Interest-free loan: what taxes you have to pay. Interest-free loan between individual entrepreneurs and individual entrepreneurs, funds are transferred to the current account, what tax liabilities arise

Very often for an individual entrepreneur is not enough own funds for the development of your business. To get the right amount, an individual entrepreneur can take a loan at high interest rates from any bank or borrow from good business partners. Lending has become profitable among entrepreneurs. And this is understandable, because it is much more profitable for an entrepreneur-borrower not to pay interest. Such loans can be safely called an attempt to redistribute cash between partners. An interest-free loan is far from uncommon in small and large businesses. But how to legally issue an interest-free loan to an individual entrepreneur?

What is a loan agreement?

Among lawyers, a loan agreement is considered to be a special agreement, which is called to confirm the transfer of a certain sum of money from one entrepreneur to another. In this document, the entrepreneur-borrower confirms his intention to return the borrowed amount in full within the specified period.

The business lender lends money without paying any interest. That's why this species contracts are called interest-free. In simple words this agreement confirms the voluntary and gratuitous transfer of a certain amount.

But in order for an interest-free loan to an individual entrepreneur to be considered truly free of charge from the point of view of the law, certain conditions must be met, namely:

1. if such an agreement is signed between 2 citizens, then the amount of such a loan should not exceed 50 minimum wages.
2. under such an agreement, you can transfer any things of special value, but not cash.

Currently, the form of an interest-free loan agreement must be in writing. The contract may not be concluded in writing only if the amount borrowed does not exceed 10 minimum wages.

Loan agreement on a permanent basis

Some entrepreneurs take interest-free loans all the time. Is it possible that in this case the creditor entrepreneur and the borrower entrepreneur draw up a new contract each time? No, in such cases it is possible to conclude a special policy for raising funds for a loan. This engagement policy is considered important part financial strategy. Its main goal is to develop effective conditions, as well as forms for finding and attracting borrowed funds. The main stages of the attraction policy are:

1. Analysis of raising funds on a loan;
2. Analysis of the effectiveness of the use of credit funds;
3. Calculation of the maximum volume for attracting loans;
4. Determining the composition of principal loans;
5. Ensuring the effective use of received loans;
6. Determination of settlements on loans received and so on.

Accounting for borrowed funds

An interest-free loan to an individual entrepreneur does not need to be indicated in the income statement of your business. However, tax officials are trying in every possible way to prove that an interest-free loan should be viewed through the prism of clause 8 of article 250 in the Tax Code. In their opinion, such a loan should be included in non-operating income. But after long battles between lawyers, judges and tax controllers, it was decided that the amount of the loan is not included in the expenses that must be taken into account when taxing the profits of your business.

Interest-free loan and accounting

The money that the entrepreneur receives from the creditor entrepreneur is considered to be the actual funds received. If a loan is taken for less than a year, then information about such a loan must be entered in the "Calculations on short-term loans and borrowings", that is, in account No. 66. But if an individual entrepreneur takes a loan for more than a year, then the business accountant must enter the data on the loan in “Calculations on long-term loans and loans”, that is, in account No. 67.

As for the lender, logically, information about the transfer of the loan to the entrepreneur must be indicated in account 58 “Financial investments”. This is an erroneous opinion. Based on the fact that the lender will not receive any economic benefit from such a loan, then it would be more correct to enter information about it in account 76 “Settlements with various debtors and creditors”.

A business development loan becomes a necessity for an individual entrepreneur with an acute shortage of assets. A financial institution is becoming more and more popular with individual entrepreneurs, in this regard, it is important to understand what such a scheme is and on what legal grounds she acts.

What it is

Before concluding a contract, it is necessary to understand the legal concepts. According to Article 807 of the Civil Code of the Russian Federation, a loan is understood to be a transaction in which one party transfers to another money or other objects united by generic characteristics, and the other accepts them with the obligation to return the received amount in the same amount.

The following rule applies to interest-free loans. The interaction scheme is reversed. If the contract does not state that the funds are provided without the purpose of making a profit - that is, without interest, then it is considered free of charge.

If such a requirement is not specified in the agreement, then the lender has the legal right to charge interest for the entire time the borrowed funds are used.

When the interest is not specified in the contract, the recovery is made at the refinancing rate adopted in the region of registration of an individual entrepreneur on the day the debt is repaid.

Terms

The interest-free loan agreement includes the terms:

1. The procedure for the execution of the contract, the period of use of funds and the repayment period, methods of repayment of debt.
2. Grounds for termination of the contract under certain conditions, obligations of the parties when they arise. These may be force majeure circumstances: fire, hostilities, disaster and etc.
3. The date of signing of the agreement and the beginning of the terms of the loan, correlated with the time of transfer of funds for use by the borrower.
4. It is also important to fix the condition in the contract on the possibility of making amendments to the contract, changes, drawing up additional agreements.

The loan agreement must contain the characteristics of the loan:

• full amount, method of transfer/cash withdrawal;
• currency name;
• the procedure for the return of funds: methods, schedule - in one payment or several, at the end of the contract;
• earmarked funds with a full list of obligations and rights of the lender and the borrower during the entire period of the contract;
• the data of the parties must be indicated: registration numbers of individual entrepreneurs, tax registration;
• penalties for late repayment of debt.

The last part of the contract lists the details of the parties: names, bank accounts, numbers of registration certificates. The date of the conclusion of the contract and the moment of the obligation to transfer money are affixed, the parties to the contract seal the agreement with signatures and seals.

The contract must specify the responsibilities of the parties. What to do if the agreement is in hand, all the receipts are there, but the counterparty is not going to return the funds? In this case, you should first send a claim to the violator in writing with a notification of delivery against signature of a representative of the second party or the individual entrepreneur himself.

The claim sets a deadline for repayment of the debt. If during this time the funds are not returned, there is only one way out - to go to court. The creditor acquires the right to file a claim only from the moment of the due date for payment.

If the claim is filed before the debt repayment date, it will be returned by the court with clarifications. Such an application can be submitted during the limitation period - 3 years from the moment when the person learned about the violation of his right, which also occurs from the date of repayment of the debt.

According to the concluded individual entrepreneur, the contract is considered interest-free under the conditions:

• when, under an IP agreement, not money is transferred, but certain things;
• if the agreement between the individual entrepreneur and another entrepreneur or organization contains a requirement to repay a loan in the amount of less than 50 minimum wages.

According to the instruction of the Central Bank of the Russian Federation of March 11, 2011 No. 3210-U, the cash balance at the end of the day must be transferred by all companies to settlement accounts. Thus, the individual entrepreneur is obliged to transfer the funds received on loan to the bank.

Refunds are made in one of the following ways:

• to the account of an individual enterprise in a bank;
• in cash from the IP cash desk - in this case, the debt is repaid by a return cash order (f. KO-2).

The documents

The law does not establish requirements for the list of documents that are required to conclude an interest-free loan agreement between entrepreneurs. However, it is recommended to protect yourself from financial risks, regardless of which side the counterparty is on - the creditor or the debtor.

In order to make sure that the other party is acting as an individual entrepreneur, it is necessary to request a copy of a notarized duplicate of the certificate of registration with the tax authority. This must be done by each contractor.

When transferring money, you need to issue a receipt or an act of acceptance of funds indicating the date and signature of the parties, and it is also desirable to certify the fact by witnesses - at least two.

Of course, it is not necessary to conclude an agreement for up to 10 minimum wages, however, in any case, a receipt will become important evidence in court and will allow you to avoid unnecessary proceedings.

How to draw up an interest-free loan agreement between individual entrepreneur and individual entrepreneur, sample

An agreement between entrepreneurs is concluded in writing if the loan amount exceeds 10 minimum wages. If less, the agreement reached in writing is considered valid, also when the parties have performed actions in fulfillment of obligations: one party has issued a loan, and the other has accepted the funds in any way - in cash or by transfer to an account. However, with such a scheme, it is not known how much interest is charged and how long the contract is valid, when it is necessary to repay the debt.

You can set the time for the return of funds yourself, for this the creditor needs to send a notification within the framework of the Civil Code of the Russian Federation about the need to repay the debt with the date of return. From this moment, the time when the obligation to repay the debt will arise will be considered.

According to the indicated one, you can download a sample agreement for an interest-free loan between individual entrepreneurs.

If necessary, the parties may conclude an additional agreement to the contract. For example, when extending the terms of repayment of a debt or increasing its amount. In such a document, all the details of the parties are indicated, as in the contract, the clause of the agreement to be changed, the new version of the condition. The act is certified by the signatures of the parties and sealed.

Do I need notarization

It is not required by law to certify an interest-free loan agreement in a notary's office. The absence of such assurance does not affect the legal force of the agreement, if it provides for a loan in excess of 10 minimum wages and is in writing, it is considered valid.

In practice, there are cases when one of the parties tries to invalidate the transaction, return the money or refute the transfer of funds. As evidence, one of the grounds for recognizing legally significant actions as null and void or contestable is given.

This is an action under the influence of a threat, deceit, the minority of a person (a controversial moment when a citizen is legally capable from the age of 16 due to emancipation, since he is engaged in entrepreneurial activity). The sanity of a person when concluding a contract, his ability to answer before the law and society for his actions can be called into question - full or limited legal capacity and other cases.

In such situations, if the identity of the counterparty is not credible, it is allowed to draw up an agreement with a notary. He will check the legal force of all the terms of the contract, establish the legal capacity of the parties, verify the fact that the persons understand the significance of their actions due to their physical and mental abilities, etc.

Signing and affixing a document by a notary is one of the guarantees for the return of a debt and is often indisputable evidence in court when considering claims in this category of cases.

The notary will also check the submitted documents for authenticity. In the event of a dispute, he will be brought to court as a participant in the process to testify.

Taxation

When drawing up an interest-free loan agreement between individual entrepreneurs, there are no grounds for calculating value added tax. However, the individual entrepreneur who received the funds has a material output - income in the amount of the loan. In this regard, he has an obligation to pay income tax - personal income tax.

Important! If during the transfer of funds it became necessary to transfer funds to a bank account or a cash transfer payment system in the amount of more than 600 thousand rubles, information about the transaction is transferred to Rosfinmonitoring, even if an agreement on an interest-free loan is concluded between citizens engaged in entrepreneurial activities.

Under the general taxation system, the issuance of a loan and the receipt of funds back do not affect tax payments, since the costs of accounting does not occur. The amount is exempt from VAT on the basis of Article 149 of the Tax Code of the Russian Federation.

When conducting accounting, the persons participating in the transaction are exempted from the need to deduct contributions for pension, social and medical insurance.

Entrepreneurs working on a simplified taxation system pay 35% of the loan amount received on the basis of Article 224 of the Tax Code of the Russian Federation as income. When you are on a simplified taxation system, such loans are not profits, so the deduction of contributions to state funds from them is not provided.

Video: Interest-free loan agreement

How to prepare a loan agreement

An individual entrepreneur is still an individual, but with the rights and obligations of a legal entity. Therefore, the provisions of paragraph 1 of Chapter 42 regarding individuals must be applied to a loan agreement between an individual entrepreneur and an individual.

IP conducts entrepreneurial activities, and in paragraph 3 of Art. 809 of the Civil Code of the Russian Federation states that the loan agreement will by default be considered interest-free if the loan issued is in no way connected with the business activities of one of the parties. In the contract, it is better to indicate “personal funds of the IP” - if the IP is a lender, if the IP is a borrower, then “for the personal needs of the IP”. In this case, the tax authorities will not find fault with the contract and look for lost profits.

To avoid misunderstandings with the tax authorities, it is better to directly state in the contract that it is interest-free, that is, the lender does not charge interest from the borrower for using his money.

That is, you need to make a note that "interest on the loan is not charged." Otherwise, if the provision of paragraph 3 of Art. 809 of the Civil Code of the Russian Federation, then the borrower must repay the debt with interest. Interest is calculated based on the refinancing rate of the Bank of Russia on the day the debt is repaid. As of February 10, 2014, this rate in Russia was 8.025% per annum. This is stated in paragraph 1 809 of the Civil Code of the Russian Federation.

For an interest-free loan, only the amount of the principal debt is subject to return, without interest for use. If, under the contract, penalties and penalties arose, then the borrower is obliged to return them.

Terms of an agreement

The conditions for this type of contract are:

• 
  Place and date of conclusion of the contract. For example, November 25, 2014 Moscow.
• 
  The amount issued by the borrower - that is, the subject of the contract;
• 
  The obligation of the lender to issue a certain amount of money to the borrower and the obligation of the borrower to return this money on time - that is, the rights and obligations of the parties. These provisions are described in Art. 810 of the Civil Code of the Russian Federation;
• 
  Conditions for granting a loan - the term of its repayment, as well as the absence of interest for the use of money - Art. 809 of the Civil Code of the Russian Federation;
• 
  Force - major circumstances;
• 
  Responsibility of the parties for violation of the terms of the contract;
• 
  Privacy terms;
• 
  Dispute resolution methods;
• 
  Signatures and details of the parties.

Required documents

• 
  Copies of both parties' passports, or other documents that can verify identity. But a passport is better, in order to avoid problems;
• 
  Marriage certificate and consent of the second spouse to the transaction - if the individual is married;
• 
  Certificate of registration as an individual entrepreneur;
• 
  Certificate of registration with the tax authority - TIN.

The loan can be issued both in cash and non-cash. If a loans to individuals issued in cash, it is worth remembering that, according to the Instructions of the Bank of Russia No. 1843-U, an individual entrepreneur has the right to accept or give cash in the amount of 100 thousand rubles under one agreement. If it suits both parties, then the document. The confirmation of the loan will be a receipt from individual and cash documents of IP.

Important! Individual entrepreneurs do not have the right to use cash from the cash desk received after the sale of products for other needs. Therefore, in order to avoid problems with the tax authorities, you must first deposit the required amount to the current account (if any) of the individual entrepreneur, and then withdraw it.

If it is more convenient for the parties to the agreement to transfer money by bank transfer, then there are no restrictions. The document that confirms the issuance and receipt of a loan by the second parties will be the payment document of the bank that made the transfer.

The loan agreement is signed by both parties. With full details. An individual indicates the full name and passport details, as well as contact details. The individual entrepreneur indicates the details of the certificate and passport data, and also stamps the document, if he has one.

Loan taxation

Since there is no extraction of additional profit, then the loan amount is not subject to any taxes for either an individual entrepreneur or an individual. An individual does not have to fill out any personal income tax returns and pay income tax.

However, an individual entrepreneur will have to calculate and pay personal income tax for himself and for an individual. This is because if an individual entrepreneur acts as a lender, he acts as a source of income for himself and for an individual. For an individual, he pays tax as a tax agent. This is stated in paras. 1 p. 1 art. 208 of the Tax Code of the Russian Federation.

Sample agreement for an interest-free loan between an individual and an individual entrepreneur

There is no unified form of such an agreement; it is worth starting from the individual conditions of conclusion between the parties. Sample standard contract can be seen in the Appendix.

In addition to the contract itself, it is also necessary to prepare receipt on obtaining a loan, as well as a payment schedule if the debt will be repaid in installments, and not in full at the end of the term.

If for any reason the parties want to change the terms of the contract, for example, to extend its validity period, then it is necessary to conclude an additional agreement, which will also be attached to the contract.

The loan agreement is real, that is, it enters into force not after signing, but after the issuance of funds to the borrower.

Download a sample interest-free loan agreement between an individual and an individual entrepreneur.

Does the contract need to be notarized?

In Art. 808 of the Civil Code of the Russian Federation states that such an agreement can only be certified by the signatures of the parties, and it will have legal force in court if the loan amount is not more than 10 minimum wages. For the calculation, the all-Russian minimum wage is taken, which in 2015 will be equal to 5,965 rubles, and not the minimum wage, which is set for each subject separately.

For judicial trial there will be enough documents that confirm the issuance of a loan - receipts or payment documents.

But the parties, if they wish, can certify such an agreement - this is not prohibited by law. Notarial certification will only give advantages if the dispute under the contract is resolved in court.

Notarization of the contract indicates that the contract is concluded in full compliance with civil law. A notary public can also be called as a witness in a court session.

Responsibility of the parties

The most common violation is the failure to return the debt at the agreed time. The borrower and the lender have the right to impose any acceptable terms of liability. But, most often, these are penalties and interest that are charged on the amount of the principal debt.

For example, the penalty under the agreement is a rate equal to 1/300 of the refinancing rate of the Bank of Russia for each day of delay. But the parties can set a different amount of interest, for example, 0.05% of the debt for each full or partial month of delay.

The penalty can also be set as a percentage of the amount owed or as a fixed amount. For example, 3,000 rubles for non-repayment or 25% of the debt amount. The penalty is charged at a time and is not a prerequisite for concluding an interest-free loan agreement.

The borrower, in case of delay, must repay the entire amount of the debt together with interest and penalties.

The conclusion of an interest-free loan agreement between an individual entrepreneur and an individual is not uncommon. In order to avoid problems with the tax authorities, it is not necessary to indicate in the contract what is issued " business development loan”, better “for personal needs”. This applies to both individual entrepreneurs and individuals.

Since the loan is interest-free, there is no fact of making a profit, so you do not need to pay taxes on such a loan. However, the tax authorities really "do not like" such agreements - they see them as a concealment of additional benefits.

The fact that the loan is interest-free should be expressly stated in the contract. Otherwise, the loan is considered granted at interest. s paragraph 1 of Art. 809 of the Civil Code of the Russian Federation.

When an entrepreneur takes out an interest-free loan for his business, he may subsequently have to pay personal income tax at a rate of 35 %paragraph 2 of Art. 224 Tax Code of the Russian Federation With material gain from interest savings. Recall that such a benefit occurs when the interest on the loan is less than 2/3 of the refinancing rate. I sub. 1 p. 1, sub. 1 p. 2 art. 212 Tax Code of the Russian Federation. That is, today it is below 5.5% per annum (8.25 %Bank of Russia Directive No. 2618-U dated April 29, 2011 x 2/3).

The date of receipt of income in the form of a benefit is the day the loan is repaid. a sub. 1 p. 1, p. 2 Art. 212 of the Tax Code of the Russian Federation; Letter of the Ministry of Finance of Russia dated May 16, 2011 No. 03-04-05 / 6-350. You can calculate personal income tax from material benefits that to sub. 1 p. 2 art. 212, sub. 3 p. 1 art. 223, paragraph 2 of Art. 224 of the Tax Code of the Russian Federation; Letter of the Ministry of Finance of Russia dated 09.08.2010 No. 03-04-06/6-173:

We have prepared a cheat sheet that will help entrepreneurs quickly find out in which case it is necessary to pay personal income tax.

Personal income tax must be calculated by the person who issued the loan. It is he who is recognized as a tax agent for this income at paragraph 2 of Art. 212, paragraph 1 of Art. 226 Tax Code of the Russian Federation. If he cannot withhold the calculated amount of tax, then you need to notify the entrepreneur-borrower, as well as your IFTS no later than January 31 of the next year a paragraph 5 of Art. 226 Tax Code of the Russian Federation. And then the entrepreneur will have to submit a personal income tax declaration to the inspectorate at the place of residence and pay the tax.

So the following picture emerges. For entrepreneurs on a general or simplified regime, as well as those who pay agricultural tax, it is best to take a loan from individuals or from another individual entrepreneur who would appear in the contract as an ordinary “physicist”. Then you won't have to pay taxes.

If the entrepreneur took an interest-free loan from the organization, then for your own peace of mind, it is better to declare the income received and pay the tax, respectively, no later than April 30 and July 15 of the year following the year of repayment of the loan a paragraph 6 of Art. 227, paragraph 1 of Art. 229 of the Tax Code of the Russian Federation. This should definitely be done if you have received a 2-personal income tax certificate from the lender organization, which shows income in the form of a profit. After all, this means that the tax authorities also have this information. and pp. 2, 3 art. 230 Tax Code of the Russian Federation.

Entrepreneurs on imputation do not care who to take an interest-free loan from. The main thing is to use this money directly in special regime activities. In addition, they should notify their lender of the applicable special regime so that he knows that he does not have to perform the duties of a tax agent.

Cash lending transactions are exempt from VAT.

An entrepreneur who receives an interest-free loan does not receive any income from savings on interest.

However, an entrepreneur who has received an interest-free loan will have to pay personal income tax on material benefits. This applies only to entrepreneurs using common system taxation or simplification .

When transferring a loan in a non-cash form, it is worth considering a certain limit - 600,000 rubles. If the transfer amount does not exceed this amount, then the bank employees will not have any questions. When the amount is more than 600,000 rubles, be prepared to submit documents for such a transaction to the bank. The point is that so large loans bankers are required to notify Rosfinmonitoring if the loan is interest-free.

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

income tax

Money (property) issued to a borrower under a loan agreement and received back does not affect the calculation of income tax. They do not need to be included either in the composition of expenses (clause 12, article 270 of the Tax Code of the Russian Federation), or in the composition of income * (subclause 10, clause 1, article 251 of the Tax Code of the Russian Federation).

Operations for the provision of cash loans, including interest on them, are exempt from VAT (). But since the operation of transferring money to the borrower itself is not recognized as an object of VAT taxation (clause 2 of article 146, subparagraph 1 of clause 3 of article 39 of the Tax Code of the Russian Federation), this exemption applies only to the amount of accrued interest, which is the cost of the service for granting a loan. Therefore, neither on the amount of a cash loan, nor on the interest accrued on it, do not charge this tax. Since this transaction is exempt from VAT, the organization is not required to issue invoices.*

For the amount of material benefits do not accrue: *

• contributions to compulsory pension (social, medical) insurance ();
• contributions for insurance against accidents and occupational diseases (clause 1, article 20.1 of the Law of July 24, 1998 No. 125-FZ).

Andrey Kizimov,

income tax

Money (property) received under a loan (credit) agreement and returned back does not affect the calculation of income tax. They do not need to be included either in income (subclause 10, clause 1, article 251 of the Tax Code of the Russian Federation), or in expenses * (clause 12, article 270 of the Tax Code of the Russian Federation).

Andrey Kizimov,

Deputy Director of the Tax Department

and customs and tariff policy of the Ministry of Finance of Russia

3.Article:personal income tax

An entrepreneur who has received an interest-free loan will have to pay personal income tax on material benefits*

Being on the "simplification" with the object of income, I signed an interest-free loan agreement with another entrepreneur. Do I, as a borrower, have a material benefit in this case, do I need to pay personal income tax on it then?

Individual entrepreneur M.S. Sukhov

Answers the question A.G. Smotritskaya, tax consultant ANO YUS "Consultations and Services"

Yes, you will have a material benefit with which you need to pay personal income tax at a rate of 35% (clause 2 of article 224 of the NKRF). By general rule individual entrepreneurs on the simplified tax system are exempt from personal income tax, but only in relation to income received from entrepreneurial activity(Clause 3, Article 346.11 of the NKRF). It follows from your question that you received funds by entering into an interest-free loan agreement. And in this case, there is a material benefit * (Article 212 of the NKRF).

And the date of receipt of income in the form of material benefit will be the day the loan is repaid (letter of the Ministry of Finance of Russia dated May 16, 2011 No. 03-04-05 / 6-350). You can calculate personal income tax from material benefits on an interest-free loan using the formula: *

Answered the question

A.G. Smotrytska,
tax consultant
ANO YUS "Consultations and Services"