How to get an IP loan? Note to the individual entrepreneur. The entrepreneur took an interest-free loan: will there be personal income tax from material benefits

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 a transaction in which one party transfers to another cash or other objects united by generic characteristics, and the other accepts them with the obligation to return what they received 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 payment system for cash transfers in the amount of more than 600 thousand rubles, information about the transaction is transferred to Rosfinmonitoring, even if between citizens carrying out entrepreneurial activity entered into an interest-free loan agreement.

When applied common system taxation, 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

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 benefits from savings on interest. 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 materiel. 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.

In the course of doing business, a business entity may need borrowed funds, which it can receive either through a bank or by executing an agreement with a third party. In the article we will talk about the interest-free loan agreement between an LLC and an individual entrepreneur in 2018, we will analyze the features of the conclusion.

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

The current norms of the Civil Code of the Russian Federation allow organizations, individual entrepreneurs and ordinary citizens to conclude agreements among themselves, under which one of the parties provides funds to the other on the terms of an interest-free loan. An agreement of this form provides that funds are transferred to the borrower in a fixed amount for a certain period, while the use of funds is carried out free of charge.

Upon the expiration of the period specified in the agreement, the borrower is obliged to repay the entire amount of funds, interest and commission for using the loan are not charged or charged.

Mandatory details of the document

If the parties to the interest-free loan agreement are individual entrepreneurs and LLC (legal entity), then such an agreement must be drawn up in writing. The form of such an agreement is not established by law, but at the same time, the document must contain mandatory details, namely:

• full details of the parties:
• LLC: full name, legal address, PSRN, TIN, KPP codes, contact phone number;
• IP: full name and address of registration of the entrepreneur, TIN, contact phone number;
• signer details:
• LLC: full name and position of the representative of the company (manager), number and date of the power of attorney on the basis of which he acts;
• IP: full name of the entrepreneur;
• the date and place of the contract;
• bank details of the parties (name and code of the bank, current account number);
• subject of the contract (the fact of transfer of funds in the form of a loan);
• conditions for granting a loan (cash or non-cash form);
• payment for the use of funds (interest-free loan);
• term of the loan (in the form of a period or exact date return of funds);
• contract time;
• liability of the parties for violation of the terms of the agreement.

Features of compilation and necessary documents

An interest-free loan agreement between an individual entrepreneur and an LLC should be drawn up, guided by general requirements described in the Civil Code of the Russian Federation. At the same time, if necessary, the parties have the right to supplement the contract with special conditions, such as:

1. The right of the lender to demand from the borrower a fee for the use of funds (interest) if the debt is not repaid within the specified period. At the same time, interest can be accrued only for the period of using the money over the period established by the agreement. Otherwise, such a document is not recognized as an interest-free loan agreement.
2. Giving the lender the right to control the borrower's funds. When concluding an agreement, the parties may agree on the possibility of the creditor to control the balance of funds on the debtor's current account, in order to obtain full confidence that the debt will be repaid within the prescribed period.
3. Purpose of the loan. The legal entity has the right to provide the individual entrepreneur with targeted funds, which must be mentioned in the contract. For example, an LLC can transfer in favor of an entrepreneur an amount for the purchase of equipment, the purchase of goods, etc. In case of violation of the procedure for the intended use of funds, penalties provided for by the contract may be applied to the individual entrepreneur.

Individual entrepreneurs and LLCs can supplement the interest-free loan agreement with any other conditions, if required by the specifics of this civil law relationship.

Necessary documents for drawing up

In order to draw up an interest-free loan agreement between an individual entrepreneur and an LLC, the parties will need to prepare standard package documents. For an LLC, these documents will be:

• charter;
• power of attorney of the head, acting as a signatory, and his passport data (copy of the passport);
• a copy of an extract from the Unified State Register of Legal Entities confirming the registration of the LLC.

IP must be provided:

• identity card (passport);
• USRIP registration sheet;
• an extract from the Federal Tax Service stating that the individual entrepreneur is registered as a payer of insurance premiums (if the individual entrepreneur has employees);
• a certificate from the Federal Tax Service stating that the entrepreneur is an employer (if the individual entrepreneur has employees).

Tax implications for sole proprietorships and LLCs

According to the Tax Code, funds received by a business entity and recognized as income are subject to taxation. Thus, LLC as part of the base for calculating income tax should take into account any type of income. An individual entrepreneur, depending on the taxation regime, may pay income tax in the form of personal income tax (with the simplified tax system, UTII) or income tax (with the OSNO).

As for the LLC, which acts as a lender, the position of the regulatory authorities on the issue of taxation is not so unambiguous. On the one hand, a legal entity that transfers funds for use free of charge (without interest and commissions) does not receive income under the contract, which means that there is no subject of taxation in this case. On the other hand, the agreement may provide for the collection of interest for violation of the terms of debt repayment, or other commissions and payments under other terms of the agreement. In this case, the LLC receives income in the form of interest (commission, etc.), which is subject to taxation in the general manner.

A bank loan at a favorable interest rate for small business development is often not available, so entrepreneurs are looking for other ways to get financing. Many of them are considering schemes in which you can borrow money from other companies that want to profitably invest their free funds. In particular, they are interested in whether an individual entrepreneur (IP) can issue loans. There are no legal barriers to this. But in this case, it is necessary to take into account some nuances.

Contract in full

Details on the process of providing loans from a private person to an enterprise are prescribed in Chapter 42 of the Civil Code of the Russian Federation. In particular, it says that a loan agreement between an individual entrepreneur and a legal entity must be drawn up in writing.

The moment the document comes into force is the date when the borrowing company receives the funds in full by bank transfer or by depositing money into the cashier. To return the funds, you can also transfer the loan to the IP account or use cash.

The key clauses of the contract should contain the following information:

1. Availability and amount of interest on the loan. Two types of loans are legally allowed: interest-bearing and interest-free. If the terms of the transfer of money in debt do not involve the receipt of income, this must be indicated in the contract. It should also be marked interest rate if provided. The absence of interest in the agreement automatically makes the loan interest-bearing, and the rate on it will correspond to the key rate of the Central Bank at the time of repayment of the loan.
2. Interest payment procedure. By default, interest on a loan is paid monthly. If other conditions are provided, they must be prescribed.
3. Return period. If you do not specify this parameter, the loan will be considered perpetual. In this case, the borrower will have to return the money and interest on them within a month after the lender's request.
4. Possibility of early repayment. If early repayment of interest-free loans is usually not prohibited, then the borrower on an interest-bearing loan must agree to this. It is better to write down these conditions in detail.
5. Penalties for non-compliance with the terms of the contract. For late repayment of the debt, the borrower usually pays increased interest. And even if this is not reflected in the contract, the individual entrepreneur has the right to demand from the company monetary compensation. In addition, violation of the payment schedule threatens to terminate the contract unilaterally. In this case, the borrower will have to repay the entire loan amount and interest on it ahead of time.
6. Loan purposes. If they are spelled out in the contract, the borrower has the right to control the spending of funds, and the legal entity must provide him with such an opportunity. If this condition is not observed, the contract may also be terminated ahead of schedule.

In addition to a properly executed agreement, in a situation of a loan between an individual entrepreneur and a legal entity, another important point are the tax implications for each party to the transaction.

Tax implications

Most individual entrepreneurs work on the simplified tax system, the procedure for determining income in this case is established by Art. 346.15 of the Tax Code. If an individual entrepreneur issues an interest-bearing loan, then the interest on it will be related to non-operating income, which means that they will need to pay tax in accordance with the applicable taxation system (6%).

For the borrowing company, the funds received will not be considered income. As a result, you will not need to pay income tax.

Individual entrepreneurs who want to profitably invest free funds can apply to the mutual lending platform (P2P lending) "City of Money". Here they can lend legal entity for business development without intermediaries.

"City of Money" - a place where individual entrepreneurs issue loans to legal entities

The City of Money platform works on Russian market mutual lending for more than four years and specializes in business lending. Here, entrepreneurs can issue loans to other companies, individuals - to legal entities, you can also apply for a loan between individual entrepreneurs and individual. Over the entire period of its existence, loans totaling 1 billion rubles have been published on the site.

When providing a loan, it is important for companies to obtain maximum confidence in the return of money. The City of Money site uses a proven effective assessment of borrowing companies, legally correct execution of documents, due to which the level of delay on it is one of the lowest in the industry - no more than 4.5%.

Applications from companies are published on the site different forms, focus and lifespan, and they all receive funding. You can even get a loan from an individual entrepreneur to develop a business from scratch.

The site specialists not only assess the risks of the planned investments, but also help to correctly draw up an agreement, make calculations and control the flow of funds to the borrower's account.

You can find out under what conditions a loan can be granted in the section "