Maximum interest on a microloan based on the law. Loans and borrowings: “profitable” interest accounting Limitation on the accrual of interest on a loan

Chapter 25 of the Tax Code of the Russian Federation defines debt obligations - these are loans, commodity and commercial loans, loans, bank deposits, bank accounts or other borrowings, regardless of the method of their execution.

In accordance with Article 269 of the Tax Code of the Russian Federation, on debt obligations of any type, interest calculated based on the actual rate is recognized as income (expense).

Interest is calculated using the following formula:

% = Loan amount x Loan rate x (Number of days of use / 365 (366) days)

Example, an organization issued a loan on February 15, 2017 in the amount of 5,500.5 thousand rubles. for a period of 1 year. Interest rate – 11%. According to the terms of the agreement, the loan amount and accrued interest are paid at the end of the agreement.

In the 1st quarter of 2017, the organization will reflect in non-operating income the amount of 72,938.13 rubles, including:

as of 02/28/2017 - 21,549.90 rubles. (RUB 5,500,500 x 11% / 365 days x 13 days);

as of March 31, 2017 - RUB 51,388.23. (RUB 5,500,500 x 11% / 365 days x 31 days).

Interest received under loan agreements, credit agreements, and other debt obligations is recognized as non-operating income (expenses) by taxpayers (clause 6 of Article 250, subclause 2 of clause 1 of Article 265 of the Tax Code of the Russian Federation of the Tax Code of the Russian Federation).

When allocating interest on debt obligations, you must be guided by the provisions of Article 252 of the Tax Code of the Russian Federation, according to which all expenses of an organization must be related to its activities and aimed at generating income.

This issue is quite often considered by tax authorities when conducting audits. And since the official position of the Ministry of Finance of the Russian Federation is also quite ambiguous, this creates precedents for tax disputes.

Existing judicial practice on this issue is extensive and varied.

For example, a controversial issue is the recognition of interest on a loan aimed at paying dividends.

If the company takes into account these interests in expenses when calculating income tax, then it will be possible to be guided by the position set out in the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 23, 2013 N 3690/13 in case N A40-41244/12-99-222. At the same time, the taxpayer’s main argument will be that the payment of dividends is an activity aimed at generating income. When reading verbatim the provisions contained in Articles 265 and 269 of the Tax Code of the Russian Federation, there are no restrictions regarding the inclusion in expenses of interest on debt obligations associated with the payment of dividends.

However, there is also the opposite opinion - interest on a loan (loan) aimed at paying dividends cannot be taken into account in expenses. In this case, the financial department outlined its position in letters:

• Letter of the Ministry of Finance of Russia dated 05/06/2013 N 03-03-06/1/15774,

• Letter of the Ministry of Finance of Russia dated March 18, 2013 N 03-03-06/1/8152.

There is also a Resolution of the Federal Antimonopoly Service of the Volga Region dated March 14, 2012 in case No. A57-8020/2011 that supports this position (Decision of the Supreme Arbitration Court of the Russian Federation dated October 11, 2012 No. VAS-7971/12 refused to transfer this case to the Presidium of the Supreme Arbitration Court of the Russian Federation), it states , that raising borrowed funds to pay dividends in the presence of profits is inappropriate. The costs of paying interest on loans in the case under consideration do not meet the criterion of economic justification.

Thus, the taxpayer’s position on including interest on a loan aimed at paying dividends will have to be defended in court.

Let's consider the features of accounting for interest for the purpose of calculating income tax.

When accounting for interest on debt obligations to calculate income tax, you must be guided by Article 269 of the Tax Code of the Russian Federation.

From January 1, 2015, the legislator clause 17 of Art. 3, part 2 art. 6 of Federal Law No. 420-FZ of December 28, 2013, significantly changed the above article in terms of recognizing interest in expenses.

According to the new rules, interest on debt obligations is recognized based on the actual rate.

That is, for most companies, the “headache” that requires constant monitoring of interest rates for the purpose of calculating income tax has disappeared.

But, to any rule, there are exceptions.

And in this case, these are credits (loans) that can be recognized as controlled transactions.

If the transaction between the borrower and the lender satisfies the concept of “controlled”, then the expenses will include interest calculated based on the actual rate, but taking into account the provisions of Section. V.1 Tax Code of the Russian Federation.

The concept of controlled transactions in our legislation appeared relatively recently. This is a special norm of the legislator aimed at controlling transfer prices, that is, at the procedure for determining the cost of goods and services between interdependent parties.

The main purpose of this control is to prevent the withdrawal of funds from taxation in the Russian Federation, to exclude possible price manipulations between interdependent persons of the same group of companies.

Let's remember what applies to controlled transactions. The definition of controlled transactions is contained in Art. 105.14 Tax Code of the Russian Federation.

The list of controlled transactions is quite extensive, so we will present only some of the conditions under which a transaction can be recognized as controlled.

Thus, if a loan transaction falls into the category of controlled loans, the taxpayer needs to check whether the rate applied to the debt obligation corresponds to the market rate. The verification is carried out using the methods enshrined in Art. 105.7 Tax Code of the Russian Federation.

That is, it compares the rate provided for in its contract (actual) with the values ​​​​established in clauses 1.2, 1.3 of Art. 269 ​​of the Tax Code of the Russian Federation. The size of such values ​​depends on the currency in which the debt obligation is issued.

If the actual rate falls within the range provided for by the Tax Code of the Russian Federation, the taxpayer has the right to include as expenses the entire amount of interest calculated at this rate. Otherwise, he must use the standardization method in accordance with Sec. V.1 of the Tax Code of the Russian Federation (clause 1.1 of Article 269 of the Tax Code of the Russian Federation).

Thus, starting from 2015, expenses on debt obligations are taken into account:

• for “regular” transactions are taken into account based on the actual rate,

• for transactions recognized as controlled, despite the fact that the interest rate is within the limits of the interval (above the minimum and below the maximum limits), - based on the actual rate, if it is less than the maximum value of the interval of limit values,

• for controlled transactions, if the rate goes beyond the established interval - based on the actual rate, but not higher than its market size.

In addition, the provisions of Article 269 of the Tax Code of the Russian Federation establish specifics when accounting for interest on debt obligations recognized as controlled debt.

Let's consider this situation in more detail.

On January 1, 2017, new provisions of the Tax Code of the Russian Federation came into force (Federal Law No. 25-FZ dated February 15, 2016 (hereinafter referred to as the Law).

Let's analyze the main amendments that the legislator made and what impact they will have if an organization has a controlled debt.

Firstly, The range of transactions falling under these rules has expanded. From this year, debt to individuals, and not just to a foreign organization, can be recognized as controlled. Also, if a foreign creditor does not participate in the capital of the borrowing organization, but is an interdependent person of a foreign entity directly or indirectly participating in the capital of the borrower, then the debt will be considered controlled. In essence, the legislator has defined an approach according to which debt to a foreign “sister” company is considered controlled.

Secondly, there is no discrepancy in determining the threshold for direct or indirect ownership of authorized capital for interdependent persons established in Article 105.1 of the Tax Code of the Russian Federation and Art. 269 ​​of the Tax Code of the Russian Federation (from 20% to 25% - this figure is determined by Article 105.1 of the Tax Code of the Russian Federation).

Very often in practice the question arises of how to determine the share of participation of a foreign company in a Russian one, but if with direct participation everything is more or less clear, then with indirect participation companies have difficulties.

Let's give a specific example.

Foreign company "A" issued a loan to the Russian company "Rosa". At the same time, the founders of the borrower company “Rosa” are LLC “Gladiolus” - a share in the authorized capital of 25%, LLC “Pion” - a share in the authorized capital of 75%.

In turn, foreign company “A” owns a 60% share of the Gladiolus Management Company and a 20% share in the Pion Management Company LLC.

Calculation: the share of indirect participation of Foreign Company “A” in the borrowing company will be 30 percent. (60% x 25% + 20% x 75%)

Conclusion: the debt of the borrower company "Rosa" to a foreign company will be recognized as controlled.

Third, Now, controlled debt is determined by the totality of loans. Previously the order was different. The Financial Department (letter dated January 27, 2015 N 03-03-06/1/2538) took the position and explained that the capitalization ratio is determined separately. Finally, the legislator settled this issue and resolved legal disputes on it. It is true that earlier some courts believed that when determining the capitalization ratio, the amount of outstanding controlled debt for all debt obligations to the same foreign organization in the aggregate should be taken into account (Resolution of the Federal Antimonopoly Service of the Central District dated October 25, 2012 N A09-3038/2011 (Determination of the Supreme Arbitration Court of the Russian Federation dated 02.20.2013 N VAS-17204/12 refused to transfer this case to the Presidium of the Supreme Arbitration Court of the Russian Federation, Arbitration Court of the East Siberian District in the Resolution dated 03.19.2015 N F02-711/2015 in case N A33-23100/2013)

So, this rule “simplified” the life of taxpayers.

But there is also a not-so-happy moment for taxpayers. So, now (the norm is established by paragraph 13 of Article 269 of the Tax Code of the Russian Federation), the court can recognize as controllable the outstanding debt of a taxpayer - a Russian organization for debt obligations not specified in paragraph 2 of this article, if it is established that the ultimate goal of payments on such debt obligations are payments to the organizations named in paragraphs. 1 and 2 paragraphs 2 art. 269 ​​of the Tax Code of the Russian Federation. That is, even if the loan was issued by an independent person, but based on the totality of circumstances it can be established that the final recipient of interest income is a company interdependent with the debtor, then the debt will be considered controlled.

Also, from 01.01.2017, in accordance with clause 7, outstanding debt under a debt obligation will not be recognized as a controlled debt for a Russian organization if the calculation and withholding of the amount of tax on interest income by a foreign organization paid under such a debt obligation is not carried out by a tax agent in accordance with pp. 8 paragraph 2 art. 310 Tax Code of the Russian Federation.

Fifthly, there is a direct ban on recalculating interest on controlled debt. Now, if the capitalization ratio changes in a subsequent reporting period or based on the results of the tax period compared to previous reporting periods, the maximum amount of expenses will not be recalculated. (clause 4 of article 269 of the Tax Code of the Russian Federation). The financial department and the Supreme Arbitration Court of the Russian Federation followed a similar approach.

As for the calculation of maximum interest rates on controlled debt, there have been no fundamental changes. Federal Law No. 25-FZ introduced only some clarifications to the tax rules (in particular, the numbering of paragraphs of Article 269 of the Tax Code of the Russian Federation was changed: in 2016 it was paragraphs 2 - 4, in 2017 - paragraphs 3 - 6).

They will continue to be applied in cases where the amount of the taxpayer’s controlled debt is more than 3 times (for banks and organizations engaged in leasing activities - more than 12.5 times) at the last date of the reporting (tax) period exceeds the equity capital.

A microloan is a profitable deal both for the microfinance organization itself and for its client. The borrower receives the necessary funds here and now, and the microfinance organization receives high interest income for the use of funds, which reaches 4% per day.

The borrower is not always able to pay such high interest and a debt arises. As soon as delays occur, fines are imposed. If at this stage the debtor cannot pay, the microfinance organization engages a collection agency.

The profit of an MFO is interest that puts psychological pressure on a person. 4% per day - at first glance, this is a trifle, but in terms of a month of using the loan, you get a round amount of compensation. But there are people who are unable to repay a microloan for a whole year.

In European civilized countries, the system of issuing small loans is also widespread, but there are no extortionate interest rates, there is no practice of forcefully demanding the return of a previously taken out microloan.

In Russia, due to a relic of the 90s of the twentieth century, microfinance is a very sore subject, which is discussed in our state and at the highest level.

In order to stop extortion and unlawful behavior on the part of collectors, the President of the Russian Federation has recently adopted a number of laws concerning changes in the microcredit and banking sector and collection agencies. The activity has not yet been completely banned, but monitoring of their behavior has been tightened. Now collectors cannot insist on a conversation with the debtor if he does not want it. All he needs to do is notify the collection agency in writing of the refusal.

The possible number of calls and visits to the debtor has been significantly reduced.

Other bills relate directly to the microfinance market. Only an organization that officially has microcredit status has the right to issue microloans. MFOs were usually born at banking institutions, but some companies were involved in issuing loans underground. The Russian government decided to eradicate this.

Another law that caused a storm of indignation in microfinance organizations and eased the fate of some borrowers concerns the calculation of the final debt.

On January 1, 2017, the articles of the Federal Law “On Microfinance Activities and Microfinance Organizations” came into force. They disclose provisions that prohibit unreasonably high interest rates on microloans. The law does not specifically talk about the maximum interest rate on microloans; it establishes the total possible amount of funds to be returned to the microfinance organization.

The bill received a wide response, because it significantly oppressed those who are engaged. But the authorities took care first of all of the citizens who live on loans and credits and do not know where to go.

Until recently, the interest rate for using a loan for a year would have been 700% - this is a large amount of overpayment. But this was the income of microfinance companies. They issued loans without checking the person’s solvency, and then began to intimidate them with collectors, police, courts, bailiffs, etc. Due to the poor legal literacy of the Russian population, this brought good profits.

Today the bill regulates the procedure for collecting funds from debtors:

1. a three-fold limitation on interest - this means that the maximum amount of overpayment is equal to a factor of 3. In other words, a person took out a microloan in the amount of 5 thousand rubles. Even if he has not paid them for two years, then the court, according to the new law that has already entered into force, will be obliged to recognize his debt in the amount of a maximum of 20 thousand rubles. 15 thousand rubles in this case is three times the percentage, and 5 thousand rubles is the main body of the loan.
2. stopping the accrual of overpayments as soon as it reaches twice the loan amount - previously microfinance organizations charged interest not only on the loan body, but also on the accumulated debt. Currently, the maximum interest rate on a microloan by law is twice the amount of the microloan. And even though other conditions are specified in the contract, in court the microfinance organization has the right to demand only double the interest rate.

Both scenarios are being considered by the court.

In this article you can get acquainted with very useful information regarding what level of regulation of interest on loans and borrowings is provided for firms/companies/organizations for 2017.

How is interest on loans calculated in 2017?

Since 2016 the rationing of interest expenses on debt obligations for tax purposes was abolished. As for the interest on the loan, which was accepted for taxation in 2017, they must be taken into account in expenses, based on the actual level of the rate. The same rule is usually used in rationing income. However, as with every rule, there is also an exception, which the experts described below.

So, for those debt obligations that arose during the implementation of controlled transactions, interest calculated from the actual level of the rate, taking into account the provisions of Section V.1 of the Tax Code regarding controlled transactions, will be recognized as expense/income (this exception applies when carrying out transactions between persons who are related ). An exception is those cases in which one of the parties to a controlled transaction is a bank. In this situation, the taxpayer has the following rights:

Recognition as income of interest calculated based on the level of the actual rate, if it is higher than the minimum value of the established interval of limit indicators.

Recognition of interest expenses calculated based on the level of the actual rate, if it is less than the maximum indicator of the established interval of limit values.

In this case, for example, for debt obligations (DOs) in ruble currency, the above-mentioned interval is 75-180% of the refinancing rate of the Bank of Russia. For DOs in euro currency, the interval will be calculated from the European Interbank Offered Rate in euros, which will be increased by 4 percentage points, to the EURIBOR rate in euros, which will be increased by 7 percentage points.

Experts emphasize that the normalization of interest according to the above rules is valid if not only one party to the transaction is a bank, but also the transaction must necessarily be recognized as controlled. To determine whether a particular transaction is controlled or not, you need to look at Article No. 105.14 of the Tax Code of the Russian Federation.

Rationing of interest in 2017 (example)

Organization "Olympus" 02/11/2017 a loan was received in the amount of 1 million rubles. for a period of one year at 15% per annum. It is known that interest payments are made every month (on the last day of the month). It is proposed to clearly demonstrate how interest should be taken into account correctly in the first quarter.

So, in the first quarter of 2017. The organization recognized expenses in the form of interest twice:

02/28/2017 in the amount of 6986.3 rubles. ((RUB 1 million X 15% X 17 days) / 365 days);

03/31/2017 in the amount of 12739.73 rubles. ((RUB 1 million X 15% X 31 days) / 365 days).

Determining the amount of interest on a loan, provided that the rate was not specified in the agreement

So, the loan agreement does not provide for an interest rate - what to do? In such a situation, interest must be calculated based on the refinancing rate that is valid on the day the funds are returned. So, if an agreement was concluded according to the example given above, it is necessary to demand from the borrower who repaid the money in 2017 interest based on the refinancing rate (it is equal to the key rate). Or, conversely, you will need to pay interest at a given rate if a particular company is the borrower.

Experts note that the loan agreement can also be interest-free. If the lender decides not to charge interest, this point must be clearly stated in the agreement. Otherwise, the debtor will be charged the appropriate interest.

Is it possible to forgive interest on a loan agreement?

It is no secret that the loan agreement provides for the payment of interest in full. But a lender working on the simplified tax system has every right to allow the borrower not to pay interest, subject to early repayment of the loan.

So, what is the correct way to include uncollected amounts in income under the simplified tax system? It's very simple - you don't need to do this at all. This can be explained by the fact that the “simplified” ones keep records of receipts using the cash method, that is, immediately at the moment when the funds are credited to the account or cash desk.

Issues discussed in the material:

The interest rate specified in the loan agreement is one of the most significant terms of the loan; it is on the basis of this figure that the borrower decides to borrow money from the bank or not. In most cases, the bank, after studying the borrower’s package of documents and conducting credit scoring in one form or another, sets the interest rate, including depending on the lending conditions stipulated in the agreement between the parties to the agreement (bank and individual). In this article we will take a closer look at what is the maximum interest rate on a loan that can be set by a credit institution when applying for a consumer loan (from a bank) and when concluding a microloan agreement at an MFO. The procedure for drawing up a loan agreement and assigning interest on a loan is regulated by a number of legislative acts, in particular this is Part 1 of Art. 29, part 2 art. 30 of the Federal Law of December 2, 1990 N 395-1 “On Banks and Banking Activities”, Art. 819 of the Civil Code of the Russian Federation and clause 4, part 9, art. 5 of the Federal Law of December 21, 2013 N 353-FZ “On consumer credit (loan)”:

Interest rates on loans and (or) the procedure for determining them, including determining the interest rate on a loan depending on changes in the conditions provided for in the loan agreement, interest rates on deposits and commission fees on transactions are established by the credit institution by agreement with clients, unless otherwise provided by federal law.

Let's take a closer look at the restrictions regarding the interest rate under a consumer loan agreement. Our material applies equally to interest rates on credit agreements for both non-purpose purposes and consumer credit agreements.

Interest rate on a consumer loan at a bank

If we refer to Part 1 of Art. 9 of Law No. 353-FZ “On Consumer Credit (Loan)”, it stipulates that the determination of the interest rate under a consumer loan agreement is carried out by the bank using one of the rates:

• Fixed rate;
• Variable This occurs depending on changes in the variable value specified in the loan agreement.

Banks, in most cases, under a loan agreement concluded with a borrower who is an individual, do not have the right to independently reduce the term of the agreement, change the procedure for determining interest on the loan and their amount. In the case of consumer lending, the bank can unilaterally only reduce the interest rate on the loan (if we are talking about structuring the debt of an individual, for example) in accordance with Part 4 of Article 29 of Law No. 395-1; Part 16 of Article 5 of Law No. 353-FZ.

Some banks include in the loan agreement a requirement to take out life and health insurance for the borrower, or insurance of property that serves as collateral for the loan, while the agreement may stipulate that the lender has the right to decide to increase the interest rate on the loan provided, including if the consumer fails to fulfill his insurance obligations for more than 30 calendar days.

However, the amount of increase in the interest rate on an already issued loan in the event of a subsequent one is also specified in the loan agreement and the maximum interest rate will be limited to the amount specified in the loan agreement when issuing the loan, in accordance with Part 11 of Article 7 of Law No. 353-FZ.

Maximum interest rate on loan

Talking about what is the maximum interest rate on a loan that can be set by a credit institution, Attention should be paid to the fact that at the legislative level there is a limitation on the total cost of a consumer loan (FCC), which has a direct impact on the interest rate on it.

By law, a bank cannot draw up a loan agreement in which the interest rate is more than 30% higher than the market average (calculated quarterly by the Bank of Russia). If some significant change in market conditions occurs in the country, the Central Bank may establish one or another period during which the limitation on the maximum rate on consumer loans will not be applied (Part 11, Article 6 of Law No. 353-FZ).

On a note! Once a quarter, the Bank of Russia calculates the average market value of the PSK as a weighted average of at least 100 of the largest banks of the Russian Federation for a certain category of loan or for at least one third of the total number of credit institutions that provide a certain category of loan (Part 10 of Art. 6 of Law No. 353-FZ).

The Bank of Russia publishes the average market value of the PSK once a quarter (according to Part 8 of Article 6 of Law No. 353-FZ). For example, for car loans that were concluded in the 2nd quarter of 2017 for the purchase of new vehicles (mileage from 0 to 1000 km), this average market interest rate is 15.768%, and the maximum value of the PSK is 21.024% per annum, provided that the car is in as collateral (Information from the Bank of Russia “On average market values ​​of the full cost of a consumer loan (loan)”).

Maximum interest rate on microloans in microfinance organizations

It’s worth noting right away that the maximum interest rate on microloans in microfinance organizations is very different from interest on loans from regular banks. from January 1, 2017, they can establish a maximum interest rate on short-term loans (up to a year) not exceeding 300%, that is, the overpayment on a microloan should not be three times more than the amount of this microloan. See paragraph 9, part 1, art. 12 of the Law of July 2, 2010 No. 151-FZ:

...to accrue interest to an individual borrower under a consumer loan agreement, the repayment period of the consumer loan for which does not exceed one year, with the exception of penalties (fines, penalties) and payments for services provided to the borrower for a fee, if the amount accrued under the agreement interest will reach three times the loan amount. The condition containing this prohibition must be indicated by the microfinance organization on the first page of the consumer loan agreement, the repayment period of the consumer loan for which does not exceed one year, before the table containing the individual terms of the consumer loan agreement;

This maximum amount of overpayment on a loan does not include costs for additional services and penalties/fines (Federal Law dated July 2, 2010 N 151-FZ “On microfinance activities and microfinance organizations”).

If we talk about consumer loan agreements that MFOs concluded in the second quarter of 2017, then the average market value of the FSC (the full cost of a consumer loan) for a microloan without collateral (with the exception of POS microloans), in the amount of up to 30,000 rubles and for a period of 30 days inclusive, is equal to 599.367% per annum. In this case, the maximum PSC is 799.156% per annum.