Goods received to repay the loan: how to account for them?

An LLC takes out an interest-free loan from an individual entrepreneur. These are interdependent persons. The interest-free loan agreement states that the loan can be repaid in cash and in other ways that do not contradict the legislation of the Russian Federation. In fact, the LLC gave the loan in tin products for the loan amount.

Is this operation considered an implementation?

According to Art. 807 of the Civil Code of the Russian Federation, under a loan agreement, one party (the lender) transfers into the ownership of the other party (borrower) money or other things determined by generic characteristics, and the borrower undertakes to return to the lender the same amount of money (loan amount) or an equal number of other things received by him of the same kind and quality.

Consequently, if an organization received money under a loan agreement, then it is the money, and not the goods, that should be returned to the lender.

If there is a need to repay the loan amount in goods, then you need to take into account the provisions of the Civil Code of the Russian Federation on obligations.

According to Art. 307 of the Civil Code of the Russian Federation, by virtue of an obligation, one person (debtor) is obliged to perform a certain action in favor of another person (creditor), such as: transfer property, perform work, provide a service, contribute to a joint activity, pay money, etc., or refrain from a certain action, and the creditor has the right to demand that the debtor fulfill his obligation.

Obligations arise from contracts and other transactions.

Obligations must be fulfilled properly in accordance with the terms of the obligation and the requirements of the law, other legal acts, and in the absence of such conditions and requirements - in accordance with customs or other usually imposed requirements (Article 309 of the Civil Code of the Russian Federation).

In your case, the return of funds (and not goods) (the borrower's obligation) under a cash loan agreement is a legal requirement.

The obligation is terminated by proper performance (Article 408 of the Civil Code of the Russian Federation).

By agreement of the parties, the obligation may be terminated by providing compensation - payment of funds or transfer of other property or replacement of the original obligation that existed between the parties with another obligation between the same persons (novation), unless otherwise established by law or follows from the essence of the relationship (Art. 409, 414 Civil Code of the Russian Federation).

With novation, the previous obligation arising from the loan agreement to repay the amount of money is terminated.

In return, a new obligation arises (in your case, for the transfer of goods).

With novation, a new contract is not concluded, but an agreement is drawn up on the novation of the obligation under the loan agreement into an obligation to transfer goods.

In a letter dated November 28, 2008 No. ШС-6-3/ [email protected], the Federal Tax Service of the Russian Federation explained that when concluding an agreement between the borrower and the lender on the repayment by the borrower of its obligations under the loan agreement in cash, by shipping goods to the lender (performing work , provision of services), funds received by the borrower in accordance with the loan agreement should be considered on the date of conclusion of the said agreement as an advance payment for the upcoming delivery of goods (work, services).

In accordance with Art. 39 of the Tax Code of the Russian Federation, the sale of goods, work or services by an organization or an individual entrepreneur is recognized, respectively, as the transfer on a paid basis (including the exchange of goods, work or services) of ownership of goods, the results of work performed by one person for another person, the provision of services for a fee by one person to another person, and in cases provided for by the Tax Code of the Russian Federation, the transfer of ownership of goods, the results of work performed by one person for another person, the provision of services by one person to another person - on a free basis.

In accordance with paragraph 1 of Art. 154 of the Tax Code of the Russian Federation, the tax base for VAT is determined based on the amount received by the borrower including VAT.

Therefore, the amount of the novation obligation (in the amount of the loan) is recognized on the date of entry into force of the novation agreement with the borrower organization (which has become the supplier) as an advance payment received from the lender for the upcoming delivery of goods.

P.p. 1 clause 1 art. 146 of the Tax Code of the Russian Federation establishes that the sale of goods, including the transfer of goods (results of work performed, provision of services) under an agreement on the provision of compensation or innovation, is subject to VAT taxation.

According to paragraph 1 of Art. 154 of the Tax Code of the Russian Federation, when a taxpayer receives payment or partial payment for upcoming supplies of goods (performance of work, provision of services), the tax base is determined based on the amount of payment received, including VAT.

If the taxpayer receives amounts of payment or partial payment for future deliveries of goods sold on the territory of the Russian Federation, the taxpayer is obliged to present to the buyer of these goods the amount of tax calculated in the manner established by clause 4 of Art. 164 of the Tax Code of the Russian Federation, that is, at the calculated rate (clause 1 of Article 168 of the Tax Code of the Russian Federation).

In accordance with paragraph 8 of Art. 171 and paragraph 6 of Art. 172 of the Tax Code of the Russian Federation, the amounts of VAT calculated by the taxpayer from the amounts of payment, partial payment received on account of upcoming deliveries of goods are subject to deduction from the date of their shipment.

In this regard, the amount of VAT calculated and paid by the seller from the amount of advance payment is taken for deduction upon the actual shipment of goods under the new contract.

For profit tax purposes, income in the form of funds or other property received under credit or loan agreements is not taken into account (clause 10, clause 1, article 251 of the Tax Code of the Russian Federation).

After signing the compensation agreement, the borrowed funds received are recognized as an advance (prepayment) and are not taken into account when determining the tax base (clause 1, clause 1, Article 251 of the Tax Code of the Russian Federation).

Revenue from the sale of goods under a novation agreement is recognized on the date of shipment (clause 3 of Article 271 of the Tax Code of the Russian Federation).

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Features of accounting when transferring real estate as compensation

They are related to the fact that the transfer of ownership of real estate is subject to state registration. 1 tbsp. 131, paragraph 1, art. 164, paragraph 2 of Art. 223 Civil Code of the Russian Federation. And the moment of sale will not be the date of acceptance and transfer of real estate, but the date of state registration of the transfer of ownership of the property. 1 tbsp. 39, paragraph 1, art. 249, paragraph 3 of Art. 271 Tax Code of the Russian Federation. But the Ministry of Finance believes that when calculating income tax, income from the sale of real estate should be recognized when you transferred it under the transfer and acceptance certificate and submitted documents for state registration. Letters from the Ministry of Finance of Russia dated April 28, 2010 No. 03-03-06/1/301, dated 15.10 .2009 No. 03-03-06/4/87, dated 09.10.2007 No. 03-03-06/1/653, dated 08.11.2006 No. 03-03-04/1/733. And according to tax authorities, income should be reflected already on the date of signing the acceptance certificate of the FAS PO Resolution No. A65-4591/2007 dated 06/05/2008; FAS ZSO dated 09/05/2007 No. F04-5962/2007 (37734-A45-40), and the courts sometimes support them Resolution of the FAS PO dated 09/22/2009 No. A65-20719/2008. Therefore, in order to avoid disputes, it is better to do so.

You also stop accruing depreciation on the transferred property after you sign the transfer and acceptance certificate with the participant. Since such an act indicates that you have transferred the property, which means you are no longer using it to generate income. 1 tbsp. 256 Tax Code of the Russian Federation.

VAT must be accrued on the date of state registration of the transfer of ownership of real estate. 1 clause 1 art. 146, paragraph 3 of Art. 167 Tax Code of the Russian Federation. However, the tax authorities again demand that tax be paid upon the transfer of real estate under the transfer and acceptance certificate of FAS PO Resolution No. A65-4591/2007 dated 06/05/2008; FAS ZSO dated October 17, 2007 No. F04-7265/2007(39332-A75-34). There is no need for you to argue, so it is better to pay VAT early (on the date of transfer of real estate), then the moment of sale for income tax purposes and for VAT purposes will coincide.

Please note that the provision of a plot of land as a compensation plot is not subject to VAT. 6 paragraph 2 art. 146 of the Tax Code of the Russian Federation. However, you still issue an invoice, making an op in it. 5 tbsp. 168 Tax Code of the Russian Federation.

In accounting, income from the sale of real estate must be recognized on the date of state registration. 12 PBU 9/99, clause 16 PBU 9/99. In tax accounting, if you follow the point of view of the regulatory authorities, you will take this income into account earlier. Because of the difference, you will have to reflect a deferred tax asset (which will be settled after registering the transfer of ownership) pp. 8, 11 PBU 18/02 “Accounting for corporate income tax calculations”, approved. By Order of the Ministry of Finance of Russia dated November 19, 2002 No. 114n, clause 14 PBU 18/02, clause 17 PBU 18/02. Therefore, it is easier in accounting to recognize income on the date of signing the acceptance certificate. 6 PBU 1/2008 “Accounting policy of the organization”, approved. By Order of the Ministry of Finance of Russia dated October 6, 2008 No. 106n.

Hocus pocus: loan repayment turned into delivery of goods

The loan can be issued in both rubles and foreign currency. However, repaying a loan to a non-resident founder in foreign currency can cause many problems for the chief accountant. A foreign currency loan must be repaid in rubles at the exchange rate of the Central Bank of the Russian Federation on the day of repayment. Interest is also expressed in foreign currency, but is accepted for accounting in rubles. If the founder issues a loan with interest, then their amount and payment procedure must be specified in the agreement.

If the amount of interest is not specified in the agreement, then it is considered “by default” to be equal to the refinancing rate of the Central Bank of the Russian Federation on the day the interest is paid. If the agreement does not specify the payment procedure, the borrower must pay them monthly throughout the entire term of the agreement.

In the case where the lender is both the founder and director of the borrower company, the agreement must be drawn up in the same way as with any other borrower.

Accounting

The debtor must keep records of the loan on the basis of PBU 15/01 “Accounting for Loans”, established by Order of the Ministry of Finance No. 60n dated August 2, 2001. Calculations will be recorded on accounts 66 and 67. Debt is taken into account in the valuation of acquired assets (clause 3 of PBU 15/01).

The resulting assets must be capitalized at a value determined using the same algorithm that is used when valuing similar objects. However, an accountant can make his job easier. For the posting price, you can take the amount specified in the agreement. If no amounts appear in the contract, you can take the cost stated in the invoice.

The transfer of ownership rights to objects is considered a sale on the basis of paragraph 1 of Article 39. The operation is considered an object of taxation. In particular, it is subject to VAT.

Often, with a commodity loan, the debtor receives one item and returns another item with similar characteristics. In this case, the real value of the transferred assets may differ from the real value of the returned items. The difference that arises is attributed either to income or to expenses, depending on its positive or negative value. Differences are accounted for on the basis of PBU 18/02, approved by Order of the Ministry of Finance No. 114n dated November 19, 2002.

The lender must also take into account the commodity loans provided. Accounting is carried out on the basis of PBU 19/02, approved by the Ministry of Finance No. 126n dated December 10, 2002. Paragraph 3 of this act states that a trade loan will be considered a financial investment. The amount must be recorded in account 58. The loan is assessed based on the actual value of the transferred assets. After classifying things as financial investments, the cost of the objects is compared with their cost during regular sale without VAT. The resulting difference is attributed either to income or expenses.

Repayment of the loan to the founder

In this case, the former lender becomes the buyer, and the former borrower becomes the seller. The cost of the transferred goods does not have to be specified in the agreement. The main thing is to indicate its name and quantity, otherwise the novation agreement will be considered not concluded. 3 tbsp. 455 Civil Code of the Russian Federation; clause 3 of the Information Letter of the Presidium of the Supreme Arbitration Court dated December 21, 2005 No. 103. Schematically, the innovation looks like this. Accounting with the lender-buyer Accounting with the borrower-seller Income tax (accrual method) 1.

Goods are accepted for accounting in the amount of the obligation that was terminated by novation.2. The purchase price of these goods can be taken into account in expenses. 2 tbsp. 254, paragraph 1, art. 257, paragraph 1, art. 268 of the Tax Code of the Russian Federation. Before signing the novation agreement, the amount of interest accrued at the end of each month and on the date of signing the novation agreement is included by the lender in non-operating income. 6 tbsp. 250, paragraph 6 of Art. MPZ, No. 2

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Differences between a loan and a loan

Russian legislation provides for two types of agreements between the parties – loan and credit.

One party to loan agreements is an organization that has received a special license from the Central Bank of the Russian Federation. The borrower always pays the lender interest for the use of funds.

According to the agreement, not money, but things are transferred to the other party. This is the main characteristic of such loans.

A commodity loan also has the following features:

the possibility of concluding a transaction without the participation of a bank;
the presence or absence of interest is agreed upon in advance by the parties to the agreement and is stated in the text of the agreement;
the parties, before signing the agreement, are aware of the penalties that they will need to pay for violating the clauses of the agreement;
the loan agreement specifies the characteristics of the goods being transferred;
the borrower is obliged to return the same asset or similar thing to the lender;
the agreement comes into force after material assets are transferred for temporary use to the borrower;
In a commodity loan agreement, it is prohibited to return equivalent funds to the lender instead of a similar product.

The contract specifies the generic characteristics of the goods:

volume;
quality;
range;
type of packaging.

The more detailed the transferred goods (thing) are described, the more opportunities the parties to the agreement have to disperse peacefully upon expiration of the agreement.

The loan was returned with goods, what should I do?

And without accusations of concealing the implementation either. MiLLaP 09/08/2009, 11:07 black magic session with exposure. To be honest, I don’t see any scheme-free options for avoiding VAT here, and the manipulation of the loan doesn’t even amount to a scheme.

So, tease the Federal Tax Service. So if the goal is only to avoid VAT, forget about these repayable loans, look for something else. about innovation, the question is clear... the whole idea is not to pay VAT... LLC for wholesale. Borrowed money sooner or later has to be returned to the borrower. Often the founder of a legal entity acts as a borrower. How to properly process a loan repayment to the founder? Is it necessary to draw up a new contract or not? What is important to consider when repaying a debt The founder can issue money for the needs of his company with or without interest. In any case, it is necessary to draw up and sign a loan agreement. Since one of the parties is a legal entity, then according to Art. 808 of the Civil Code of the Russian Federation, it must be concluded in writing. The loan is repaid within the period specified in the agreement with or without interest, as specified in the agreement.

Important! The loan agreement is considered concluded not from the moment it is signed, but from the moment the funds are transferred. The same applies to loan repayment - obligations under the agreement terminate when the borrower returns the money to the lender.

The signed agreement does not affect the interest taken into account in expenses. After signing the agreement, the former borrower does not have “profitable” obligations associated with the loan agreement, since neither the receipt of the loan nor its repayment is recognized as income/expenses. 10 p. 1 art. 251, paragraph 12 of Art. 270 of the Tax Code of the Russian Federation VAT 1. The money transferred under the loan agreement after the new obligation becomes an advance payment for the upcoming delivery.

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Agreement in e.

Therefore, depending on which taxation system the borrower uses, the following must be paid from the proceeds from sales:

VAT;
income tax
single tax in a “simplified” form.

Through the cash register According to clause 2 of the Bank of Russia Instructions dated October 7, 2013 No. 3073-U, cash from the cash register, which is sales proceeds for goods sold, services provided or work performed, can only be used in the following areas:

salary and other social benefits (sick leave or maternity leave);
payment of insurance compensation to individuals under insurance contracts with individuals;
issuing money to employees on account;
payment for goods, works or services.

As can be seen from this list, repayment of the loan to the founder from the proceeds is not provided for in this list.

Features of the agreement

Russian legislation quite clearly describes the difference between a loan agreement and a credit, as well as the features of some of their types. The commodity loan agreement includes parts relating not only to the lending of the transaction, but also to the purchase and sale.

Let's consider the main features of a commodity loan agreement:

it necessarily includes the right to transfer ownership of things from the seller to the buyer;
this type of agreement includes all parameters applicable to loans;
if the conditions are not met, the lender has the right to oblige the borrower to repay the remaining amount of the debt along with interest;
the possibility of an interest-free loan and conclusion between any persons.

A loan agreement can only be concluded by a bank or other organization that has the appropriate license from the Bank of Russia. A loan can be issued and received by absolutely any person.

Let's consider the most common options for commodity loan agreements:

between individuals, if organizations are not involved in the transaction;
between legal entities, the most common option when the parties to the transaction are two companies;
between an individual and a legal entity.

The commodity loan agreement must indicate the characteristics of the things being transferred, for example, the make, model and technical condition, and their monetary value must also be present.

Between individuals

The legislation of the Russian Federation does not impose any prohibitions on issuing and receiving loans of any kind to individuals. Such an agreement is concluded in writing and contains the passport data of both parties to the transaction.

Important! The imperfections of Russian legislation can create systematically certain problems for people who issue loans. Failure to register as an individual entrepreneur may be regarded by tax authorities as illegal entrepreneurship. In addition, such activities on a large scale may fall under Art. 172 of the Criminal Code of the Russian Federation.

Negative consequences can only be avoided by not increasing the scale of activity without registration to such volumes that it becomes possible to recognize that the lender is essentially engaged in banking services without a license.

Between legal entities

Trade loans and loans between legal entities are very popular. Thanks to them, companies receive a simple opportunity for additional business development without financial injections from founders or banks. Most often, a commodity loan is issued directly by the supplier, but an intermediary organization can also be involved.

You can download a sample commodity loan agreement between legal entities using this link.

If you have a bad credit history, read the article, microloans on a card in 5 minutes without checking your credit history. How to apply for a microloan is described here.

If the agreement was an interest-bearing agreement and the borrower violates the payment terms, the seller, who is a creditor, may demand the return of the goods and payment of interest. In this case, interest may be accrued until the expiration date of the loan agreement.

Between an individual and a legal entity

In some situations, organizations, for example, due to delays in delivery, are forced to apply for a commodity loan to individuals. This is not prohibited by law, since citizens and organizations are free to enter into contracts.

Companies often borrow goods from their founders. It is important to take into account that for the purposes of calculating VAT, repayment of a loan in goods will be considered their sale, therefore, you will have to pay taxes. On the other hand, an individual is not a VAT payer and the transfer of goods from the lender cannot be taken into account in tax deductions.

Cash transactions are exempt from VAT, so they are much simpler in terms of tax calculations.

The opposite situation is also possible, when the borrower is an individual who received a commodity loan from an organization. It is important to understand that this activity does not require a license only for small volumes, otherwise regulatory authorities may equate it with banking services.

Hocus Pocus: Loan repayment turned into goods delivery

Ovsyannikova A.

Tax and accounting consequences of innovation.

We have already written more than once about replacing obligations (novations). For example, how an obligation to pay for goods supplied can be transformed into an obligation to repay a loan. In this article, we propose to deal with the following situation: the borrower, instead of repaying the loan, supplies the lender with goods.

After signing the novation agreement, all obligations under the loan agreement cease. In this case, the former lender becomes the buyer, and the former borrower becomes the seller.

We warn the manager

If your lender company plans to terminate the borrower’s obligation by novation only to repay the “body” of the loan, then this condition must be specified in the novation agreement. Otherwise, after concluding the agreement, all obligations of the borrower will cease, including repayment of interest under the loan agreement.

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Note. The cost of the transferred goods does not have to be specified in the agreement. The main thing is to indicate its name and quantity, otherwise the novation agreement will be considered not concluded.

Schematically, the innovation looks like this.

Tax and accounting during innovation

Accounting with the lender-buyer

Accounting with the borrower-seller

Income tax (accrual method)

1. Goods are accepted for accounting in the amount of the obligation that was terminated by novation. 2. The purchase price of these goods can be taken into account in expenses. Note. Before signing the novation agreement, the lender includes the amount of interest accrued at the end of each month and on the date of signing the novation agreement as part of non-operating income. The signed agreement does not affect the interest recorded in income. After signing the novation agreement, there are no “profitable” obligations under the loan agreement, since the transfer of the loan and receipt of the returned money are not recognized as income/expense

1. On the date of transfer of goods, income arises in the amount of the obligation repaid by novation. 2. Income can be reduced by the purchase price of the goods transferred. Note. Interest accrued at the end of each month and on the date of signing the novation agreement is included by the borrower in non-operating expenses within the standard. The signed agreement does not affect the interest taken into account in expenses. After signing the agreement, the former borrower does not have any “profitable” obligations associated with the loan agreement, since neither the receipt of the loan nor its repayment is recognized as income/expense

VAT

1. The money transferred under the loan agreement after the new obligation becomes an advance payment for the upcoming delivery. But even if there is an advance invoice from the former borrower, it is impossible to accept VAT from the advance for deduction, since in fact there is no payment order for the transfer of the advance (with the corresponding purpose of payment) and a supply agreement providing for prepayment. 2. When the delivered goods are accepted for accounting, and there is also a “shipping” invoice from the seller, input VAT can be deducted. Note. After signing the novation agreement, the former lender does not have VAT obligations under the loan agreement, since the loan is not subject to VAT

1. After signing the novation agreement, you need to charge VAT and issue an advance invoice to the buyer (former lender) within 5 days (since the money under the loan agreement after novation is an advance). 2. Having shipped the goods, you need to charge VAT on the cost of the goods, issue a “shipping” invoice within 5 days, and accept the previously accrued advance VAT for deduction. Note. After signing the novation agreement, the former borrower does not have VAT obligations associated with the loan agreement. After all, the loan is not subject to VAT

Tax under simplified tax system

1. The goods received are considered paid for on the date of signing the novation agreement, and they must be taken into account in the amount of the obligation that was terminated by the novation. 2. The cost of goods can subsequently be taken into account as expenses. Note. Accrued interest for tax purposes is included in income on the date of signing the novation agreement. The transfer/repayment of a loan is not an income/expense when calculating tax under the simplified tax system, therefore, when signing a novation agreement, no tax obligations arise

1. To calculate tax under the simplified tax system, income from the sale of goods is recognized on the date of signing the novation agreement. 2. The purchase price of goods sold can be recognized as expenses if these goods are paid for. Note. Interest that accrued before signing the agreement is included for tax purposes, within the limits of the standard, as part of expenses on the date of signing the agreement. The transfer/repayment of a loan is not income/expense for tax purposes, which means that no tax obligations arise upon signing the agreement

Example. Accounting innovations

Condition

Solution

Accounting entries from the buyer (formerly the lender).

What does it mean to borrow goods?

Borrowed funds are often sought when it is necessary to purchase certain things. At the same time, many people forget that they can borrow not only money, but also various goods.

Banks rarely resort to trade loans, trying to record all transactions in monetary terms. Unlike loans, loans can be issued and taken by any legal entity or individual.

According to the law, the borrower must return completely similar goods to the lender. Moreover, all important characteristics must coincide, for example, size, color, and so on.

Often a commodity loan is issued between companies. Typically, the terms of such agreements are more favorable, since the lender is a party interested in the partner’s development, for example, an affiliated company.

The loan was returned with goods, what should I do?

For example, returning a loan to the founder with a car, which is the property of the borrower. Its approximate cost will pay off the debt to the lender. Cash As mentioned above, repayment of a loan to the lender in cash from the cash desk is not possible, according to clause 2 of the Bank of Russia Directives dated October 7, 2013 No. 3073-U. Even if the lender, when issuing a loan, deposited money in cash, according to these Instructions, the borrower must hand it over to the bank on the same day. Upon expiration of the loan term, he must withdraw money from the account, indicating the basis for “returning the loan to the founder,” and then issue it from the cash desk on the same basis, only according to RKO.NDFL. The lender must pay personal income tax only if he issues an interest-bearing loan . Income tax is paid only on interest on the loan, since the main debt is the founder’s money, and he receives his money back in due time.

Repayment of the loan to the founder

Clerk.Ru Accounting General Accounting Accounting and Taxation Repayment of a loan in goods and a loan in goods PDA View full version: Repayment of a loan in goods and a loan in goods Anonymous 02/03/2009, 13:07 Dear, please tell me, I’m completely confused. The founder leaves the LLC, he has a cash loan received from him, he wants to receive it in goods, is it possible? After this, he wants to open his own personal company and contribute a loan from the founder there in goods, so that the company will then repay him this loan in money.

The loan was returned with goods, what should I do?

The goods received are considered paid for on the date of signing the novation agreement, and they must be taken into account in the amount of the obligation that was terminated by the novation.2. The cost of goods can subsequently be taken into account in expenses.

23 clause 1 art. 346.16, paragraph 2 of Art. 346.17 of the Tax Code of the Russian Federation. Accrued interest for tax purposes is included in income on the date of signing the novation agreement. 1 tbsp. 346.15, paragraph 1 of Art. 346.17, paragraph 6 of Art. 250 of the Tax Code of the Russian Federation. The transfer/repayment of a loan is not income/expense when calculating tax under the simplified tax system, therefore, when signing an agreement on novation, no tax obligations arise. 1 clause 1.1 art. 346.15, subd. 10 p. 1 art. 251, art. 346.16 of the Tax Code of the Russian Federation 1. To calculate tax under the simplified tax system, income from the sale of goods is recognized on the date of signing the novation agreement. 1 tbsp. 346.17 Tax Code of the Russian Federation.2.

In this case, the parties must decide whether the transfer of “unequal” property will repay the loan obligation in full? Or will it “cover” the debt only partially (in terms of the value of the transferred property)? The fact is that if this point is not reflected in the compensation agreement, then by default it is considered that the obligation is terminated completely (clause 4 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 21, 2005 No. 102). Transferred the property? Add VAT! The transfer of property (whether goods, products or fixed assets) as compensation is recognized as a sale for VAT purposes.

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2013

Do you doubt your debtors? Create a reserve!, No. 21
Hocus Pocus: Loan repayment turned into delivery of goods, No. 19
Reserve for doubtful debts: counter creditor is not a hindrance, No. 13
The contract was terminated: we return the advance payment, No. 3
They decided not to return the mistakenly received advance: what about taxes, No. 3

This is interesting: An order to conduct an audit of compliance with antimonopoly legislation can be challenged in an arbitration court

The parties decided to update the obligation to repay the loan and pay interest on the obligation to supply goods. At that time, the amount of accrued interest was 3,000 rubles.

Grounds for reclassification of a loan agreement into a purchase and sale agreement by the court and tax authorities.

In such transactions, the item that the lender transfers and the item that the borrower undertakes to return are not the same. For example, if things defined by generic characteristics are transferred as a loan under an agreement, and the borrower returns the money.

As judicial practice shows, courts do not consider as a loan agreement agreements on the transfer of things on loan, defined by generic characteristics, with the condition of repaying the loan in cash.

Practical example: the court qualified the disputed contract as a supply contract with a condition for deferred payment

LLC "G." (lender) and LLC "A." (borrower) entered into a loan agreement, under the terms of which the lender transfers the goods to the borrower as a loan - sunflower seeds, and the borrower undertakes to return the funds in installments.

The borrower did not pay for the goods received. In connection with this, the lender filed a claim with the arbitration court.

The court indicated that in terms of subject matter and purposes (paid transfer of goods by one party to the other party), the agreement of the parties corresponds to the supply contract (Article 506 of the Civil Code of the Russian Federation).

At the same time, the rules on loans should be applied to a commercial loan, which is an element of the legal structure of the disputed agreement (Article 823 of the Civil Code of the Russian Federation). However, this does not change the legal nature of the contract as a whole as a supply. In this case, a commercial loan is a deferment of payment for the goods for a month, and the rules on the repayment of a cash loan apply to the buyer’s obligation to return the amount for which the buyer is provided with a loan for a period of one month after the transfer of the goods. Sunflower seeds are not the subject of a commodity loan in this case, since under the terms of the agreement they became the property of the borrower without the obligation to return an equal number of the same seeds (resolution of the Federal Antimonopoly Service of the North Caucasus District dated August 14, 2009 in case No. A53-27399/2008 ).

The parties to the loan agreement must adhere to the rule that under the loan agreement it is possible to return only the same amount of money or an equal number of other things received of the same kind and quality. Then such a transaction will not be qualified by the court as some other agreement, rather than a loan agreement.

The borrower is obliged to return not the same property that was received from the lender, but the same amount of other things, but of the same kind and quality. Moreover, if the subject of the loan, which the lender transfers, and the subject of the loan, which the borrower undertakes to return, do not coincide, then the court may recognize such a transaction as sham. That is, a transaction that was concluded with the aim of covering up another transaction (Clause 2 of Article 170 of the Civil Code of the Russian Federation). For example, if things (goods, securities) were transferred as a loan, but the borrower returned the money, then in this case the court may, depending on the specific circumstances of the case, either recognize such an agreement as void or regard the disputed loan agreement as a purchase and sale agreement.

A commodity loan can be reclassified by the tax authority as a supply agreement upon novation. When nominating an obligation to repay a loan into an obligation to supply goods, tax authorities may regard the loan as an advance already on the date of receipt of the money, that is, consider that when recording the transaction in accounting, you distorted its actual economic meaning. And then the amount of the former loan will be included in the VAT tax base for the period in which the money was received (see paragraph 3 of the Resolution of the Plenum of the Supreme Arbitration Court dated October 12, 2006 No. 53; Letter of the Ministry of Finance dated September 7, 2005 No. 03-04-11 /221 (clause 2) This will entail the accrual of penalties, and possibly a fine for incomplete payment of VAT.

If an organization received a cash loan from an individual who is not an entrepreneur, and then, by agreement with him, returns to him real estate instead of money, the market value of which exceeds the amount of the loan (and interest, if accrued), then a reasonable question arises: does the individual have income subject to personal income tax? in the amount of such excess? Repayment under a cash loan agreement instead of real estate money is nothing more than the provision of compensation clause. 409 of the Civil Code of the Russian Federation. There is no need to register the compensation agreement with the Rosreestr authorities. Only the transfer of ownership of the property is registered on the basis of this agreement, the transfer and acceptance certificate and other necessary documents.

When receiving real estate with a value equal to or exceeding the loan debt, the citizen formally does not have income subject to personal income tax. In the first case, because there is no economic benefit from the securities (Article 41 of the Tax Code of the Russian Federation). And in the second, such a type of income as the amount of the difference in price when providing compensation is not named in the Tax Code of the Russian Federation (clause 1 of Article 208 of the Tax Code of the Russian Federation). And as a general rule, an individual’s income is an economic benefit determined in accordance with Chapter. 23 of the Tax Code of the Russian Federation (Article 41 of the Tax Code of the Russian Federation). In addition, tax authorities cannot check the price of a transaction for marketability, since personal income tax in this case is non-entrepreneurial (clause 4 of article 105.3 of the Tax Code of the Russian Federation).

However, in the event of an audit, tax authorities may consider that an individual still has income in such a situation. Then they will charge additional personal income tax to the individual, and the organization will be fined for failure to fulfill the duties of a tax agent. And they may have several reasons for this:

if there is a difference specified in the compensation agreement between the amount of the repaid debt and the price of the real estate, tax authorities can regard this difference as the citizen’s income in kind, equating the loan previously issued by the citizen to partial payment for the real estate (subclause 2, clause 2, article 211 of the Tax Code of the Russian Federation) ;
if it is discovered that a citizen and an organization are interdependent persons (for example, he is its director or founder with a share of more than 25% (Clause 2 of Article 105.1 of the Tax Code of the Russian Federation), then when receiving real estate the citizen may receive income in the form of material benefits ( Subclause 2, clause 1, Article 212 of the Tax Code of the Russian Federation.) But let us remind you that accrual of personal income tax on such income is possible only if your organization had similar real estate and it was sold to a non-related party at a higher price (clause 3 of Art. 212 of the Tax Code of the Russian Federation);
In understating the value of real estate compared to its market price, tax authorities may see the organization and the citizen receiving an unjustified tax benefit (see paragraphs 3, 9 of the Resolution of the Plenum of the Supreme Arbitration Court of October 12, 2006 No. 53). And pay additional taxes to both. For a citizen, as we have already said, personal income tax. And for organizations - VAT (except for cases of transfer of a residential building, apartment, land plot, shares in them (subclause 6, clause 2, article 146, subclause 22, 23, clause 3, article 149 of the Tax Code of the Russian Federation) and income tax ( tax under the simplified tax system), since the transfer of real estate in such a situation is a normal sale (clause 1 of Article 39, subclause 1 of clause 1 of Article 146, clause 3 of Article 167, clause 1 of Article 249, clause 3 of Art. 271 of the Tax Code of the Russian Federation).

Loan repayment with property: tax consequences

The loan is repaid by returning funds to the lender. But on the repayment date, the borrower may not have the required amount, as a result of which the parties may enter into a compensation agreement, according to which the loan debt will be repaid by the transfer of some property. However, before embarking on such a transaction, you need to familiarize yourself with the possible tax consequences.

Legal nuances

According to Article 409 of the Civil Code, by agreement of the parties, an obligation, including a loan, can be terminated by providing compensation in return for execution. In other words, instead of money, the borrower can transfer goods, fixed assets or other property to the lender.

In this case, the amount, terms and procedure for providing compensation are established by the parties. Within the meaning of Article 409 of the Civil Code of the Russian Federation, unless otherwise follows from the compensation agreement, with the provision of compensation, all obligations under the contract are terminated, including the obligation to pay a penalty (clause 3 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 21, 2005 No. 102).

The compensation value specified in the agreement may be higher or lower than the obligation being terminated. In such a situation, it is extremely important to clearly indicate in the agreement whether the obligation is repaid in full or in part (and in what part). In the absence of this information, the courts proceed from the fact that the obligation is terminated completely (clause 4 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 21, 2005 No. 102).

When indicating in the compensation agreement the value of the transferred property, it is not at all necessary to focus on the value at which the transferred property was listed in the borrower’s books. It may well be that the residual value of the transferred fixed asset is less than the value specified in the agreement, and the parties decide that the transfer of this property completely terminates the obligation. The opposite option is also possible - the residual value is higher than the value specified in the compensation agreement.

However, if the value of the property specified in the compensation differs from the amount of the terminated obligation, the parties face certain tax risks. We'll talk about them a little later.

Upon transmission, an implementation occurs

When repaying a loan debt by transferring property, it should be understood that such transfer is regarded as a sale. Indeed, according to paragraph 1 of Article 39 of the Tax Code, the sale of goods by an organization or individual entrepreneur is recognized as the transfer of ownership of goods to another person on a compensated basis. In this case, when transferring property, a transfer of ownership occurs, which means there is a sale. And sales, as you know, are subject to taxes. If the borrower works for OSNO, then the obligation to pay VAT and income tax arises. Accordingly, when transferring the compensation, the borrower will have to draw up an invoice.

The party that received the compensation (the lender) will be able to deduct the amount of VAT included in the cost of the compensation based on the received invoice.

Compensation to “cover” the advance

It is worth remembering that with the method of terminating the obligation described above, the parties may face tax risks. There is a high probability that the tax authorities will regard the loan received as cover for an advance payment for the upcoming supply of goods. Then, naturally, they will try to collect tax, penalties and fines from the borrower for not paying VAT on the advance payment at the time. It should be noted that some organizations actually use such a scheme to avoid charging VAT on advances received.

To minimize risks, you should not resort to this method of repaying the loan too often. An additional argument in favor of the taxpayer will be the fact that the lender, who agreed to this method of repaying the obligation, was not previously (and subsequently became) the buyer of the borrower company. If this condition is met, it will be difficult for the tax inspectorate to prove the existence of the scheme.

Subsequently, the Federal Tax Service, in coordination with the Ministry of Finance, issued a letter dated November 28, 2008 No. ШС-6-3/ [email protected] In it, officials noted that when an agreement is concluded between the borrower and the lender on the repayment by the borrower of its obligations under the loan agreement by shipping goods to the lender, funds received by the borrower in accordance with the loan agreement should be considered on the date of conclusion of the specified agreement as an advance payment for the upcoming delivery of goods. That is, now the official position of the tax and financial departments is that the obligation to calculate VAT arises not at the moment when the money was received as a loan, but at the moment when the parties entered into an agreement on compensation or novation. It’s good if the drawing up of this agreement and the transfer of property takes place in the same quarter. If the transfer of property occurs in another quarter, then the borrower faces new tax risks.

But here you can put forward the following argument. Until the compensation is granted, the obligation to repay the loan actually continues to exist. The Presidium of the Supreme Arbitration Court of the Russian Federation drew attention to this in paragraph 1 of the information No. 102 mentioned above, indicating that the obligation (to repay the loan) terminates from the moment the compensation is provided in return for performance, and not from the moment the parties reach an agreement on compensation. Therefore, loan debt cannot be considered an advance payment. However, this point of view will most likely have to be defended in court.

Documenting

The main document that governs the receipt of a commodity loan is an agreement. When drawing up it, you need to take into account the nuances of the form of lending in question, as well as the rules for drawing up a purchase and sale agreement. Let's consider all the nuances of drawing up a contract:

A clause is indicated on the right to transfer ownership of a thing from one legal entity to another.
The provisions of a standard purchase and sale agreement are prescribed: type of asset, its characteristics, quantity.
Additional items are indicated: availability of interest, loan repayment terms.

As a rule, the contract contains information about the real value of the transferred object.

FOR YOUR INFORMATION! The agreement is recognized as concluded from the date of transfer of the thing on the basis of Article 760 of the Civil Code of the Russian Federation. If an agreement is concluded between legal entities, it must be drawn up in writing (clause 1 of Article 761 of the Civil Code of the Russian Federation). The debtor must return the object within the time period specified in the agreement.