The loan agreement from the founder is interest-free and tax-free. Interest-free loan from the founder - tax consequences. Can a debt be forgiven?

Companies are created to make a profit. First of all, business owners and founders are interested in this. In order not to increase the authorized capital, they often resort to financial assistance through interest-free loans. In this article we will tell you how to properly apply for an interest-free loan from the founder without tax consequences in 2018.

In this article:

As a rule, if we are dealing with an LLC, the authorized capital is always assigned to a minimum. In 2018, this is still 10,000 rubles. But when a company faces difficulties, the founders do not like to increase the authorized capital. And there are not many ways to help a company financially. One of the most beloved by all founders is an interest-free company loan.

Loan from the founder in 2018: tax consequences

Generally, any proceeds must be taxed. First, let's look at it from the company's point of view. She received money into her account, which means it could be subject to income tax. But in our case they were listed as a loan and without interest. It would seem that we see this as a benefit for the company, but Article 25 of the Tax Code does not regulate the taxation of interest-free loans. Therefore, there will be no income tax in this situation.

Now let's look at the situation from the founder's point of view. He could have set interest and received it as income, but he deliberately refused to do so. In this case, such a decision can be interpreted as lost profits. The Ministry of Finance believes that a loan from the founder should be subject to taxation. This means that it is necessary to calculate the interest and pay personal income tax on it (letter dated May 25, 2015 No. 03-01-18/29936).

But this decision does not apply every time, but only if a controlled transaction was concluded between related parties. The founder takes risks if the following conditions are simultaneously met:

the founder's share in the company is more than 25 percent,
income from transactions between the company and the founder during the year exceeded 1 billion rubles.
In other cases, a loan from the founder of his company without interest is not subject to taxation.

Interest-free loan from the founder without tax consequences in 2018

There are several conditions under which the founder gives financial assistance (in this case, an interest-free loan) to his organization and tax consequences do not arise. Here they are:

The loan agreement must indicate that it is interest-free;
The founder is an individual;
The founder-lender has more than 50 percent of the share in the company.

If, for example, there are several founders in a company, then they can divide the shares equally. But for financing purposes, it is more convenient for one of them to have an ownership share of more than 50 percent. In this case, the condition must be met that the founder is an individual. Then he will be able to forgive the return of the interest-free loan. In this case, the company will not have taxable income.

be careful
Initially, the loan is not considered perpetual. The company cannot stipulate this in the contract. To forgive a debt, the founder either unilaterally writes a refusal to return the amount, or an agreement is drawn up between the parties in the absence of claims. From the moment the document is signed, the company’s obligations to the founder cease. We remind you that if the lender has less than 50 percent of the share in the company, then when the debt is forgiven, the company will receive non-operating income.

The founder does not generate income at the time of repayment of the interest-free loan. But if the company received an interest-bearing loan from the founder, there will be tax consequences in 2018. The founder will have to pay 13% personal income tax on the interest received.

Loan from the founder: registration

An interest-free loan can be issued at any time and in absolutely any amount. This is not specified anywhere. You can even give it away not in money, but in raw materials or building materials. In this case, you will also have to return similar materials so that there is no recognition of the sale.

It is necessary to conclude an agreement. If the receipt of money from the founder is confirmed only by payment documents, the tax office may recognize income. There will be tax consequences if the loan agreement with the founder does not state that the loan is interest-free. Without this phrase, it automatically becomes a regular interest-bearing loan. And the rate is recognized as the key rate at the time when the company must repay the debt.

An interest-free loan agreement cannot be made indefinite. But the founder can each time draw up a document in which he extends the loan repayment period.

When it comes to an interest-free loan from the founder, the tax consequences in 2017 will depend on several factors, which we will consider in our article.

The company received an interest-free loan from the founder, tax risks in 2017

Having received loan from the founder, the company puts itself in a risky position, since the founder is a priori an interdependent person, which means that controllers will take control of such a transaction. Poet tax consequences V 2017 year will depend on how tax authorities qualify interest-free provision of funds.

Neither the company nor the founder receive any income

In fact, having received interest-free loan from the founder, the company does not generate income, there is nothing to tax on profits, and the concept of “material benefit” is not used in Chapter 25 of the Tax Code of the Russian Federation. It turns out that tax consequences V 2017 there shouldn't be a year. The founder does not generate income either, since the company does not pay him interest for using the loan, and, therefore, there is no tax base for personal income tax.

Text – Sample interest-free loan agreement

Tax authorities recognize interest savings as a material benefit for the company

At the same time, tax authorities often classify such a transaction as a gratuitous financial service performed between interdependent persons. According to the controllers, the company, having received an interest-free loan from the founder, saves on interest, which is its non-operating income, with all the ensuing tax consequences.

Inspectors simply calculate the amount of such material benefit - based on the Central Bank refinancing rate that was in effect during the period of use of borrowed funds. In this case, the likelihood of challenging the position of controllers in court increases.

The concept of “material benefit” is not applied within the framework of Chapter 25 of the Tax Code of the Russian Federation

On the one hand, a service received free of charge relates to non-operating expenses (clause 8 of Article 250 of the Tax Code of the Russian Federation), and the provision of a loan is a financial service (subclause 15 of clause 3 of Article 149 of the Tax Code of the Russian Federation).

But the Presidium of the Supreme Arbitration Court, having repeatedly examined such disputes, has always noted that economic benefit can be recognized as income if two conditions are met:

if such benefit is subject to assessment:
if this benefit can be determined in accordance with the norms of Chapters 23 and 25 of the Tax Code of the Russian Federation.

And then the Presidium of the Supreme Arbitration Court reminds that in Chapter 23 of the Tax Code of the Russian Federation the concept of “material benefit” is spelled out, and interest savings are included in the personal income tax base. But Chapter 25 of the Tax Code of the Russian Federation does not consider the benefit from savings on interest for the use of borrowed funds as income tax income.

Receipt and return of an interest-free loan from the founder, posting in 2017

If the company received an interest-free loan from the founder, she needs to do the following in accounting postings:

If the company decides to issue an interest-bearing loan in order to avoid the close attention of controllers, the postings will be as follows.

Loan services are relevant among citizens of the Russian Federation. In accordance with established standards, not only banking institutions have the right to provide credit services; the founder of the organization also has the opportunity to provide financial assistance to an employee.

What are the features of a loan from the founder and what tax consequences will the participants in the transaction face?

Normative base

A loan is a transfer from a lender to a borrower of funds or property with the condition of repayment.

Dear readers! The article talks about typical ways to resolve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:

APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and 7 days a week.

It's fast and FOR FREE!

The Civil Code does not contain any restrictions regarding the issuance of borrowed funds by the founder to his employees. Accordingly, the financial transaction is permitted at the legislative level.

A loan from the founder is accompanied by a number of features that are of interest to tax authorities.

Among them are the following:

Loan size. If a company lends an employee more than 600 thousand rubles, then, in accordance with established standards, the financial transaction is subject to the control of auditors.
Loan type. The regulatory framework does not contain restrictions on the issuance of interest-free loans. The interest rate is not applied to the loan only if such a condition is specified in the agreement.

Note. Tax authorities scrutinize interest-free loans. They have the right to charge additional interest, arguing that a commercial organization should make a profit from transactions.

Form of agreement. The Tax Code contains provisions that oblige parties to a transaction to enter into a loan agreement only in writing, otherwise it has no legal force.

Registration of the contract

The parties to the transaction must fix the terms of the loan in a written agreement; established norms do not provide for other forms of agreement. The agreement comes into force only after the loan funds are transferred to the borrower.

The agreement must contain fundamentally important lending conditions. Among them are the following:

lending terms - the loan can be fixed, or it can be indefinite (loan funds are returned only when the need arises from the lender);
loan amount - legislative norms do not limit the parties to the transaction when determining the loan amount; it is established at the discretion of the parties to the agreement;
type of loan - the loan agreement must contain information that the loan is interest-free; in the absence of a condition, the borrower will automatically be charged an interest rate;
procedure for debt repayment - in this case, we are talking, for example, about monthly debt repayment and other conditions stipulated by the contract;
lending purposes - if the founder provides a targeted loan, this condition must be specified in the agreement; it affects the taxation procedure for the borrower’s material benefits.

Video: Tax schemes

Tax consequences of an interest-free loan from the founder in 2019

Tax services carefully check the legality of financial transactions carried out by citizens of the Russian Federation. Participants in a loan agreement need to familiarize themselves with the specifics of taxation and weigh the potential risks.

With VAT

When talking about tax consequences in relation to VAT, you need to pay attention to the form of the loan. If it was issued in a non-monetary form, then the lender must independently pay the VAT tax.

In accordance with established standards, financial transactions for issuing loans in cash are not subject to VAT. This is due to the fact that the organization, by providing an interest-free loan, does not receive a profit in the form of an interest rate, and accordingly there is no fact of receiving income.

Note. In cases where the non-taxable amount exceeds 5% of the organization's total expenses, input VAT must be allocated.

If, in the future, an agreement on debt forgiveness is signed between the parties to the transaction, the financial transaction will be recognized as a gratuitous transfer of funds to the employee. In this case, the Tax Code of the Russian Federation obliges the borrower to pay income tax.

With simplified tax system

Under the simplified tax system, the taxation procedure is identical to VAT. Accordingly, borrowings made to an employee are not taxable as a lender expense.

When repaying an interest-free loan, the founder also does not generate income, which eliminates the tax accounting obligation.

Only interest-bearing loans are subject to taxation, since the lender makes a profit by paying the interest rate.

Insurance premiums

When receiving an interest-free loan, the material benefit that arises for the employee does not relate to the payments transferred in favor of the borrower within the framework of the employment relationship. Accordingly, loan funds are not subject to taxes on insurance premiums.

For personal income tax

If a loan from the founder was issued to an employee of the organization from the second party to the transaction, in accordance with established standards, a material benefit arises due to savings on interest.

If the borrowed funds were received in rubles, the amount of material benefit must be calculated on the basis of 2/3 of the refinancing rate established by the Central Bank of the Russian Federation at the time of actual receipt of profit.

Note. The moment of actual receipt of profit in the form of material benefits from the interest rate is usually considered to be the last day of each month during the term of the loan agreement.

When providing an employee with an interest-free loan, the creditor organization acts as a tax agent. The calculation of the tax amount must be carried out by the tax agent, taking into account the increase in material benefits for each month.

Tax agents must withhold a specified amount of tax from the taxpayer’s income, that is, from the employee’s salary at the time of actual payment.

note. The amount withheld for tax purposes from an employee cannot exceed 50% of the person's salary or other income.

If the employee was previously provided with a tax deduction, his profit received in the form of a material benefit is taxed at a rate of 35%. An identical rate applies if borrowed funds were received for the purchase or construction of residential space.

Note. In 2019, adjustments were made to the procedure for calculating material benefits. Citizens have a specialized online calculator at their disposal; they just need to enter the loan terms and receive an automatic calculation.

Exceptions

The established norms of the Tax Code of the Russian Federation provide for cases when savings on interest rates are not taxed.

The following cases are exceptions:

loan funds are used to purchase residential space;
the loan is aimed at housing construction;
The funds were used to purchase plots for individual housing construction.

Late repayment of debt

By signing a loan agreement, the borrower undertakes to repay the borrowed funds in a timely manner. If the employee violates the deadline for repaying the loan, the founder has the right to demand from him additional interest for the delay.

The creditor, when collecting penalties for late payment of the debt, must include them in unrealized income at the time they are recognized by the borrower or at the time of the court decision (in case of litigation).

The moment of recognition of penalties by the borrower is considered to be the date of signing an agreement to agree to the imposed fine. The founder must include the penalty in taxable income after receiving the funds.

Note. In the event that there is no recognition of penalties by the borrower or the judicial authorities, the lender does not generate taxable income.

Debt forgiveness

As practice has shown, the creditor often decides to forgive the debt to the employee. In this case, it is necessary to take into account the taxation features of the financial transaction.

When forgiving debt, NFL that was accrued as a material benefit from interest rate savings must be taken into account. The tax agent is obliged to continue calculating it until the entire amount of credit funds has been exhausted.

Moreover, the forgiven debt is also subject to taxation, but at a rate of 13%. The tax must be calculated at the time of notification of debt forgiveness or at the time of signing an agreement on the donation of loan funds.

The minimum authorized capital for registering an LLC is only 10,000 rubles. This amount is only enough to organize an intermediary business within the walls of your own apartment. What to do if you need money to develop your business, but don’t want it? Let's take a closer look at an interest-free loan from the founder: the tax consequences of 2019.

How to get a loan

If the owner lends his company money, then the member and the limited liability company are in . There are no restrictions on the size of the share in the authorized capital or the organizational and legal form of the founder (individual or legal entity). The transferred amount is also not limited by law.

The agreement must be drawn up in writing, as a separate document, preferably on company letterhead. If you do not formalize it in this way, but limit yourself only to documents confirming the receipt of money (payment order or cash receipt order), then there is a risk that the courts will refuse to recognize the borrowing relationship of the parties.

You can lend not only money, but also any valuables that must have generic characteristics. The borrower undertakes to return not the same thing, but a similar one, so the subject of the agreement may be building materials, goods, raw materials, etc. Of course, the owner of the organization most often lends money rather than anything else.

The owner of the company can direct the money for certain purposes, then the loan will be targeted. In this case, the agreement must contain not only a condition on the intended purpose, but also a procedure for monitoring the use of transferred funds. For example:

transfer of documents confirming the intended use (supply agreements, invoices, receipts, payment orders, checks);
notification of the date and place of delivery of purchased valuables;
providing access to the place of storage of purchased property.

If the borrower does not fulfill the condition of the intended purpose, then the other party has the right to demand the return of money ahead of schedule or the application of additional sanctions provided for in the agreement.

By default, a loan agreement is considered compensated, i.e. involves the accrual of an interest rate, even if the terms and conditions do not say anything about this. In this case, interest is calculated at the refinancing rate on the day the debt is repaid. To ensure that this condition does not apply automatically, the provisions of the contract must explicitly state that interest is not charged for the use of funds.

Tax on interest that does not exist

Can the founder, if necessary, give an interest-free loan to his organization? Of course, it can, but the situation of refusing interest has its own peculiarities. For example, if a loan is issued to the founder of his company without receiving interest, does he have income?

From an everyday point of view, of course not, because the founder did not receive any financial benefit from this. But the Tax Code interprets this situation differently - I didn’t receive it because I didn’t want to, but I could have made money on it. Accordingly, he could have income, and where there is income, there is taxation. And it’s okay that this income is only estimated, the tax will be real (letter from the Ministry of Finance dated May 25, 2015 No. 03-01-18/29936).

Fortunately, such a specific point of view extends to a rather rare situation - if a transaction is concluded between interdependent persons that can be considered controlled.

Let's figure it out. According to Article 105.1 (2) of the Tax Code of the Russian Federation, interdependent persons are recognized as an individual and an organization if the share of participation of this person is more than 25%. That is, if your share in the company is more than 25%, then you are dependent on it and can act to the detriment of your personal interests.

Now we need to make sure that the transaction concluded between related parties is controlled in accordance with the provisions of Article 105.14 of the Tax Code of the Russian Federation. To do this, the amount of income from transactions concluded by such persons during the year must exceed 1 billion rubles. So, if an owner with a share of more than 25% lent his company a smaller amount, he can rest easy; he will not face additional tax on the income lost from interest.

But what about the organization that received an interest-free loan from the founder? Does she have income if she does not pay interest for using the money of the owner of the company? Here the Ministry of Finance answers as follows: there is a material benefit here, but since the procedure for determining the benefit from an organization receiving an interest-free loan is not established by Chapter 25 of the Tax Code of the Russian Federation, the tax base does not increase (letter of the Ministry of Finance dated 02/09/2015 No. 03-03-06/1/5149 ).

It is interesting that in the opposite situation, when it is issued, the individual receives a material benefit in the form of interest that is not charged, and it is subject to personal income tax. True, the tax amount is still significantly less than when receiving the most favorable loan from a bank. For example, if a participant borrowed 100,000 rubles from his company for three months, then the personal income tax on material benefits will be just over 600 rubles. At the bank, for such a loan, at the lowest annual rate, you would have to pay about 3,000 rubles.

Loan repayment

The funds received are returned within the period specified in the agreement (one-time or according to a payment schedule). If a period is not specified in the contract, then the return occurs within 30 days after receipt of the written request of the owner. The method of return is also usually provided for in the contractual terms.

Important: cash proceeds for goods, works, services, stored in the organization’s cash desk, are issued only for certain purposes, such as wages, payment for goods, issuance of money for reporting. It is impossible to repay a debt with cash proceeds (Instruction of the Bank of Russia dated October 7, 2013 No. 3073-U). The founder can only be given cash that was withdrawn from the LLC’s current account. Well, the easiest way is to give him the money by non-cash transfer to an account or card.

Is it possible to return material assets, such as goods, to the lender instead of borrowed money? No, you can’t, the loan is returned with property of the same kind that was taken. If any other property is returned instead of money, then this situation is interpreted as a sale, i.e. that the participant bought something from his company. In this case, the organization will have to pay tax according to the chosen regime, for example, for the simplified tax system for Income it will be 6% of the amount.

Debt forgiveness

The loan agreement involves the return of the borrowed amount or property. Considering that the owner of the company is interested in its development, he may not demand repayment of the debt. Can the founder forgive the loan? How does legislation assess this situation in 2019?

Waiver of the requirement to repay the founder's loan is possible, but forgiveness of the debt should not affect the solvency of the lender in relation to other creditors, if any (Article 415 of the Civil Code of the Russian Federation).

Is it possible to immediately indicate in the text that the loan is irrevocable? No, because the legal nature of the loan does not allow this. Debt forgiveness terminates the borrower's obligations and must be formalized by a separate written agreement of the parties or unilateral notification from the lender. In the document, the founder indicates the details of the agreement and the amount of debt, and also confirms that the obligations of the debtor organization are terminated unilaterally.

Of course, here income arises in the amount of the forgiven debt. Income is classified as non-operating, because it is not received from the sale of goods or services of the organization. Non-operating income is taxed according to the chosen taxation regime, for example, for OSNO it is 20%, and for the simplified tax system - 6%.

Please note: if the participant who refused to demand repayment of the debt has a stake in the company of more than 50% of the authorized capital, then non-operating income does not arise here and no tax is charged (based on Article 251 of the Tax Code of the Russian Federation). Such debt forgiveness is recognized as gratuitous financial assistance, but the lender in this case can only be an individual.

To summarize, an interest-free loan from the founder - tax consequences of 2019:

The money received is not recognized as income of the enterprise if it is later returned to the owner.
It is not allowed to return property instead of money, otherwise this situation is interpreted as a sale, and the LLC must pay tax on the amount received.
The owner of the company can forgive the debt, after which he will have no rights to this amount or the profits earned with its help.
For an organization, a forgiven debt is non-operating income, therefore it is taxed according to the chosen regime.
If the lender has a share of more than 50% in the company, then he has the right to provide free financial assistance, and the organization will not have to pay tax for it.
Gifts are not allowed between commercial entities, so only a participant who is an individual can forgive the debt.

Andrey Sokolov

Articles written

Creating a limited liability company is painstaking work and time. Having decided to establish a company, you need to delve into various details and nuances, study the rules of taxation, management of working capital, etc. Often in such situations, competent legal assistance is needed. To put a company on its feet, a financial base is needed. The law establishes that the founder is obliged to deposit the authorized capital into the company's current account within 120 days. As practice shows, at the very beginning, the company's expenses exceed the available cash. Which leads to the fact that the founder can make an interest-free loan.

What such actions are fraught with, and what consequences gratuitous assistance or contributions can have for a business, is not clear to everyone in 2019. To understand the presented industry, it is necessary to carefully study the provisions and norms of tax legislation, individual acts, resolutions and orders. However, knowledge of theory does not always help in practice when complex legal situations arise. The optimal solution, when the founder has difficulties with debt repayment and taxation of working capital, is to seek help from a lawyer online.

A specialist will remotely study your circumstances, give effective recommendations and practical advice, and develop an individual algorithm of actions. Focusing on the tips of a legal professional, the applicant will be able to deal with the problems that have arisen due to replenishing the company’s financial account with personal funds. In 2019, it is very difficult to act in the taxation industry without legal support. Legal support allows you to solve many problems, get around the sharp corners of the law, while saving personal resources.

Interest-free loan from the LLC founder and rules for its use until 2019

When the authorized capital is not enough to raise and develop the company, the founder can make an interest-free loan or take out a regular interest-bearing loan. Since the second option entails the accrual of interest, overpayments and penalties, novice businessmen prefer to contribute funds without interest. You can contribute financial assistance by contacting the bank, where you will need to provide a sample loan agreement according to the 2019 standard. The law also allows replenishment of the company’s material base by directly depositing funds into the cash register.

The money contributed should be enough to resolve the situation. After stabilization of financial indicators and the beginning of an increase in profits, the founder can take the amount of the debt back or forgive the funds. However, it is important to understand that gratuitous financial assistance and interest-bearing loans must be taxable according to 2019 criteria. The legislation of the Russian Federation provided that the interest-free contribution does not affect the income, expenses and net profit of the organization, and therefore represents an economic benefit that is not subject to taxes.

If the founder decides to forgive the loan, the amount of the contribution will be recognized as non-operating income. Such funds are subject to income tax withholding at the standard rate in force in Russia in 2019. The amount of deductions to the state budget in your situation should be clarified with the Federal Tax Service. You can also seek support and professional legal assistance from a lawyer online. An expert will help you carry out all the calculations correctly and avoid delays in paying fees, because this entails administrative liability.

It is important to reflect an interest-free or interest-bearing loan in the company’s accounting entries. After all, subsequently the accountant will have to report on income and expenses to the Federal Tax Service. If the financial assistance was short-term in nature, and the funds were in the account for a period of up to 12 months, then code 66 should be used in the documents. Long-term contribution used for more than a year is reflected in the entries with a coefficient of 67.

Consequences of an interest-free loan from the founder according to the new rules of the Tax Code of the Russian Federation

Until 2019, the gratuitous transfer of money to a company did not entail any consequences. Since January of this year, everything has changed, because new tax rules came into force. Now you cannot use a loan for free, even if there is no interest rate at all. Material benefits did not allow the use of income tax equal to 35% on debt funds.

This situation arose due to inaccuracies in the wording of the law. Having studied the old version of the Tax Code, you can see that it states that the tax on the economic benefits associated with savings on loan interest should have been paid at the time of repayment of the interest funds. Since the assistance was free of charge, there was no need to transfer part of the money to the state treasury. The new bill, which came into force at the beginning of 2019, states that the material benefits of companies and enterprises are now determined based on data at the end of the month. This means that companies with outstanding loans and no official debt forgiveness will be required to pay taxes.

The amount of payment will depend not only on the amount of funds received, but also on the terms of use of credit finance. Since January 2019, companies are required to calculate and pay income tax on loans on a monthly basis.

Interest-free financial assistance from the founder of a limited liability company, represented in an amount of more than 1000 rubles, must be officially documented, since the absence of an agreement may lead to the recognition of the transaction as invalid.

It is worth noting that the company may not wait for debt forgiveness or the expiration of any deadlines. Repayment of money can be made ahead of schedule, without relying on the consent of the lender. In order not to get confused in this situation, and to correctly apply innovations, you need to consult with a qualified specialized lawyer with experience in the field of tax legislation.

How to avoid or reduce the tax rate on a loan

Having learned the new tax rules in force in 2019, many businessmen panic, because they have not formalized debt forgiveness and have not made a refund. How to avoid accumulating debts to the tax service and administrative liability in such a situation? As experts note, there are several options for the development of events.

You can renew the loan agreement. This will not allow you to avoid personal income tax, but will guarantee a reduction in the amount of tax. The amount will be calculated on the date specified in the loan agreement. The closer it is to the beginning of 2019, the lower the amount you will have to pay. Long-term outstanding loans will entail significant troubles and financial consequences. Another option that allows you to avoid paying tax on profits from an interest-free loan is to transfer the transaction to another format. It is necessary to accrue interest on the amount of debt; in this case, taxation will subsequently be carried out according to a different scheme and formula.

However, the easiest way to avoid the 35% tax is through debt forgiveness. In this case, the loan amount will be considered the company’s net profit and will be taxed, but at the standard rate of 13%, as for all tax residents of the Russian Federation. If the loan forgiveness occurred in 2015, before March 1, 2019, the person had to notify the tax authorities about this by filing the appropriate declaration. After submitting a report on the amount of funds received and expenses, Federal Tax Service employees will provide the person with a tax payment calendar. And they will give you a limited period to repay the amount. To understand all the nuances of the procedure, a company can hire an experienced legal expert to provide legal support for all procedures and maintain reporting to the Federal Tax Service.