Under the loan agreement, the lender transfers funds or other things into the ownership of the borrower, and the borrower undertakes to return to the lender the same amount of money or things in the same quantity (Clause 1, Article 807 of the Civil Code of the Russian Federation). At the same time, the law does not limit the circle of persons acting as borrowers or lenders; accordingly, a legal entity has the right to issue loans to another legal entity.

In accordance with paragraph 1 of Art. 49 of the Civil Code of the Russian Federation, commercial organizations, with the exception of unitary enterprises and other types of organizations provided for by law, may have civil rights and bear civil responsibilities necessary to carry out any types of activities not prohibited by law.

Thus, civil legislation does not contain a ban on concluding loan agreements between organizations. The terms of the loan are determined by the norms of the Civil Code of the Russian Federation and the content of the agreement concluded by the parties.

In addition, based on the content of Art. 809 of the Civil Code of the Russian Federation, the company has the right to set an interest rate for the use of money.

When applying for an interest-bearing loan, the company itself determines the amount of interest. In the absence of a direct amount of interest and provided that the parties have designated the agreement as interest-bearing, interest on a loan of a legal entity is established based on the bank interest rate (refinancing rate) in effect at the location of the legal entity on the day the borrower pays the amount of the debt or its corresponding part. The agreement may stipulate that there is no obligation to pay interest. Thus, civil legislation does not establish direct prohibitions on the registration of interest-free loans between legal entities.

Let us dwell on the issue of taxation of such a transaction, since this is a very important aspect and companies need to have this legal information.

According to tax legal relations, it turns out that the lending company receives profit in the form of interest by issuing an interest-bearing loan to another company. This income increases the tax base for paying income taxes. The borrowing company, on the contrary, reduces the tax base by the amount of interest paid.

It is important to remember that if an interest rate is established in the agreement that does not coincide with the values ​​​​specified in Art. 269 ​​of the Tax Code of the Russian Federation, the party that has received less income due to a decrease in the interest rate may be assessed additional tax by the tax authority on the lost income. And in the event of an increase in the interest rate compared to the values ​​​​specified in Art. 269 ​​of the Tax Code of the Russian Federation, the tax authority for the purposes of calculating income tax may not recognize as an expense the amounts received in part of such excess.

In addition, if the loan agreement has signs of a controlled transaction (Article 105.14 of the Tax Code of the Russian Federation), then a corresponding notification must be sent to the tax authority indicating the amounts of accrued interest according to accounting data.

If there is a condition in the loan agreement on the payment of interest, such interest is recognized as non-operating income (clause 6 of Article 250 of the Tax Code of the Russian Federation), and loans are recognized as debt obligations (clause 1 of Article 269 of the Tax Code of the Russian Federation). These provisions are taken into account for income tax purposes. Thus, the basis for accrual of non-operating income under a loan agreement in tax accounting is a valid debt obligation, the terms of which provide for the payment of interest. In accordance with paragraph 4 of Art. 328 of the Tax Code of the Russian Federation, interest received (receivable) by a taxpayer for the provision of funds for use is taken into account as part of income (expenses) subject to inclusion in the tax base, on the basis of an extract on the flow of funds of the taxpayer in a bank account, unless otherwise provided by this article .

Since interest is not paid on an interest-free loan, the norm of clause 6 of Art. 250 of the Tax Code of the Russian Federation is not applicable, since there is no income subject to taxation (interest on an existing debt obligation). This legal position should be used when the tax authority presents demands for additional assessment of income tax (which is often encountered in the practice of tax authorities when conducting on-site audits). When concluding loan agreements, the parties have the right (including due to the principle of freedom of contractual relations - Article 421 of the Civil Code of the Russian Federation) to either establish payment of interest or not to establish (the main thing is to clearly and unambiguously indicate this in the text of the loan agreement).

It should be noted that, within the meaning of the legal position of the Constitutional Court of the Russian Federation (Resolution No. 3-P dated February 24, 2004), neither tax nor judicial control is intended to check the economic feasibility of decisions made by business entities, which in the business sphere have independence and broad discretion, since due to the risky nature of such activities, there are objective limits in the ability of the relevant government bodies to identify the presence of business miscalculations in it.

In accordance with the determination of the Constitutional Court of the Russian Federation dated June 4, 2007 No. 320-O-P, tax legislation does not use the concept of economic feasibility and does not regulate the procedure and conditions for conducting financial and economic activities. Consequently, the income received cannot be assessed in terms of its expediency, rationality, efficiency or the result obtained. In other words, the tax authority should not require organizations to provide for the establishment of interest rates for the use of borrowed funds in loan agreements.

Now it is impossible to check the compliance of prices with market ones as part of an on-site or desk audit. Such a prohibition is established in paragraph. 3 p. 1 art. 105.17 Tax Code of the Russian Federation.

Verification of transactions between related parties is carried out as part of an independent tax audit by the Federal Tax Service of Russia at its location (Article 105.17 of the Tax Code of the Russian Federation).

Nevertheless, in practice there are quite often cases when tax authorities, as part of an on-site audit, charge additional income tax on interest-free loans. In this connection, taxpayers often manage to defend their case only in court (for example, decisions of the Fifteenth Arbitration Court of Appeal dated 04/23/2017 N 15AP-13555/2016, 15AP-14101/2016; Third Arbitration Court of Appeal dated 07/08/2016 in case No. A74 -4459/2015; Thirteenth Arbitration Court of Appeal dated August 23, 2016 N 13AP-13581/2016, 13AP-13582/2016).

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Interest-free loan agreement

A loan agreement (Article 807 of the Civil Code of the Russian Federation) is considered initially interest-free if (clause 4 of Article 809 of the Civil Code of the Russian Federation):

• parties to the agreement are individuals (including individual entrepreneurs) with a loan amount of no more than 100 thousand rubles;
• The subject of the contract is not money, but things defined by generic characteristics.

In the document on the terms of an interest-free loan between legal entities or between individuals for an amount greater than 100 thousand rubles, it is necessary to include wording stating that interest is not charged on this loan (clause 1 of Article 809 of the Civil Code of the Russian Federation). Otherwise, the agreement will be considered an ordinary loan agreement and interest will be accrued on it (resolution of the Volga-Vyatka District Arbitration Court dated September 24, 2015 No. F01-3095/15 in case No. A82-1138/14).

On a note! To qualify borrowed legal relations, it is enough to establish the appropriate nature of the obligations that have arisen: one person borrows money from another person and undertakes to return it (Review of the judicial practice of the RF Armed Forces No. 1, approved by the Presidium of the RF Armed Forces on April 13, 2016).

Interest-free loan between legal entities

Running a business without borrowing money is almost impossible. But providing an interest-free loan indicates trust and interest in the success of the borrower’s business or the interdependence of the parties.

Important! If a loan is provided by a non-credit organization for an amount equal to or greater than 600,000 rubles, such transactions are subject to mandatory state control (paragraph 7, subparagraph 4, paragraph 1, article 6 of the Federal Law “On combating the legalization (laundering) of proceeds from crime, and financing of terrorism" dated August 7, 2001 No. 115-FZ).

The credit institution is obliged to report to the Federal Financial Monitoring Service information about the loan provided or received. At the same time, the bank tracks loan payments on an accrual basis if the amount under the agreement as a whole is more than or equal to 600,000 rubles. (Clause 3 of the Bank of Russia information letter dated September 1, 2009 No. 16).

Failure to comply with these requirements is an administrative offense in accordance with Part 1 of Art. 15.27 Code of Administrative Offenses of the Russian Federation (resolution of the 9th Arbitration Court of Appeal dated December 11, 2014 No. 09-AP-50597/14 in case No. A40-120479/14).

Note! The systematic provision of loans by a non-credit organization can be qualified as illegal banking activity (Article 172 of the Criminal Code of the Russian Federation).

Interest-free loan agreement between legal entities: design features and sample

To avoid litigation, the following terms should be included in the contract:

• Exact characteristics of the loan subject. It is necessary to indicate the amount or number of things being transferred (Resolution of the Autonomous District of the East Siberian District dated January 26, 2016 No. F02-7180/15).
• The procedure for transferring the subject of the loan. Otherwise, subsequently in court it will be necessary to use other evidence (cash order, payment order, bank statements, etc.) of its transfer (resolution of the 18th Arbitration Court of Appeal dated July 22, 2014 No. 18AP-6771/14 in case No. A47-7348/13) .
• Loan repayment. It is better to formulate the point in a standard way: the obligation is considered fulfilled at the moment of repayment of the loan amount (or things) or the receipt of money in the borrower’s current account (appeal ruling of the Stavropol Regional Court dated December 8, 2015 in case No. 33-8281/15).
• Loan repayment period. It is not an essential condition, but it is worth stating, since the courts do not have a uniform approach to this issue (resolution of the Administrative Court of the East Siberian District dated August 20, 2015 No. F02-4403/15 in case No. A78-10255/14).

Important! Most often, interest-free loan agreements are challenged by creditor organizations when the party is a bankrupt debtor, since by concluding such agreements a bankrupt organization may try to change the priority of creditors' claims or withdraw funds (Resolution of the Central District Administrative Board dated December 19, 2014 No. F10-4585/14 in case No. A62-5396/13).

However, the risk of an interest-free loan is not only in the prospect of legal disputes: an interest-free loan agreement between legal entities may attract the attention of the competent authorities if the parties to the transaction are interdependent (Article 105.1 of the Tax Code of the Russian Federation, letter of the Ministry of Finance of Russia dated May 25, 2015 No. 03-01-18/ 29936).

Interest-free loan agreement between LLC and LLC

The parties to an interest-free loan agreement can be any legal entity, regardless of its legal form. In particular, such a transaction can be concluded between two LLCs. The law does not contain any prohibitions in this regard.

Important! It is worth remembering that if the parties to the transaction are interdependent, the tax authority will require inclusion in the tax base when calculating income tax the amount of interest that could have been received in the case of a loan between non-related parties in a comparable transaction (letter of the Ministry of Finance of Russia dated October 5, 2012 No. 03-01-18/7-137).

However, the clarifications of the Ministry of Finance of Russia are advisory in nature and do not have the binding force of law, therefore the question of taxation of the borrower under an interest-free loan agreement remains open (see, for example, Resolution of the Volga District Autonomous District of 04/08/2016 in case No. A55-4479/2015),

On a note! If cash is transferred under an interest-free loan agreement, it is worth keeping in mind that the amount of such an agreement is limited: no more than 100,000 rubles. (Clause 6 of the instruction of the Central Bank of the Russian Federation “On cash payments” dated October 7, 2013 No. 3073-U).

It is also necessary to take into account that when signing an interest-free loan agreement between two LLCs, it is worth checking the powers of the persons representing the parties. Often such transactions are disputed precisely due to the lack of proper authority among the signatories (resolution of the 2nd Arbitration Court of Appeal dated January 29, 2015 No. 02AP-11127/14 in case No. A29-4188/14).

Thus, when drawing up an interest-free loan agreement, it is necessary to check whether the borrower and the lender are interdependent, in order to avoid increasing the tax base for income tax, and also whether this transaction will be controlled for the purposes of combating the legalization of corruption.

A loan obligation between legal entities requires precise wording regarding the subject, timing of repayment and the moment of fulfillment of the obligation by the borrower.

Cash loan agreement with interest implies the transfer of funds (but not things) into the ownership of the borrower for a certain period (Article 807 of the Civil Code of the Russian Federation). After a specified period of time, the funds must be returned in full to the lender, including interest on the use of the loan.

Subject of an interest-bearing loan agreement between legal entities

An interest-bearing loan agreement between legal entities or persons with a different legal status must clearly define the subject of the transaction (amount of funds).

Money can be transferred in national or foreign currency. However, if a loan is issued in dollars/euros, etc., the agreement must include a reference to the bank at whose current rate mutual settlements will be made.

Parties to a loan agreement with interest

The transaction involves a borrower and a lender. There are no restrictions on the legal status of the parties. Individuals and legal entities, as well as individual entrepreneurs, can participate in transactions. There are also no restrictions on the relationship between the borrower and the lender. Simply put, a legal entity can accept money from the founder of an organization and so on.

Form of interest-bearing loan agreement between legal entities

For legal entities, regardless of the terms and amount of the loan, only one rule applies: the agreement is concluded in simple written form. Notarization (certifying a document in the manner prescribed by law) is not required. However, if one of the parties expresses a desire, the other does not have the right to refuse.

Terms of the interest-bearing loan agreement

In addition to clearly identifying the subject matter, the parties should agree on a number of additional terms. As a rule, the parties clearly stipulate the exact date for the return of funds, and also draw up a payment schedule as a separate annex to the agreement. The legislator allows the signing of an agreement without specifying a date for the return of money. In this case, the general rule applies: the borrower undertakes to repay the loan within 30 days from the written request of the lender.

Considering that interest-bearing loan agreement between legal entities, the parties must indicate the exact timing of interest payments (they may not coincide with the date of mandatory payments). A separate schedule is also drawn up.

It is also necessary to determine the responsibility for late payment of the debt for the borrower. As a rule, as a penalty, the parties either agree on a percentage of the amount for each day of delay, or a specific amount.

Taxes on loans between legal entities at interest

Preparing Interest loan agreement for legal entities (sample), it is important to understand that the lending organization receives profit in the form of interest. Accordingly, the payment of taxes is implied.

Income in the form of interest is classified as non-operating (Article 249 of the Tax Code of the Russian Federation). VAT is not paid.

However, it should be noted that, in accordance with Art. 309 of the Tax Code of the Russian Federation, loans received from foreign enterprises are subject to taxation, namely, you will have to pay income tax.

Rights and obligations of legal entities with interest-bearing loans

One of the main obligations of the borrower to the lender is the timely payment of funds, as well as interest.

If a targeted loan has been received, then it is necessary to create conditions under which the lending organization can control the expenditure of funds for the purposes specified in the agreement (Article 814 of the Civil Code of the Russian Federation).

A borrower who does not repay money on time is at great risk. In this case, the lender has the right to demand early payment of the amount provided (Article 811 of the Civil Code of the Russian Federation).

Legal entities have the right to accept a loan both through non-cash payment and in cash through the organization’s cash desk. It is advisable to record the chosen method in the agreement in the “Subject” section.

Also, to ensure maximum security of the transaction, it is recommended to draw up a receipt for receipt of funds.

Compose a literate interest-bearing loan agreement possible on our website. The designer takes into account all controversial issues and helps to secure the transaction as much as possible. Use the service right now!

Interest rate loan agreement between legal entities sample 2018 free download standard form example form

AGREEMENT N _____

cash loan with interest (between legal entities)

g. _______________ “__”___________ ____ g.

We refer to hereinafter as "Lender",

(name of company)

represented by _____________________________________________________________________, acting

(position, full name)

based on ______________________________________________________________, on the one hand, and

(Charter, power of attorney)

We shall hereinafter be referred to as “Borrower”,

(name of company)

represented by _______________________________________________________________________, acting

(position, full name)

on the basis of ________________________________________________, on the other hand, jointly

(Charter, power of attorney)

referred to as the “Parties”, individually “Party”, have entered into this Agreement

1. SUBJECT OF THE AGREEMENT 1.1. The Lender transfers to the Borrower the ownership of funds in the amount of _____ (__________) rubles (hereinafter referred to as the “Loan Amount”), and the Borrower undertakes to return the specified Loan Amount together with the interest due in the amount and terms stipulated by the Agreement<*>.

An agreement is considered concluded if an agreement is reached between the parties, in the form required in appropriate cases, on all the essential terms of the agreement. The condition on the subject of the contract is an essential condition of the contract (clause 1 of Article 432 of the Civil Code of the Russian Federation).

The essential terms of the contract are the conditions that are named in the law or other legal acts as essential or necessary for contracts of this type (paragraph 2, paragraph 1, article 432 of the Civil Code of the Russian Federation). The loan amount is an essential condition of the loan agreement (clause 1 of Article 807 of the Civil Code of the Russian Federation).

1.2. The interest rate under this Agreement is _____% of the Amount

loan in ____________________.

(specify period)

1. PROCEDURE FOR PROVIDING AND RETURNING THE LOAN AMOUNT 2.1. The Lender transfers the Loan Amount to the Borrower by transferring it to the Borrower's bank account specified in Section 9 of this Agreement. The date of transfer of funds is considered to be the date they are credited to the Borrower’s current account.

2.2. Confirmation of the transfer of the Loan Amount to the Borrower's bank account is a copy of the payment order with the bank's mark on execution.

2.3. The Borrower undertakes to repay the Loan Amount along with any interest due by “__”___________ ____.

2.4. The loan amount is repaid in accordance with the debt repayment schedule, which is an annex and an integral part of this Agreement.

2.5. The loan amount can be repaid by the Borrower ahead of schedule only with the written consent of the Lender.

1. PROCEDURE FOR CALCULATION AND PAYMENT OF INTEREST3.1. Interest for the use of the Loan Amount specified in clause 1.2 of this Agreement is accrued from the day following the day the Loan Amount is provided in accordance with clause 2.1 of the Agreement until the day the Loan Amount is returned in accordance with clause 2.3 of the Agreement, inclusive.

3.2. Interest for the use of the Loan Amount is paid no later than the _____ day of each month, starting from the month following the month of provision of the Loan Amount. Interest accrued for the last period of use of the Loan Amount is paid simultaneously with the repayment of the Loan Amount.

Option: Interest for using the Loan Amount is paid simultaneously with the repayment of the Loan Amount.

1. RESPONSIBILITY OF THE PARTIES4.1. In case of failure to repay the Loan Amount within the specified period of clause 2.3 of the Agreement, the Lender has the right to require the Borrower to pay a penalty in the amount of _____% of the debt amount for each day of delay, but not more than _____% of the Loan Amount.

4.2. Collection of penalties does not relieve the Borrower from fulfilling obligations under this Agreement.

4.3. In cases not provided for by this Agreement, property liability is determined in accordance with the current legislation of the Russian Federation.

1. FORCE MAJEURE5.1. The parties are released from liability for non-fulfillment or improper fulfillment of obligations under the Agreement due to force majeure.

   forces, that is, extraordinary and unpreventable under given conditions

   circumstances, which mean: ___________________________________

   __________________________________________________________________________.

   (list force majeure circumstances)

5.2. If the circumstances specified in clause 5.1 of the Agreement occur, the Party is obliged to notify the other Party about them in writing within _____ (__________) days. The notice must contain information about the nature of the circumstances, the expected duration of their validity and termination.

5.3. If a Party does not send or untimely sends the notice provided for in clause 5.2 of the Agreement, then it is obliged to compensate the other Party for losses incurred by it.

5.4. In cases of the occurrence of circumstances provided for in clause 5.1 of the Agreement, the period for fulfilling obligations under the Agreement is suspended for the time during which these circumstances apply.

5.5. If the circumstances listed in clause 5.1 of the Agreement occur,

continue to operate for more than _________________________, then each of the Parties

(specify period)

has the right to terminate the Agreement early.

1. DISPUTE RESOLUTION6.1. The parties will strive to resolve all possible disputes and disagreements that may arise under the Agreement or in connection with it through negotiations.

6.2. Disputes that are not resolved through negotiations are referred to the court in the manner established by the current legislation of the Russian Federation.

1. CHANGE AND EARLY TERMINATION OF THE AGREEMENT 7.1. Any changes and additions to this Agreement are valid if they are made in writing and signed by duly authorized representatives of the Parties. The corresponding additional agreements of the Parties are an integral part of the Agreement.

7.2. All notices and communications under the Agreement must be sent by the Parties to each other in writing.

7.3. The Agreement may be terminated early by agreement of the Parties or in another manner and on the grounds provided for by the current legislation of the Russian Federation.

1. FINAL PROVISIONS

Along with the condition on the subject of the contract, as well as the conditions that are named in the law or other legal acts as essential or necessary for contracts of this type, the essential terms of the contract are all those conditions regarding which, at the request of one of the parties, an agreement must be reached (para. 2 clause 1 article 432 of the Civil Code of the Russian Federation). Thus, the parties have the right to define for themselves any condition as essential, in the absence of which the contract cannot be considered concluded.

8.1. This Agreement comes into force from the moment the Loan Amount specified in clause 1.1 of this Agreement is credited to the Borrower’s bank account specified in Section 9 of the Agreement.

8.2. This Agreement is valid until the Parties fully and properly fulfill their obligations under the Agreement.

8.3. This Agreement is drawn up in two copies, one copy for each of the Parties.

8.4. For all other issues not regulated by this Agreement, the Parties will be guided by the current legislation of the Russian Federation.

1. ADDRESSES, DETAILS AND SIGNATURES OF THE PARTIES Lender BorrowerName: ______________________ Name: ______________________

   Address: _____________________________ Address: _____________________________

   OGRN _______________________________ OGRN ________________________________

   TIN ________________________________ TIN ________________________________

   Checkpoint ________________________________ Checkpoint ________________________________

   Account ________________________________ Account ________________________________

   at ___________________________________ at ___________________________________

   C/s ________________________________ C/s ________________________________

   BIC ________________________________ BIC ________________________________

   OKPO _______________________________ OKPO ________________________________

   ______________ (___________________) ______________ (___________________)

Each organization operates under conditions of severe resource constraints, both monetary and material.

However, not all business entities find a way out of the situation in bank loans, because this is quite expensive due to high interest rates and takes a long time due to the provision of a huge number of documents to the credit structure confirming the solvency of the enterprise.

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.

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:

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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.

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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.

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; ensuring debt payment 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, then 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 (), but this is only possible if the interests of other persons who are associated with the lender’s property are not greatly prejudiced.

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 stated that the decision to forgive a debt cannot be considered a donation, since it most often carries only the desire of the lender to repay the remaining part of the debt or other debts that the recipient of the loans has.

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.