Draw up a loan agreement
To receive a loan, draw up an agreement. Its standard form can be found on the Internet and modified to suit you. If you are both the founder and the CEO at the same time, put two signatures on the agreement on behalf of each party. After completing the agreement, you can take money in cash from the organization’s cash desk by writing out a cash settlement, or transfer the loan amount to a bank card.
Agree in the contract:
- loan amount and period of use;
- repayment period: you can repay the debt in installments or return the entire amount at once;
- return procedure: you can deduct the debt from your salary, transfer money to the organization’s account or deposit it in cash at the cash desk;
- amount and terms of interest repayment: LLC can provide an interest-free loan or issue it with interest. Of course, I would like to use the money without additional costs, but with interest it’s not so simple - a loan that is too profitable will oblige you to pay personal income tax on the material benefit.
Interest-free loan agreement
Tyumen
October 19, 2023
LLC "Sever", represented by General Director Sergeev Boris Solomonovich, acting in accordance with the Charter of the company, hereinafter referred to as "Lender", on the one hand, and LLC "Sibir", represented by General Director Sergeev Boris Solomonovich, acting in accordance with the Charter of the company , hereinafter referred to as the “Borrower”, on the other hand, have entered into this agreement as follows:
The preamble of the agreement includes information related to data about the Counterparties. Thus, the preamble contains the following provisions:
- Firstly, the type of transaction being concluded (in our case, it is an interest-free loan agreement between legal entities).
- Secondly, the place, that is, the city in which the agreement is drawn up;
- Thirdly, the date of conclusion of the contract;
- Fourthly, the names of organizations, the surname and initials of their representatives;
- Fifthly, the roles of the participants in the transaction.
All of the above items together form the preamble.
Further, the agreement contains sections containing essential (without which the agreement does not enter into legal force) and additional (at the discretion of the parties) conditions. Below we will analyze each of the sections separately.
Personal income tax to the state or LLC interest
If you receive an interest-free loan or at an interest rate below 2/3 of the refinancing rate of the Central Bank of the Russian Federation (for example, at the beginning of 2022 - from 8.5%), then you have a material benefit. It is calculated on the last day of each month while you are using the loan. On material benefits you need to pay personal income tax at a rate of 35%.
Let's calculate the material benefits of an interest-free loan.
You take out an interest-free loan of 100,000 rubles from your LLC for the period from March 15 to April 30, 2022. You are going to return the entire amount at once. On the last day of each month of using the loan, you need to calculate the material benefit using the formula:
Loan amount × ⅔ rate of the Central Bank of the Russian Federation / 365 (366) days a year × number of days of using the loan this month.
Substitute numbers into the formula:
Material benefit as of March 31 = 100,000 × 8.5% * 0.66 / 365 days × 17 days of using the loan in March = 395.89 rubles. Personal income tax for material benefits - 130.64 × 35% = 138.56 rubles.
Material benefit as of April 30 = 100,000 × 8.5% * 0.66 / 365 days × 30 days of using the loan in April = 461.09 rubles. Personal income tax for material benefits - 250.55 rubles × 35% = 161.38 rubles.
So, for one and a half months of using the loan you will have to pay the state 299.94 rubles in personal income tax.
Taxes on income under individual entrepreneur loan agreements on the simplified tax system
The Ministry of Finance explained how an entrepreneur using the simplified tax system should take into account the interest received under a loan agreement, as well as what tax to tax on income from a bank deposit - personal income tax or simplified tax system.
According to the rules of the Tax Code, the income of a “simplified” person consists of income from sales and non-operating income. They are determined according to the rules of profit taxation in accordance with Articles 249 and 250 of the Tax Code.
As stated in paragraph 6 of Article 250 of the Tax Code, income in the form of interest received under loan or credit agreements is non-operating income. This means that individual entrepreneurs entering into loan agreements must take into account their “interest” income when calculating the “simplified” tax.
The Ministry of Finance has already expressed a similar opinion in a letter dated October 24, 2014 No. 03-11-06/2/53913. In addition, officials then noted that the current legislation does not specify from what sources loans can be issued by an individual entrepreneur: from the proceeds received from sales or from the businessman’s own money.
Read in the taker
How to take into account the income of individual entrepreneurs in the form of interest under loan agreements, check in the berator “STS in practice”
As for interest accrued on a bank deposit, financiers argue that on this income the individual entrepreneur must pay not the simplified tax system, but personal income tax.
The fact is that the taxation of income of bank depositors is regulated by Article 214.2 of Chapter 23 “Tax on Personal Income” of the Tax Code.
Thus, according to this norm, the tax base for ruble deposits is defined as the excess of the amount of interest accrued under the terms of the agreement with the bank over the amount of interest calculated based on the refinancing rate of the Bank of Russia, increased by five percentage points. For foreign currency deposits, the tax base is determined based on 9% per annum.
If income in the form of accrued interest exceeds the specified limits, then the excess amount is subject to personal income tax at a rate of 35% (clause 2 of Article 224 of the Tax Code of the Russian Federation).
This taxation procedure applies to interest income on bank deposits to all individuals, regardless of whether the depositor is registered as an individual entrepreneur or not. At the same time, indicating the status of an individual entrepreneur in a bank deposit agreement also does not matter.
Consequently, the income of an individual entrepreneur using the simplified tax system, which is received in the form of interest on a bank deposit, is subject to personal income tax.
Read in the taker
Read about the taxation of interest received on bank deposits of individual entrepreneurs in the “STS in practice” guide.
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Exception: home loan
You do not need to pay personal income tax if you spent the loan on buying a home and you have the right to a property deduction. To do this, after purchasing an apartment, you need to receive a notice of property deduction from the tax office according to your registration and hand it over to the organization. Before receiving a notice of deduction, the organization calculates and withholds personal income tax on material benefits, after which the withheld personal income tax can be returned.
