part of the income by including them in expenses, but about a rational decision to terminate relations with the debtor. The transaction can be executed either unilaterally or after agreement between the debtor and the creditor. It is concluded in the standard mode, the form is not prescribed in the Civil Code. If the tax authorities have claims against the transaction, the creditor will have to make efforts to prove that the forgiveness was not a gift. Let us remind you that donations to legal entities are prohibited at the legislative level.

It was decided to forgive the founder, an individual, the debt under the loan agreement

What to do? Conclude an additional agreement with the founder on debt forgiveness and withhold personal income tax from its amount at a rate of 13%. Or accrue dividends to the founder and offset mutual debt. Then personal income tax will need to be paid at a rate of 9%.

If you have a “simplified” approach with the “income” object. You will find useful information in this article. After all, debt forgiveness is processed according to the same rules by all “simplified” people, regardless of the object of taxation.

Question No. 1. How to apply for debt forgiveness?

A procedure such as debt forgiveness is provided for by civil law and is one of the ways to terminate mutual obligations (Article 415 of the Civil Code of the Russian Federation). To formalize it, an agreement is drawn up in writing, and in it the creditor indicates that he is releasing the debtor from his obligations (a sample agreement is shown in the figure). You can forgive both the principal or part of the debt, as well as interest (accrued but not paid), or all together. There will be no expenses for your organization when you forgive your debt. This type of cost in Art. 346.16 of the Tax Code of the Russian Federation is not provided for. But the founder will have income on the date of debt forgiveness, from which personal income tax must be withheld at a rate of 13% (Letter of the Ministry of Finance of Russia dated September 20, 2010 N 03-04-05/5-562).

Example 1 . Registration of debt forgiveness under a loan agreement

On August 5, 2013, Uspeh LLC entered into an agreement with its founder I.P. Kazakov interest-free loan agreement. According to the agreement, he received money in the amount of 350,000 rubles, they must be returned in two parts: September 2, 2013 - 50,000 rubles. and October 1, 2013 - RUB 300,000. The founder made the first part of the payment, partially repaying his debt to the company. For the second part of the payment - 300,000 rubles. — LLC “Success” decided to forgive the debt, about which an agreement was drawn up between the founder and the company dated 10/01/2013. As of the date of signing the debt forgiveness agreement (October 1, 2013), I.P. Kazakov will have income from which personal income tax must be withheld or information must be submitted to the inspectorate if it is impossible to withhold. Then, at the end of 2013, the founder will have to pay personal income tax on his own. In total, the amount of the forgiven debt of the founder must be paid to the personal income tax budget in the amount of 39,000 rubles. (RUB 300,000 x 13%).

Forgiveness of a debt to an employee: how to reflect it in accounting

How to reflect in accounting the forgiveness of debt on an interest-free loan issued to an employee, formalized by a gift agreement?

The loan was provided in the amount of RUB 800,000. Subsequently, a gift agreement was concluded with the employee, providing for the release of the employee from the obligation to the organization to repay the loan.

In the current calendar year, the employee did not receive gifts or financial assistance from the organization.

Civil relations

Under a loan agreement, one party (the lender) transfers into the ownership of the other party (borrower) 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 . The loan agreement is considered concluded from the moment of transfer of money or other things (clause 1 of Article 807 of the Civil Code of the Russian Federation).

The condition for providing a loan without paying interest for the use of borrowed funds must be fixed in the loan agreement (clauses 1, 3 of Article 809 of the Civil Code of the Russian Federation).

The debtor's obligation to repay the loan can be terminated by the creditor by forgiving the debt, if this does not violate the rights of other persons in relation to the creditor's property (clause 1 of Article 415 of the Civil Code of the Russian Federation). Note that gratuitous debt forgiveness is considered by the courts as a gift (Guide to Judicial Practice).

In this case, a gift agreement was concluded between the employee and the organization, providing for the gratuitous release of the employee from the obligation to the organization to repay the loan (Article 572 of the Civil Code of the Russian Federation).

Since the donor is a legal entity and the value of the gift exceeds 3,000 rubles, the gift agreement is concluded in writing (clause 2 of Article 574 of the Civil Code of the Russian Federation).

The gift agreement comes into force from the moment of its conclusion (signed by both parties) (clause 1 of article 425 of the Civil Code of the Russian Federation).

Personal income tax (NDFL)

When an employee is gratuitously released from the obligation to repay the loan, he or she receives economic benefit (income) in the amount of the forgiven loan debt (Clause 1 of Article 41 of the Tax Code of the Russian Federation).

Such income is recognized as an object of taxation and is taken into account when determining the tax base for personal income tax (clause 1 of article 209, clause 1 of article 210 of the Tax Code of the Russian Federation).

Personal income tax is calculated at a tax rate of 13% (clause 1, article 224 of the Tax Code of the Russian Federation).

The cost of gifts received by an employee from an organization does not exceed 4,000 rubles. for the tax period, is exempt from personal income tax (Clause 28, Article 217 of the Tax Code of the Russian Federation).

Since the employee did not receive any other gifts from the organization in the current calendar year, the amount of gratuitously forgiven debt in excess of 4,000 rubles is subject to personal income tax.

An organization that has forgiven an employee a debt free of charge, as a tax agent, is obliged to calculate and withhold the calculated amount of personal income tax from the employee’s income when paying income and pay the amount of personal income tax to the budget (clauses 1, 2, 4 of Article 226 of the Tax Code of the Russian Federation).

Personal income tax is calculated on the date of actual receipt of income by the employee, determined in accordance with Art. 223 of the Tax Code of the Russian Federation (clause 3 of Article 226 of the Tax Code of the Russian Federation).

This article does not establish special rules for determining the date of actual receipt of income in case of gratuitous debt forgiveness.

Since the employee receives this income in non-monetary form, the date of its receipt is determined in accordance with paragraphs. 2 p. 1 art. 223 of the Tax Code of the Russian Federation as the day of entry into force of the gift agreement.

Withholding personal income tax when paying income in kind is made from any funds paid to the employee, for example, from the wages due to the employee. At the same time, the withheld amount of personal income tax cannot exceed 50% of the amount of income paid in cash (clause 4 of Article 226 of the Tax Code of the Russian Federation).

The transfer of the amount of calculated and withheld personal income tax is made no later than the day following the day of payment to the employee of the income from which personal income tax was withheld (clause 6 of Article 226 of the Tax Code of the Russian Federation).

We also note that in the case under consideration, the employee was issued an interest-free loan, under which the employee generates income in the form of material benefits from savings on interest for the use of borrowed funds (clause 1, clause 1, article 212 of the Tax Code of the Russian Federation).

The tax base for income in the form of material benefits on an interest-free loan is determined as the amount of interest calculated on the basis of 2/3 of the current refinancing rate established by the Bank of Russia on the date of actual receipt of the specified income (which follows from paragraph 1, paragraph 2, article 212 of the Tax Code of the Russian Federation ).

The date of actual receipt of income in the form of material benefits from savings on interest is determined as the last day of each month during the period for which the borrowed funds were provided (clause 7, clause 1, article 223 of the Tax Code of the Russian Federation). In this case, it does not matter how the loan obligation is repaid - in cash or otherwise (for example, as in this case, debt forgiveness).

The procedure for taxing personal income tax on income in the form of material benefits on an interest-free loan is discussed in detail in the consultation of M.S. Radkova.

In this consultation, records on the deduction of personal income tax from an employee’s income from material benefits from savings on loan interest are not provided.

Insurance premiums

Forgiveness of a debt arising from a loan agreement is not related to the employee’s performance of work duties, does not depend on the results of his work, is not an incentive or compensatory payment, and is not provided for by an employment (collective) agreement.

In this regard, the amount of the forgiven debt is not a payment made within the framework of the employment relationship, i.e. does not apply to payments provided for in paragraph 1 of Art. 420 Tax Code of the Russian Federation, clause 1, art. 20.1 of the Federal Law of July 24.

1998 N 125-FZ “On compulsory social insurance against accidents at work and occupational diseases” (hereinafter referred to as Law N 125-FZ).

Accordingly, such payment is not subject to insurance contributions for compulsory pension insurance, compulsory social insurance in case of temporary disability and in connection with maternity, compulsory medical insurance, as well as compulsory social insurance against industrial accidents and occupational diseases. The same conclusion (with regard to insurance premiums provided for in Chapter 34 of the Tax Code of the Russian Federation) can be drawn from Letter of the Federal Tax Service of Russia dated April 26, 2017 N BS-4-11/8019. This approach, in our opinion, can also be applied to insurance premiums provided for by Law N 125-FZ.

At the same time, this Letter explains that in cases where the issuance of loans to employees with subsequent debt forgiveness is of a systemic nature, the tax authorities may have a question about the validity of the tax benefit received by the payer of insurance premiums.

It should also be noted that in the case where debt forgiveness is formalized by a gift agreement in writing, the object is subject to insurance premiums provided for in Chapter. 34 of the Tax Code of the Russian Federation, does not arise on the basis of clause 4 of Art. 420 Tax Code of the Russian Federation.

For additional information on the issue of taxing the value of gifts to employees with these insurance contributions, see the Encyclopedia of Disputes on Personal Income Tax and Insurance Contributions.

Accounting

The amount of funds issued under the loan agreement does not correspond to the concept of expense established by clause 2 of the Accounting Regulations, approved by Order of the Ministry of Finance of Russia dated May 6, 1999 N 33n, since it does not lead to a decrease in the economic benefits of the organization.

Sample debt forgiveness agreement

—————————————————————————¬ ¦ Agreement ¦ ¦ on debt forgiveness ¦ ¦ ¦ ¦r. Samara October 1, 2013¦ ¦ ¦ ¦ 1. According to the loan agreement dated 05.08.2013 N 54 I.P. Kazakov had to fulfill obligations to repay the loan in the amount of 350,000 rubles. until October 1, 2013. On time I.P. Kazakov fulfilled his obligations only in terms of repaying the debt in the amount of 50,000 rubles. ¦ ¦ 2. Based on Art. 415 of the Civil Code of the Russian Federation, LLC “Uspeh”¦ ¦ releases I.P. Kazakov from his obligations specified in clause 1 of this Agreement, regarding payment of a loan in the amount of 300,000 (Three hundred thousand) rubles. ¦ ¦ ¦ ¦General Director of LLC “Success” Founder of LLC “Success” ¦ ¦ Ivanov A.P. Ivanov Kazakov I.P. Kazakov¦ ¦ Print ¦ ¦ LLC “Success” ¦ ¦ M.P. ¦ L—————————————————————————

Figure Question No. 2. How to forgive a debt through offset of mutual debt?

The founder can repay his debt to the company in other ways, for example, by offsetting mutual claims, if the company also has a debt to him. So, when a company has a net profit, it pays dividends to participants. Let us remind you that net profit can be distributed not only at the end of the year, but also based on the results of a quarter, half a year or 9 months, if such a procedure is prescribed in the constituent documents (clause 1, article 42 of the Federal Law of December 26, 1995 N 208-FZ and clause 1 Article 28 of the Federal Law of 02/08/1998 N 14-FZ).

Essence of the question. The founder can repay his debt to the company with dividends that are accrued to him but not paid.

An obligation may be terminated in whole or in part by offsetting a counterclaim of a similar nature, the due date of which has come or the due date of which has not been specified or is determined by the moment of demand (Article 410 of the Civil Code of the Russian Federation). The current legislation does not establish any prohibition on offsetting obligations to pay dividends against a counterclaim for loan repayment (Article 411 of the Civil Code of the Russian Federation). This means that the founder can pay off his debt to the company in this way. To formalize the offset of mutual claims between the company and the founder, an act is drawn up in any form. The day on which the act is signed is considered the day of offset.

Common mistakes

Error:

The borrower did not make demands for payment of the debt from the debtor company. The debtor regarded the lack of demands as a desire to forgive his debt.

A comment:

The lender has the right to demand payment of the debt, but he is not obligated to do so. And the fact that the debtor did not receive demands does not mean that the borrower has expressed his will to forgive debt obligations.

Error:

The founder forgives the organization’s debt, and a gift agreement is concluded, in which the lender sets its own conditions for canceling the debtor’s obligations.

A comment:

The gift transaction assumes the absence of any additional conditions from the person to whom the debt is forgiven. It also assumes gratuitousness and voluntary consent of the debtor to enter into a gift agreement.

Is it possible to forgive a debt to a legal entity?

A loan agreement is just that.

Example 2 . Set-off of counter-obligation when paying dividends

On May 10, 2013, Hermes LLC entered into an interest-free loan agreement with founder N.P. Korolev. According to the agreement, he received 300,000 rubles. The deadline for returning this amount is July 31, 2013. The LLC distributes dividends every six months. By decision of the general meeting of LLC participants dated July 19, 2013 on the distribution of profits, the amount of dividends accrued for payment to N.P. Korolev, amounted to 400,000 rubles. Personal income tax must be withheld from the amount of dividends from any funds paid to the founder in the amount of 36,000 rubles. (RUB 400,000 x 9%). To be paid N.P. Korolev is due dividends in the amount of 364,000 rubles. On July 31, 2013, Hermes LLC and the founder signed an agreement to offset the obligation to repay the loan against the debt to pay dividends in the amount of 300,000 rubles. The founder will receive dividends in the amount of 64,000 rubles. (364,000 rubles - 300,000 rubles). This amount was transferred to N.P.’s personal bank account. Queen.

S.V. Khvostova

Deputy Director -

head of audit practice

LLC AKF "Expert"

Until now, it was believed that a “simplifier” who forgives a debt to his buyer, from a tax point of view, punishes himself. The regulatory authorities insisted that the amount of the forgiven debt should be included in taxable income. However, apparently, favorable changes have occurred in this part for the “simplified” people.

We should start with the fact that, in accordance with paragraph 1 of Art. 575 of the Civil Code, donations, with the exception of ordinary gifts whose value does not exceed 3,000 rubles, are not allowed in relations between commercial organizations. In this case, under the gift agreement, one party (the donor) gratuitously transfers or undertakes to transfer to the other party (the donee) an item of ownership or a property right (claim) to himself or to a third party, or releases or undertakes to release it from a property obligation to himself or to a third party . In turn, debt forgiveness is the release by the creditor of the debtor from a property obligation. Therefore, in essence, debt forgiveness is a type of gift and therefore it must be subject to the prohibitions established by Art.

Writing off accounts receivable under the simplified tax system 2 reasons

Debt repayment option

Accounting

Tax accounting