Interest-free loans between “their”: to stand – to be afraid?
At first glance – not scary
Based on the provisions of paragraph 1 of Art. 50 and paragraph 1 of article 809 of the Civil Code of the Russian Federation in the general case, commercial organizations provide loans to other commercial organizations on a reimbursable basis. Moreover, according to paragraph 1 of Art. 421 of the Civil Code of the Russian Federation, citizens and legal entities are free to enter into an agreement. On this basis, the parties to the loan agreement are not limited in the right to establish in such an agreement any interest rate for the use of borrowed funds received in connection with the borrower’s business activities. Certain restrictions on the amount of interest under such an agreement can be caused only by compliance with other principles of civil law – reasonableness and fairness, the inadmissibility of abuse of law (clause 2 of article 6, article 10 of the Civil Code, paragraphs 9, 10 of the resolution of the Plenum of the Supreme Arbitration Court RF dated March 14, 2014 No. 16 “On the freedom of contract and its limits”).
The tax legislation also does not contain requirements for the establishment of certain interest rates in the loan agreement and a ban on the issuance of interest-free loans.
Paragraph 1 of Art. 269 of the Tax Code of the Russian Federation, it is established that for debt obligations of any kind, income (expense) is recognized as interest calculated on the basis of the actual rate, with the exception, in particular, of income (expense) on so-called controlled transactions. Transactions between interdependent persons are recognized as such, taking into account the features provided for in Art. 105.14 of the Tax Code of the Russian Federation.
According to paragraphs. 7 p. 4 Article 105.14 of the Tax Code of the Russian Federation, regardless of whether the transactions satisfy the conditions provided for in clauses 1-3 of Art. 105.14 of the Tax Code of the Russian Federation, domestic Russian transactions for the provision of interest-free loans, the income and (or) expenses of which are recognized in accordance with Chapter 25 of the Tax Code after January 1, 2017, are not recognized as controlled, regardless of the date of conclusion of the relevant agreement or additional agreement thereto (see Confirmation of this fact also in letters of the Ministry of Finance of Russia dated 05.02.2018 No. 03-12-11 / 1/6568, dated October 13, 2017 No. 03-12-11 / 1/67157, dated April 28, 2017 No. 03-12-11 / 1/26008, dated 04/27/2017 No. 03-12-11 / 1/25686, dated April 21, 2017 No. 03-12-11 / 1/24048, letter of the Federal Tax Service of Russia dated April 13, 2017 No. ED-4-13 / 6968 @ )
Thus, in the case of a transaction to provide (receive) an interest-free loan between Russian organizations, they do not have an obligation to determine income (expenses) taking into account the provisions of the third paragraph of paragraph 1 and paragraph 1.1 of Art. 269 of the Tax Code of the Russian Federation (that is, in fact, compare the rate applied for a debt obligation with the market one). The parties do not have obligations to pay income tax when making the transactions in question.
The borrower does not have the obligation to calculate the material benefit from the interest-free use of borrowed funds in order to calculate corporate income tax (similar to calculating the material benefit from such loans by individuals for calculating personal income tax), since the procedure for determining and evaluating it by chapter 25 of the Tax Code of the Russian Federation is not installed. The regulatory authorities adhere to a similar position (see, for example, letters of the Ministry of Finance of Russia dated 12/08/2017 No. 03-03-06 / 1/82108, dated March 24, 2017 No. 03-03-06 / 2/17311, dated March 23, 2017 No. 03-03-RZ / 16846, Federal Tax Service of Russia dated 02.15.2018 No. SD-4-3 / 3027 @).
Under the simplified taxation regime, all income and expenses are calculated on a cash basis (Article 346.17 of the Tax Code of the Russian Federation), that is, they must not only be accrued, but actually paid, and since no interest is paid or received on the interest-bearing loan agreement, what or such tax consequences do not formally entail such transactions. The amount of material benefits under interest-free loan agreements by taxpayers applying the simplified tax system is also not determined (see similar explanations in the letters of the Ministry of Finance of Russia dated 07.08.2015 No. 03-04-05 / 45762, dated 09.02.2015 N 03-03-06 / 1 / 5149, dated 08.27.2014 No. 03-11-11 / 42697, dated 07.24.2013 No. 03-11-06 / 2/29384).
At the same time, the operations in question may entail tax risks for other, not so obvious reasons.
On August 19, 2017, a new article 54.1 of the Tax Code of the Russian Federation “Limits on the exercise of rights to calculate the tax base and (or) the amount of tax, duty, insurance premiums” was introduced. Paragraph 1 of Art. 54.1 of the Tax Code of the Russian Federation a ban has been established on a taxpayer to reduce the tax base and (or) the amount of tax payable as a result of distortion of information on facts of economic life (the totality of such facts), on objects of taxation to be reflected in tax and (or) accounting or tax reporting of a taxpayer .
As reported in the letter of the Federal Tax Service of Russia dated 10.31.2017 N ED-4-9 / 22123 @ containing recommendations on the application of the provisions of Article 54.1 of the Tax Code (brought to the lower tax authorities), this article is aimed at preventing the use of “aggressive” tax optimization mechanisms. When circumstances are established that indicate that the main purpose of concluding a transaction (operation) by the taxpayer was not to obtain the results of business activities, but to obtain tax savings, the tax authorities must prove that such a transaction (operation)