The person who has acquired the right of claim under the assignment agreement is a tax agent or not

Assignment of claims between individuals is not always subject to personal income tax

When a creditor (assignor) gratuitously assigns the rights of claim to a new creditor under a loan agreement, the individual assignor does not generate income subject to personal income tax.
This conclusion is contained in the letter of the Department of Tax and Customs Policy of the Ministry of Finance of Russia dated July 10, 2021 No. 03-04-06/47916 “On the calculation of personal income tax when an individual cedes the rights of claim under a loan agreement to an organization to another individual.” At the same time, an individual – a new creditor – receives income subject to personal income tax when the debtor organization repays the debt under the loan agreement, including the debt to pay interest on the loan. The tax must be calculated, withheld, and transferred to the budget by an organization recognized as a tax agent for personal income tax (clause 1 of Article 226 of the Tax Code). Financiers noted that income received from the gratuitous assignment of claims under a loan agreement made between individuals is exempt from personal income tax on the basis of clause 18.1 of Art. 217 Tax Code of the Russian Federation. Let us recall that, according to this norm, income in cash or in kind received by an individual as a gift is exempt from personal income tax.

Does a personal income tax taxpayer have the right to reduce income from the sale of property for expenses such as finishing work, installation of gas and plumbing equipment, as well as the cost of paying for the services of a realtor and notary? Find out from the material “Reducing, for personal income tax purposes, income from the sale of property by the amount of expenses associated with the acquisition of this property” in the “Encyclopedia of Solutions. Taxes and contributions" Internet version of the GARANT system. Get full access for 3 days for free!

The department indicated that the right of claim under a loan agreement received through a gratuitous assignment will be recognized as a gift if certain conditions are met (clause 3 of Article 576 of the Civil Code). For example, the assignment of a claim based on a transaction concluded in simple written or notarial form must be made in appropriate written form (clause 1 of Article 389 of the Civil Code of the Russian Federation).

However, as a general rule, when the assignor (creditor) assigns the rights of claim to another person (assignee), the individual assignor receives income in the amount of funds received from the assignee, subject to personal income tax, if such an operation was carried out on a reimbursable basis.

Comments and opinions

It would seem a rather trivial question: who will be the tax agent when paying income to an individual? Whoever pays will be the one who pays. Here is the Ministry of Finance of Russia in letter dated November 12, 2018 No. 03-04-06/81186

thinks so.

But in fact, the problem is much, much deeper. And officials know this very well. But contrary to their own “solemn oath” in letters from the Federal Tax Service of Russia dated November 26, 2013 No. GD-4-3/21097 and the Ministry of Finance of Russia dated November 7, 2013 No. 03-01-13/01/47571, they stubbornly refuse to comply with the decisions of not only the Armed Forces of the Russian Federation, but even the Constitutional Court of the Russian Federation!

So, what's the matter? Let us assume that a citizen has acquired from a creditor company its right of claim against the debtor under a loan agreement. (To simplify the example, we will consider the loan interest-free). Then the citizen received a loan amount from the debtor in the amount of, say, 100,000 rubles.

How does the Ministry of Finance view this situation?

In accordance with paragraph 1 of Art. 210 of the Tax Code of the Russian Federation, when determining the tax base, all income of the taxpayer received by him, both in cash and in kind, or the right to dispose of which he has acquired, as well as income in the form of material benefits, determined in accordance with Art. 212 of the Tax Code of the Russian Federation. At the same time, according to Art. 41 of the Tax Code of the Russian Federation, income is recognized as an economic benefit in cash or in kind, taken into account if it is possible to evaluate it and to the extent that such benefit can be assessed, and determined for the purposes of paying personal income tax in accordance with Chapter 23 of the Tax Code of the Russian Federation.

When the creditor assigns the rights of claim to another person, the income of the individual - the new creditor arises when the debtor repays the debt under the loan agreement, including the debt to pay interest on the loan. Tax on income paid by the debtor to an individual - a new creditor - is calculated and paid by the said debtor, recognized on the basis of clause 1 of Art. 226 of the Tax Code of the Russian Federation as a tax agent.

When receiving income in cash, the date of actual receipt of income is determined in accordance with paragraphs. 1 clause 1 art. 223 of the Tax Code of the Russian Federation as the day of payment of income.

At the same time, the situation, according to the Russian Ministry of Finance, looks like this. A citizen receives 100,000 rubles and must pay 13,000 rubles in personal income tax. What if he paid the original creditor 90,000 rubles for this claim? It turns out that he also received a loss in the amount of 3,000 rubles (100,000 – 13,000 – 90,000)?! But how can that be! After all, a citizen’s economic benefit is only 10,000 rubles (100,000 – 90,000).

“Dura lex sed lex,” the officials answer. Accounting for expenses incurred by the taxpayer when assigning rights of claim is provided for in Chapter. 23 of the Tax Code of the Russian Federation only in paragraphs. 2 p. 2 art. 220 of the Tax Code of the Russian Federation in relation to agreements for participation in shared construction. The possibility for individuals to take into account when determining the tax base of expenses for a transaction of assignment of the right of claim under other agreements in Art. Art. 218 - 220 of the Tax Code of the Russian Federation is not provided for. (See, for example, letter of the Ministry of Finance of Russia dated March 24, 2016 No. 03-04-05/16489).

Insurance of the developer's liability and personal income tax for insurance compensation paid to the shareholder

The risk of shareholders not receiving their apartments on time due to the developer’s failure to fulfill its construction functions is subject to insurance based on changes made to the legislation on shared-equity construction by Law No. 294-FZ of December 30, 2012 .

This law regulates the civil liability insurance of developers by authorized insurance companies with special requirements for their capital and reliability.

Payments usually occur if the court declares the developer bankrupt or in other situations when it is impossible to actually execute the court decision to collect debt from the developer.

Insurance compensation, as a rule, is equal to the cost of the apartment according to the DDU, taking into account the insurance of additional risks, including the risk of delay in delivery of the apartment (i.e. the risk of that same penalty under 214-FZ ).

Also, the amounts may be less if they are calculated based on the total area of ​​the apartment and the average price of one square meter in a given region, established by the Ministry of Construction and Housing and Communal Services of the Russian Federation. The average price set by the Ministry is lower than real market prices.

The developer must enter into an insurance contract and pay the insurance premium before registering DDU agreements with Rosreestr. Since July 2015, with each package of documents for registration, the developer’s lawyers submit a document confirming the completed insurance. Delays and installment plans in this regard are prohibited by law.

If the shareholder receives an insurance payment for the risks of non-completion of the construction of a real estate property or delay in its construction, a natural question arises about the payment of personal income tax.

As in the case of payments from the developer, the tax on payments of fines and penalties by the insurance company must be paid by the shareholders. While taking tax on income for compensation for the cost of an apartment, moral damages, legal expenses and direct losses (under Article 15 of the Civil Code of the Russian Federation ) is a violation, because it cannot be considered income for tax purposes.

On the procedure for submitting personal income tax declarations via the Internet. Read step-by-step instructions in our next material on our portal.

Since the judicial practice of compensation by insurance companies for losses of shareholders for developers and their taxation with personal income tax is not yet sufficient, the courts may apply a similar practice of insuring the civil liability of a driver under MTPL contracts.

You can also fill out 3-NDFL, relevant in 2021, or use a special program of the Federal Tax Service

rnThis
may be useful:

• Forms 3-NDFL and programs for filling out the Tax Return for personal income tax
• Article 220 of the Tax Code of the Russian Federation: personal income tax deductions for the acquisition and sale of real estate
• The tax office does not see payments for contributions: what to do?
• Example of filling out 3-NDFL for 2015 to reimburse personal income tax on a mortgage loan (Excel)
• Foreign currency mortgages and loans: material benefits from saving on interest and paying personal income tax

Assignment of the right of claim under an assignment agreement

Based on the assignment agreement, one of the parties (assignor) transfers to the second party (assignee) the right to claim the debt. The assignment agreement can be drawn up taking into account the following features:

1. Paid/free transfer of debt . The creditor may transfer the right to collect debt from the debtor for a fee or on a free basis. In general, an assignment agreement is essentially an agreement for the “purchase and sale of debt” for a fixed price established by the agreement. In rare cases, the right to collect a debt is transferred to a new creditor without payment; in this case, it is recognized as a gift on the basis of Art. 382-386, 388-389 Civil Code of the Russian Federation.
2. Tripartite/bilateral agreement. According to the norms of the Civil Code of the Russian Federation, an assignment agreement can be concluded either in a bilateral form (between creditors) or in the form of a tripartite agreement (with the participation of the debtor). Moreover, according to 385 of the Civil Code, a notification to the debtor about the transfer of the right to claim a debt can also be issued in the form of a separate written notice.

Based on para. 2 p. 1 art. 385 of the Labor Code of the Russian Federation, the debtor may not comply with the demands of the new creditor, provided that the latter has not provided documents confirming the assignment of the right of claim.

If the assignment agreement is signed by three parties (assignor, assignee, debtor), then such an agreement serves as confirmation for the debtor of the right to claim the debt by the new creditor. In this case, the assignee does not need to provide any additional documents.

Personal income tax upon assignment of the right of claim

Personal income tax upon assignment of the right of claim

In general, the amount of payment transferred by the assignee to the assignor as payment under the agreement is recognized as an object of taxation in accordance with the Tax Code of the Russian Federation.

In cases where the transfer of the right of claim is made between organizations, the income of the assignor is subject to income tax. If income is paid in favor of the assignor-individual, then such income is recognized as subject to personal income tax.

Payment of personal income tax by the assignor

According to the provisions of Art. 209 of the Labor Code of the Russian Federation, the object of personal income tax taxation is the income of individuals received from sources in the territory of the Russian Federation and abroad.

Income under an assignment agreement is recognized as income of an individual in the general manner. Thus, the object of personal income tax taxation arises in cases where the assignor is an individual, regardless of the legal status of the other parties to the transaction.

Calculation of the amount of personal income tax and payment of tax to the budget is the responsibility of the individual recipient of the income. When calculating personal income tax on the amount of income received from the assignment of a claim, a standard rate of 13% is applied.

If the assignor individual transferred the right to claim the debt to a new creditor (legal entity or individual) on a free-of-charge basis, that is, the assignment agreement does not provide for the receipt of income by the assignor, then in this case personal income tax is not charged, since there is no tax base.

Personal income tax on the income of the assignee

Responsibilities for calculating personal income tax upon assignment of the right of claim may also arise in the case where the new creditor (assignee) is an individual. A transaction subject to taxation is the transfer by the debtor of payment to repay the debt, as well as the amount of accrued interest.

Personal income tax when paying a debt in favor of an individual assignee is accrued regardless of whether the payer is an individual or a legal entity. It also does not matter whether the payer paid off the debt in full or transferred a partial payment to pay off the debt.

Upon receipt of payment from the debtor, the assignee-individual calculates tax at a rate of 13% of the amount of actual receipt.

Personal income tax under assignment agreement

Dear Marina! In addition: the Ministry of Finance of the Russian Federation issues certain letters, which are not regulatory legal acts, sometimes based only on the interests of the budget. In your question, what is important is the agreement on the assignment of rights of claim and how much the individual (General Director) paid to the legal entity (LLC) for such an assignment. What you received from the Debtor, according to the Russian Ministry of Finance, is all your income - please pay the tax (there are no expenses and no expenses).

We recommend reading: Living in a Zone with Preferential Economic Status

Under the assignment agreement, the individual and at the same time the General Director of the debtor (Assignee) were assigned the right to claim the debt under the loan agreement (principal debt and accrued interest) between legal entities (Assignor-Company Founder of the Debtor’s company) and (Debtor) for an amount less than the amount of the debt under loan agreement. The Assignee acquired the right of claim from the Assignor, but there has been no payment from the Assignee yet. After which the Debtor pays the debt to the Assignee (at the same time to its General Director). What amount will be considered profit for an individual (Assignee) and will it be subject to personal income tax at the rate of 13%? Who must pay and declare personal income tax (company - Debtor, as a tax agent) or Assignee). Should the assignee file a 3-NDFL declaration for himself?

On the calculation of personal income tax when an individual cedes the right to claim a debt under a loan agreement to a third party

Question: I ask you to provide clarification on the issue of calculation and payment of personal income tax by an individual under a transaction of assignment of rights of claim (assignment).

I, an individual, provided a loan to a legal entity. Without waiting for repayment, the right to claim the debt under a loan agreement with a legal entity was assigned by me to another legal entity.

Please provide clarification on the legality of the following approach when determining the tax base for personal income tax when receiving income under an assignment agreement: according to Article 382 of the Civil Code of the Russian Federation, the right (claim) belonging to the creditor on the basis of an obligation can be transferred by him to another person under a transaction (assignment of the claim) or transfer to another person on the basis of law.

The assignment of the right of claim represents a change in the person (party) in the obligation, but does not change the subject of the obligation.

In accordance with Article 210 of the Tax Code of the Russian Federation, when determining the tax base, all income of the taxpayer received by him both in cash and in kind or the right to dispose of which he has acquired, as well as income in the form of material benefits, are taken into account.

Article 41 of the Tax Code of the Russian Federation stipulates that income is recognized as an economic benefit in monetary or in-kind form, taken into account if it is possible to assess it and to the extent that such benefit can be assessed, and determined for the purposes of calculating personal income tax in accordance with the chapters “Tax” on the income of individuals”, “Organizational income tax” of the Code.

In connection with the above, I believe that the tax base for calculating personal income tax is the amount of income received by an individual under an agreement for the assignment of the right to claim a debt, reduced by the amount of actually incurred and documented expenses for payments made as part of the provision of a loan under the agreement.

Please clarify whether in this case the correct approach to forming the tax base for the income tax of an individual received under an agreement of assignment of the right to claim a debt.

Ministry of Finance of the Russian Federation DEPARTMENT OF TAX AND CUSTOMS TARIFF POLICY LETTER dated June 10, 2014 N 03-04-05/27970 [On the calculation of personal income tax upon assignment of the right of claim under a loan agreement to a third party]

The Department of Tax and Customs Tariff Policy considered the appeal on the issue of calculating personal income tax when assigning the right of claim under a loan agreement to a third party and, in accordance with Article 34_2 of the Tax Code of the Russian Federation (hereinafter referred to as the Code), explains the following.

In accordance with paragraphs 1 and 3 of Article 210 of the Code, when determining the tax base, all income of the taxpayer received by him both in cash and in kind, or the right to dispose of which he has acquired, as well as income in the form of material benefits, defined in in accordance with Article 212 of the Code, with the use in established cases of tax deductions provided for in Articles 218-221 of the Code.

At the same time, according to Article 41 of the Code, income is recognized as an economic benefit in monetary or in-kind form, taken into account if it is possible to evaluate it and to the extent that such benefit can be assessed, and determined for the purposes of paying personal income tax in accordance with the chapter “Tax” on the income of individuals" of the Code.

According to subparagraph 1 of paragraph 1 of Article 220 of the Code, accounting for expenses incurred by the taxpayer upon assignment of rights of claim is provided only in relation to agreements for participation in shared construction (investment agreements for shared construction or under other agreements related to shared construction).

Accounting for any expenses when making a transaction of assignment of the right of claim under a loan agreement in order to determine the tax base by an individual - creditor when he receives income in the form of cash. received from a new creditor is not provided for in Articles 218-221 of the Code.

The amount of money received by a taxpayer-creditor under a transaction of assignment of a claim from a new creditor is subject to taxation in the prescribed manner in full.

Resale of debt by an individual: how to pay personal income tax

Is it possible to take into account the costs of purchasing debt?

At the time of purchasing the organization's receivables, you do not have any income or any personal income tax obligations. But in the future, if you resell this debt or if the debtor organization whose debt you acquired pays it off, you will need to pay personal income tax on the income received under clause 1 of Art. 210 Tax Code of the Russian Federation.

The question is, is it possible to reduce the income from the sale of debt by the costs of purchasing it? At first glance, the answer is obvious: of course, yes! But it's not that simple.

Position 1. You cannot take into account the costs of purchasing debt.

For a long time, both the Ministry of Finance and the Federal Tax Service thought so. The arguments are as follows: the ability to take into account expenses when assigning rights of claim is expressly provided for by law, but only in relation to agreements for participation in shared construction or under other agreements related to it, sub. 1 clause 1 art. 220 Tax Code of the Russian Federation. That is, the legislator deliberately extended this procedure only to a specific category of transactions for the sale of property rights.

Possibility of receiving a deduction

Current laws provide for two ways in which the amount of tax can be reduced.

Ways to reduce tax:

1. Use of tax deduction. If an agreement for participation in shared construction is concluded, then the citizen has the right to receive a deduction, the amount of which does not exceed 1,000,000 rubles. To receive a deduction, you need to submit a completed application to the tax service, as well as attach the necessary documents.
2. Reducing the amount of profit from the sale of the right to an apartment by the amount of payment under the DDU to the developer. Thus, if the rights to a property are sold at the same price as when purchased, or at a lower price, then no tax is charged to the seller.

When paying tax, in accordance with the law, before April 31 of the year following the reporting year in which the sale by assignment was made, you must submit a tax return in writing in Form 3-NDFL.

The declaration is drawn up when taking into account a tax deduction or a decrease in the amount of income received by the taxpayer.

So, during the assignment of claims, the seller must pay tax, which is 13%.

If the shareholder decides to reduce the tax, then he has the right to use a deduction or reduction of income from the sale of his right to an apartment.

On the contrary, the buyer does not need to pay tax to the budget, because he is exempt from paying it according to the laws of the Russian Federation.

For the procedure for purchasing an apartment by assigning rights in a building under construction, see here.

Video: Tax on the sale of an apartment by assignment:

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