Interest-free loan between legal entities in 2021

Is it possible between organizations

In this situation, especially when special urgency arises, legal entities come to the aid of their business partners, with whom it is possible to quickly and without any problems draw up a loan agreement on terms beneficial to both parties.

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Article 807, paragraph 1 of the Civil Code of the Russian Federation states that a loan is a transfer of money or other things from the lender to the borrower, formalized in writing using an agreement in the established form.

A loan agreement between business entities can also be formalized in the form of the issue and sale of bonds (Article 816 of the Civil Code of the Russian Federation) or the issuance of a bill of exchange (Article 815 of the Russian Civil Code) by agreement of the parties.

When providing a loan from one organization to another, the following tasks must be performed:

• the subject of the loan agreement must be described in detail in the agreement;
• the lender transfers to the borrower exactly the loan items specified in the agreement;
• the borrower must repay his debt without fail within the period specified in the agreement;
• destruction or damage to taken items is subject to compensation by the borrower.

Unlike the activities of banks, when one business entity provides a loan to another under a written agreement, a license from the lender is not required.

Even if such transactions occur repeatedly, but at the expense of exclusively the business entity’s own and not attracted funds, they will not be considered a banking operation.

The subject of a loan agreement between legal entities can be things with certain generic characteristics and money. The date of conclusion of such an agreement is the moment of transfer of the subject of the agreement from the lender to the borrower.

The accounting procedure for loans received is described in detail in the Accounting Regulations “Accounting for expenses on loans and credits” (PBU15/2008), approved by order of the Russian Ministry of Finance. No. 107n dated June 02, 2008

Collateral as a guarantee of an interest-free loan

As mentioned above, if the agreement is long enough, the lender needs some guarantees of the return and safety of its own funds. The borrower may provide some collateral that acts as a fiduciary guarantor.

In this case, it is necessary to indicate the presence of collateral in the body of the agreement, as well as exceptional points:

• transfer of collateral to the creditor;
• repayment upon completion of loan repayment;
• occurrence of controversial situations and actions with a return guarantee.

In this case, information about the transferred collateral, as well as confirmed ownership rights of the borrower, are added to the accompanying package. In case of failure to fulfill its obligations, the borrower can leave the collateral to the lender or return the funds. This situation is resolved through a written agreement on an interest-free loan, or with the participation of the judiciary.

What types of loans exist between legal entities?

Most often, a loan between organizations is used in practice to perform the following tasks:

• a legal entity uses money or things received to pay debts to suppliers;
• the subject of the loan can be used as a necessary tool for continuing the borrower’s business activities;
• This is how the “help” of the parent company to its subsidiaries can be expressed when the latter encounter a difficult financial situation;
• this can be a mutually beneficial cooperation between organizations that are part of the same holding.

Free and with interest

Is an interest-free loan possible between legal entities?

To answer this question, you should carefully analyze all Russian legislation, starting with the Civil and Tax Codes of the Russian Federation and ending with existing judicial practice and decisions of the Supreme Arbitration Court.

Chapter 42 of the Civil Code regulates the procedure for providing interest-free loans. Article 809 of the Civil Code contains mandatory conditions under which it is possible to provide a loan without interest.

Among them are the following:

• the loan agreement must indicate that the lender receives things free of charge;
• the subject of the agreement cannot be funds;
• the loan agreement does not provide for interest rates or they are equal to zero;
• the cost of the transaction does not exceed fifty minimum wages on average in the country;
• The lender will not use the loan received to carry out business activities, i.e. he does not set himself the goal of making a profit.

According to Article 6 of Federal Law No. 115 of 08/07/2001. interest-free loans between organizations are subject to mandatory control.

In paragraphs 10 p. 1 art. 251 of the Tax Code states that the tax base does not include income received under loan agreements.

According to paragraph 2 of Art. 248 of the Tax Code, property (work, services) and property rights are considered to have been received free of charge if their appearance does not in any way imply reciprocal obligations on the part of the borrower.

However, Article 807 of the Civil Code presupposes the obligation to repay the debt to the lender; the Supreme Arbitration Court refers to the same obligation in its decision No. 3009/04 of August 3. 2004

. The interest rate under the loan agreement will be equal to the refinancing rate at the time of conclusion of the transaction, if it is not mentioned at all in this document.

In accordance with the Letter of the Ministry of Finance dated February 20, 2006. No. 03-03-04/1/128, as well as the official “message” of the Tax Service dated 13.01. 2005 No. 02-1-08/5 this unpaid amount of interest on a loan between legal entities does not need to be included in the borrower’s income.

Thus, it is not included in the base either as expenses or as income when taxing the profits of both parties.

In addition, according to paragraph 1 of Article 810 of the Civil Code, if the contract does not contain a specific loan repayment period in calendar days, it is considered equal to 30 days from the date the borrower receives the request for payment of the debt.

This means that an interest-free loan between legal entities is possible, and it does not carry any tax consequences for any of the parties to the loan agreement.

In the case of a loan with interest, the lending organization receives profit in the form of interest from the use of the subject of the agreement by the borrower, therefore it is obliged to show the amount of interest received in the column of non-operating income, then enter it into the income tax base and pay the interest determined by law.

If the loan was provided by goods, then both parties need to transfer value added tax to the budget. The organization that received the loan reflects the interest on it as part of non-operating expenses and reduces the tax base by this amount. Everything described above applies to loans between domestic organizations.

The whole process of obtaining a loan looks completely different if the borrower is a foreign company. This situation is presented in detail in the diagram below.

Article 309 of the Tax Code indicates that all income received from foreign companies is subject to taxation and is included in the income tax base.

But if at the international level there is an agreement between countries on the exclusion of dual taxation, then the Russian organization is exempt from paying income tax.

When paying interest amounts to foreign companies, the following rules apply:

• interest rates for using a loan should not differ greatly from the average statistical values ​​for Russia;
• the maximum interest rate cannot be greater than the refinancing rate of the Central Bank of Russia multiplied by a factor of 1.1 (if payments are made in rubles) or 15% of the loan amount (if payments are made in foreign currency).

Target

Based on the nature of their use, loans between legal entities are divided into three main groups:

• target (a loan that can only be used for the implementation by a business entity of certain goals strictly specified in the agreement);
• state (assumes any financial state or municipal institution as a borrower, and any legal entity can act as a lender);
• non-targeted (used to solve any problems of a business entity, but in most cases it costs much more).

You can find examples of an interest-bearing loan agreement in the article: borrowing money at interest. Receiving an interest-free loan from the founder is discussed on the page.

Secured by real estate

Sometimes loans between legal entities can be secured by real estate (for example, real estate, equipment, securities).

This serves as an additional guarantee of the borrower’s solvency, since in the event of his bankruptcy, it will be possible to sell the collateral to repay the debt.

By date

According to the period of use, there are short-term loans, medium-term and long-term loans. In accounting, the classification will be slightly different.

Paragraph 4 of PBU 15/01 contains an indication that loans with interest must be reflected in accounts payable from the moment the subject of the loan agreement is transferred from one party to the other; this definition does not apply to gratuitous loans.

Only the allocation of loans to accounting accounts will be different, depending on the period, namely:

• if the debt repayment period is less than one year (12 months), then such debt will be reflected in account 66 entitled “Settlements for short-term loans and borrowings” - these are short-term loans;
• if the debt repayment period is more than one year, then the loan is reflected in account 67 entitled “Settlements for long-term loans and borrowings” - these are long-term loans.

Interest-free loans, regardless of the term, are recorded in account 76 under the title “Settlements with various debtors and creditors.”

Analytical accounting of debt on loans received and issued by the organization is carried out by type of loan and lender.

Accounting Regulation 15/2008 provides a closed list of expenses associated with fulfilling obligations under loans received.

It includes:

• interest to the lender (creditor);
• amounts of information and consulting services;
• cost of loan agreement examination;
• other expenses.

Incoming tax consequences for both parties

Both lawyers and tax authorities have repeatedly explained that:

In addition, turning to Chapter 25 of the Tax Code of the Russian Federation, many taxpayers are trying to defend their position regarding non-payment of income tax on this amount in arbitration court.

Today, it is worth being guided by the opinion of the Federal Tax Service and including the amount of non-arising material benefit in the tax base for calculating income tax.

Arbitration courts of some regions of the Russian Federation have already defended the position of businessmen and issued relevant Determinations that exempt borrowers from paying tax on material benefits.

Therefore, in order not to “get into trouble”, it is necessary to check with the tax office at the place of registration of the enterprise about the payment of tax on financial benefits in this region.

How to apply

A loan between legal entities is drawn up in writing in the form of an agreement, which must contain such mandatory clauses as:

• Date of preparation;
• place of compilation;
• names of the parties;
• description of the subject of the contract;
• rights and obligations of the parties;
• loan repayment terms;
• loan payment options;
• the interest rate for using the loan;
• possibility and conditions of early repayment;
• liability of the parties;
• the amount of penalties or penalties for late payments;
• description of the sequence of actions in the event of force majeure;
• requirements reflecting the boundaries of confidential information;
• dispute resolution options;
• cases of unilateral or mutual termination of the contract and changes in its terms;
• final provisions;
• terms of the contract;
• details of both parties;
• signatures of the lender and borrower.

Termination of an interest-free loan agreement

Either party may attempt to terminate the contract if necessary. What might influence such a decision? There are several options:

• failure to perform duties;
• violation of the terms of the interest-free loan agreement;
• liquidation, bankruptcy and other circumstances of a similar nature in which the legal side of the issue comes into force.

The agreement can be terminated by mutual consent or unilaterally, which must be stated in the body of the agreement. In this case, a legal entity wishing to terminate cooperation is obliged to notify the partner in the transaction in writing.

If the interest-free loan transaction is terminated at the initiative of the creditor, he may demand repayment of the entire debt. In order not to lead to a deterioration in relations between the participants, it is worth strictly observing the agreement, and first, fully specifying all possible circumstances of the event. In this case, it is necessary to take into account the timing and possible changes in the relationship.

How are funds transferred?

Funds under a loan agreement between legal entities in most cases are transferred from the lender's current account to the borrower's current account using the specified details, and then when the borrower repays the debt, the money is transferred in full or in equal shares, as well as interest from the borrower's current account to the lender's account.

If a loan is issued between legal entities in cash, then legal entities must comply with a number of mandatory rules and conditions in force in the territory of the Russian Federation.

According to the Directive of the Central Bank of Russia dated 07.10. 2013 No. 3073 - in 2015 there is also a limit for cash payments between legal entities.

It amounts to one hundred thousand rubles under one agreement or an amount in foreign currency equivalent to 100 thousand rubles at the official exchange rate of the Bank of Russia on the date of cash payments. A legal entity cannot issue more than this amount in cash.

If a legal entity exceeds the amount of one hundred thousand rubles under one agreement, then this will be a violation of the procedure for working with cash.

According to Article 15.1 of the Code of the Russian Federation on Administrative Offenses, if the limit on cash payments is not observed, a fine of 40 to 50 thousand rubles is imposed on a legal entity.

The official will pay 4,000 - 5,000 rubles. But it is possible to bring an organization to justice only within two months from the date of violation (Part 1 of Article 4.5 of the Code of Administrative Offenses of the Russian Federation).

How are risks specified in the contract?

The definition of risks is contained in the loan agreement. They are divided into internal and external.

Among the internal ones, the following can be listed:

• insolvency of the borrower;
• efficiency of the debtor's current activities;
• breach of obligations;
• loss of liquidity of the enterprise;
• fraud;
• lack of debt security.

Internal risks can be reduced by reflecting additional conditions in the agreement or annex to it, such as: provision by the borrower of documents confirming its solvency, profitability and liquidity of assets; securing payment of debt by pledging the debtor’s property, etc.

External risks of the loan agreement also directly affect the fulfillment of obligations by both parties, but it is impossible to somehow resist them or change their influence.

They are divided into:

• country;
• political;
• macroeconomic;
• social;
• inflationary;
• industry;
• regional;
• changes in legislation;
• associated with changes in the refinancing rate.

External risks can arise suddenly and neither the borrower nor the lender can protect themselves from them.

For example, with a high level of inflation in the country, money inevitably depreciates, and the lender of the loan agreement, when fulfilling all obligations under the agreement, will be at a loss, since the purchasing power of funds has decreased.

Debt forgiveness between legal entities

After the end of the loan agreement, the lender may require the borrower to fully repay the existing debt.

To do this, the legal entity that issued the loan sends a written notice to the other party demanding payment of the debt. The borrower must fulfill all the conditions specified in the notice within one month.

If the loan amount is not repaid or not fully repaid, the lender files a lawsuit against the borrower with a similar demand to return the entire amount of the debt.

The borrower can sue within three years after the end date of the contract, because this is the statute of limitations that applies under loan agreements.

If the borrower does not repay his debt in full within three years, he includes the remaining amount as income and pays income tax on it.

Sometimes, after the end of the loan agreement, the borrower finds himself on the verge of bankruptcy, and he simply does not have the necessary financial resources to repay the loan amount.

In this case, the lender can only forgive the debt or part of it (Article 415, Part 1 of the Civil Code of the Russian Federation), but this is only possible if the interests of other persons who are associated with the lender’s property are not seriously infringed.

There is no legally established procedure for forgiving a borrower's debt. However, this decision must be formalized by a written agreement of the parties, which will clearly define all the details and the amount of the debt that the borrower no longer needs to repay.

If the loan agreement between legal entities was certified by a notary, then the additional agreement must be certified by him.

The Supreme Arbitration Court of the Russian Federation in letter No. 104 dated December 21, 2005 stated that the decision to forgive a debt cannot be considered a gift, since it most often carries only the desire of the lender to repay the remaining part of the debt or other debts that the given person has. recipient of loans.

In market conditions, enterprises can attract borrowed funds in the form of loans from legal entities. Such relationships are more beneficial for business entities compared to bank loans and are formalized in writing by a loan agreement.

A loan agreement is sometimes drawn up in the form of a promissory note or bonds. The loan may be gratuitous and the parties do not have any tax obligations, or it may also include the payment of interest, in which case it is reflected as accounts payable in the accounting accounts.

A loan between legal entities allows enterprises to conduct business activities more efficiently and minimizes their additional costs associated with servicing it.

Customer reviews of loans from the Alfa company are given in the article: Alfa loan. How to find private loans without being scammed against a receipt, see here.

There is information about the procedure for obtaining a targeted loan for maternity capital.

Features and basic concepts of an interest-free loan agreement

2021 makes it clear that it is often difficult for legal entities to operate without attracting third-party funding. As for the possibility of purchasing an interest-free loan, there must be trust between the parties, because such agreements are concluded between long-term partners who support each other.

To take out a loan, especially for a fairly large amount, a legal entity prepares a complex package of accompanying documentation, including reporting and constituent documents. A loan is considered from the point of view of generating income, and accordingly comes under the attention of fiscal authorities.

An interest-free loan agreement concluded between legal entities implies the following:

• one organization lends money or valuable property;
• another organization accepts;
• A written agreement must be drawn up.

The body of the agreement states that the lender does not receive a profit for the fact that the borrower uses borrowed funds, since this is an interest-free agreement. The agreement may imply a strict purpose for spending the loan, as well as some security - collateral.

Next, we will consider all aspects of drawing up a transaction and its written execution. You need to start by identifying the participants.