Taxation of interest with corporate income tax

Income tax when paying interest under a cash loan agreement

Expenses in the form of interest under a loan agreement (including if borrowed funds are used for the acquisition (creation) of depreciable property, for the acquisition of a share in the authorized capital) are taken into account by the borrower as part of non-operating expenses, provided that they are aimed at generating income (clause 2 Clause 1 of Article 265, Clause 1 of Article 252 of the Tax Code of the Russian Federation, Letter of the Ministry of Finance of Russia dated March 10, 2015 N 03-03-10/12339 (sent to the Federal Tax Service of Russia for information and use in the work of lower tax authorities by Letter dated March 23, 2015 N ГД-4-3/), dated 04/26/2013 N 03-03-06/1/14650, dated 02/27/2013 N 03-08-05/5690, Federal Tax Service of Russia dated 09/29/2014 N ГД-4-3/19855 ).

In general, for profit tax purposes, interest calculated on the basis of the actual rate established by the agreement is recognized as an expense (clause 1 of Article 269 of the Tax Code of the Russian Federation).

Special rules should be applied in relation to interest on debt obligations that arose as a result of transactions recognized as controlled in accordance with the Tax Code of the Russian Federation (clause 1, clauses 1.1 - 1.3 of Article 269 of the Tax Code of the Russian Federation), as well as in relation to controlled debt according to paragraphs 2 – 6 of Art. 269 ​​of the Tax Code of the Russian Federation (taking into account the norms of paragraphs 7 - 13 of Article 269 of the Tax Code of the Russian Federation). In this material we do not consider interest on these transactions and on controlled debt.

Thus, to include interest under a loan agreement in expenses, as a general rule, the borrower does not calculate the maximum interest amount. Interest in this case is taken into account in full.

It is possible that borrowed funds are used to pay dividends. The Presidium of the Supreme Arbitration Court of the Russian Federation, in Resolution No. 3690/13 dated July 23, 2013 in case No. A40-41244/12-99-222, formed a legal position on the issue of accounting for expenses in the form of interest on such a loan when taxing profits. It lies in the fact that the payment of dividends is associated with activities aimed at generating income, and therefore interest on the loan that was raised to pay dividends reduces the tax base for income tax. These interests are recognized as non-operating expenses based on paragraphs. 2 p. 1 art. 265 Tax Code of the Russian Federation. This position is reflected in the Review of the practice of considering tax disputes by the Presidium of the Supreme Arbitration Court of the Russian Federation, the Supreme Court of the Russian Federation and the interpretation of the norms of legislation on taxes and fees contained in the decisions of the Constitutional Court of the Russian Federation for 2013. This Review was sent to the tax authorities for use in their work by Letter of the Federal Tax Service of Russia dated December 24, 2013 N SA-4-7/23263.

A similar approach to resolving the issue under consideration is expressed in Letters of the Ministry of Finance of Russia dated November 3, 2015 N 03-03-06/1/63388, dated July 24, 2015 N 03-03-06/1/42780. The financial department clarified that for income tax purposes, interest on a loan used to pay dividends is recognized as non-operating expenses based on paragraphs. 2 p. 1 art. 265 Tax Code of the Russian Federation. This position is supported by reference to the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 23, 2013 N 3690/13.

Thus, interest on debt obligations (including loans and borrowings) in the case of using the corresponding raised funds to pay dividends is taken into account when taxing profits.

Previously, the Russian Ministry of Finance adhered to a different point of view (see Letters dated 05/06/2013 N 03-03-06/1/15774, dated 03/18/2013 N 03-03-06/1/8152). It was that expenses in the form of interest on a debt obligation raised to pay dividends are not recognized when determining the tax base for income tax, since such expenses were not made for the purpose of generating income.

In tax accounting, interest on a loan agreement is taken into account by the borrower on the date of recognition of the expense in accordance with Chapter. 25 of the Tax Code of the Russian Federation (clause 3 of Article 328 of the Tax Code of the Russian Federation). Thus, if the borrower uses the accrual method, then under a loan agreement, the validity of which falls on more than one reporting (tax) period, the amount of interest is expensed at the end of each month of the corresponding reporting (tax) period, regardless of the date (terms) of such payments provided for by the contract (clause 8 of article 272, clause 4 of article 328 of the Tax Code of the Russian Federation). Thus, interest is taken into account as part of non-operating expenses evenly throughout the entire term of the loan agreement, regardless of the date of their actual payment - at the end of each month of use of funds (Letter of the Federal Tax Service of Russia dated February 16, 2015 N GD-4-3/2289, Ministry of Finance of Russia dated January 21, 2015 N 03-03-06/1/1521, dated April 10, 2014 N 03-03-06/1/16339).

In the event that the loan agreement expires (the loan is repaid) within a calendar month, the amount of interest is included in expenses on the date of termination of such an agreement (loan repayment) (clause 8 of Article 272 of the Tax Code of the Russian Federation).

Note: if the loan agreement stipulates that the fulfillment of the obligation under it depends on the value (or other value) of the underlying asset with the accrual of a fixed interest rate during the validity period of the agreement, then on the last day of each month of the corresponding reporting (tax) period the borrower recognizes expenses in the form of interest at a fixed rate. In this case, expenses actually incurred based on the current value (or other value) of the underlying asset are taken into account as of the date of fulfillment of the obligation under this agreement (clause 8 of Article 272 of the Tax Code of the Russian Federation).

Income tax when paying interest under a loan agreement, the amount of which is expressed in foreign currency (cu), but was actually received in rubles

The borrower, according to the general rule, takes into account as expenses interest under the loan agreement, calculated on the basis of the actual rate established by the agreement (paragraph 2, paragraph 1, article 269 of the Tax Code of the Russian Federation).

When applying the accrual method in tax accounting, interest obligations expressed in foreign currency (conventional monetary units) are recalculated into rubles on the date the obligation arose, on the date of termination (fulfillment) of obligations and (or) on the last day of the current month, depending on what happened before. Recalculation of obligations (accounts payable) to the lender is carried out on the specified dates at the rate of the Bank of Russia or at another rate established by law or agreement of the parties (paragraph 2, 3, paragraph 8, article 271, paragraph 2, 3, paragraph 10, article 272 Tax Code of the Russian Federation). Due to changes in the exchange rate of foreign currency (conventional monetary units) to the ruble, exchange rate differences arise in settlements with the lender. A positive exchange rate difference occurs when liabilities are devalued, and a negative difference occurs when they are revalued. Such differences are included in non-operating income or non-operating expenses, respectively (clause 11 of article 250, subclause 5 of clause 1 of article 265 of the Tax Code of the Russian Federation).

Exchange differences are recognized as part of non-operating income or non-operating expenses on the date of termination (fulfillment) of obligations and (or) on the last day of the current month, depending on what happened earlier (clause 7, clause 4, paragraph 2, clause 8, art. 271, paragraph 6, paragraph 7, paragraph 2, paragraph 10, article 272 of the Tax Code of the Russian Federation).

Income tax when paying interest under a loan agreement, the amount of which is expressed and actually received in foreign currency

The borrower, according to the general rule, takes into account as expenses interest under the loan agreement, calculated on the basis of the actual rate established by the agreement (paragraph 2, paragraph 1, article 269 of the Tax Code of the Russian Federation).

Expenses in the form of interest payable in foreign currency must be recalculated into rubles (paragraph 1, paragraph 3, paragraph 5, article 252 of the Tax Code of the Russian Federation). For profit tax purposes, this recalculation is made at the official rate established by the Bank of Russia on the date of recognition of the corresponding expense (paragraph 1, clause 10, article 272 of the Tax Code of the Russian Federation).

When applying the accrual method, interest payment obligations expressed in foreign currency are recalculated into rubles on the date the obligation arose, on the date of termination (fulfillment) of obligations and (or) on the last day of the current month, whichever occurred first. Recalculation of obligations (accounts payable) to the lender is carried out on the specified dates at the Bank of Russia exchange rate (paragraph 2, paragraph 8, article 271, paragraph 2, paragraph 10, article 272 of the Tax Code of the Russian Federation). Due to changes in the exchange rate of foreign currency to the ruble, exchange rate differences arise in settlements with the lender. A positive exchange rate difference occurs when liabilities are devalued, and a negative difference occurs when they are revalued. Such differences are included in non-operating income or non-operating expenses, respectively (clause 11 of article 250, subclause 5 of clause 1 of article 265 of the Tax Code of the Russian Federation).

Exchange differences are recognized as part of non-operating income or non-operating expenses on the date of termination (fulfillment) of obligations and (or) on the last day of the current month, depending on what happened earlier (clause 7, clause 4, paragraph 2, clause 8, art. 271, paragraph 6, paragraph 7, paragraph 2, paragraph 10, article 272 of the Tax Code of the Russian Federation).

Clause 2 of Article 269 of the Tax Code of the Russian Federation

For the purposes of this article, controlled debt is the outstanding debt of a taxpayer - a Russian organization for the following debt obligations of this taxpayer (unless otherwise provided by this article):

paragraph 1 for a debt obligation to a foreign person who is an interdependent person of a taxpayer - a Russian organization in accordance with subparagraph 1, 2 or 9 of paragraph 2 of Article 105.1 of this Code, if such a foreign person directly or indirectly participates in the taxpayer - a Russian organization specified in paragraph the first of this paragraph;

paragraph 2 for a debt obligation to a person recognized in accordance with subparagraph 1, 2, 3 or 9 of paragraph 2 of Article 105.1 of this Code as an interdependent person of a foreign entity specified in subparagraph 1 of this paragraph, unless otherwise provided by paragraph 8 of this article;

clause 3 for a debt obligation for which the foreign entity specified in subparagraph 1 of this paragraph and (or) its interdependent party specified in subparagraph 2 of this paragraph acts as a surety, guarantor or otherwise undertakes to ensure the fulfillment of this debt obligation of the taxpayer of the Russian organization , unless otherwise provided by paragraph 9 of this article.

(Clause as amended by Federal Law dated February 15, 2016 No. 25-FZ)

Withholding personal income tax when paying interest under a loan agreement

Income in the form of interest under a loan agreement received by an individual (lender) - a tax resident of the Russian Federation, who is not an individual entrepreneur, is recognized as an object of taxation and is taken into account when determining the tax base for personal income tax (clause 1, clause 1, article 208, clause 1 Article 209, paragraph 1 of Article 210 of the Tax Code of the Russian Federation). An organization that has received a loan from an individual (including from its founder or from an employee) and pays him interest is obliged, as a tax agent, to calculate, withhold from the individual and pay personal income tax to the budget on the amount of such income (clause 1 , 2 Article 226 of the Tax Code of the Russian Federation). Calculation of personal income tax on income in the form of interest received by an individual who is a tax resident of the Russian Federation is carried out at a tax rate of 13% (clause 1 of Article 224 of the Tax Code of the Russian Federation).

Based on clause 3 of Art. 210 of the Tax Code of the Russian Federation, when determining the tax base for personal income tax, a taxpayer (individual) has the right to receive standard tax deductions in the manner prescribed by Art. 218 Tax Code of the Russian Federation. These deductions are provided to him upon actual payment of income in the form of interest on the loan for each month of the tax period in which the agreement was in force.

If income in the form of interest under a loan agreement is received in cash, the date of its actual receipt is determined as the day of payment of interest, including their transfer to the taxpayer’s bank accounts or, on his behalf, to the accounts of third parties (clause 1, clause 1, art. 223 of the Tax Code of the Russian Federation). The tax agent organization is obliged to withhold the accrued amount of personal income tax directly from the income of an individual (lender) upon actual payment (clause 4 of Article 226 of the Tax Code of the Russian Federation).

The organization is obliged to transfer the amount of calculated and withheld personal income tax no later than the day following the day the income is paid to the taxpayer (clause 6 of Article 226 of the Tax Code of the Russian Federation).

Clause 9, Article 269 of the Tax Code of the Russian Federation

The outstanding debt specified in subparagraph 3 of paragraph 2 of this article is not recognized as a controlled debt for a taxpayer - a Russian organization if the following conditions are simultaneously met:

clause 1, the debt obligation arose to an organization that is a bank (including organizations recognized as banks in accordance with the laws of foreign states) or a development bank - a state corporation, not recognized as interdependent persons with either the taxpayer - a Russian organization, or with persons acting as guarantors, a guarantor or otherwise obligated to fulfill a debt obligation of the taxpayer; (As amended by Federal Law No. 466-FZ dated December 29, 2017)

clause 2, from the moment the taxpayer’s debt obligation arose, there was no termination (fulfillment) of the specified debt obligation, both in terms of the amount of the principal debt and in terms of the payment of interest by the foreign entity specified in subparagraph 1 of paragraph 2 of this article and (or) its related party , specified in subparagraph 2 of paragraph 2 of this article, acting as a surety, guarantor or otherwise obliging to ensure the fulfillment of the specified debt obligation.

(Clause introduced - Federal Law No. 25-FZ dated 15.02.2016)

Accounting for interest under a cash loan agreement (accrual and payment)

The procedure for accounting for interest on a loan depends on the purpose for which the borrowed funds were used:

– when borrowed funds are used for the acquisition, construction and (or) production of an investment asset, interest is included in the cost of this asset (paragraph 2, clause 7, clause 9 of PBU 15/2008) <*>.

The inclusion of interest in the initial cost of an investment asset ceases from the first day of the month following the month of termination of the acquisition, construction and (or) production of the investment asset or the month of the beginning of its use for the manufacture of products, performance of work, provision of services (despite the incompleteness of the acquisition work, construction and (or) production of an investment asset) (clauses 12, 13 of PBU 15/2008);

– in other cases, interest is taken into account as part of other expenses (clause 7 of PBU 15/2008).

The specified procedure for accounting for interest on a loan does not depend on how their amount is determined: using the simple or compound interest formula.

In accounting, interest payable is reflected in separate subaccounts for the credit of account 66 “Settlements for short-term loans and borrowings” (when receiving a loan for a period of no more than 12 months) or account 67 “Settlements for long-term loans and borrowings” (when receiving a loan for period of more than 12 months) (Instructions for using the Chart of Accounts). Due to the different procedures for recognizing interest in accounting and tax accounting, differences may arise that are taken into account according to the rules established by PBU 18/02.

If borrowed funds are used to acquire (create) an investment asset, taxable temporary differences (TDT) and deferred tax liabilities (DTL) arise in accounting. This is due to the fact that in tax accounting interest is taken into account as an expense on a monthly basis, and in accounting accounting - as depreciation is calculated on an investment asset acquired (created) using borrowed funds. At the same time, the specified NVR and IT are repaid (clauses 12, 15, 18 PBU 18/02).

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<*> An investment asset is understood as an object of property, the preparation of which for its intended use requires a long time and significant expenses for acquisition, construction and (or) production. Investment assets include objects of unfinished production and construction in progress, which will subsequently be accepted for accounting by the borrower and (or) customer (investor, buyer) as fixed assets (including land), intangible assets or other non-current assets (paragraph 3 p. 7 PBU 15/2008).

<**> In this case, we proceed from the assumption that depreciation is taken into account monthly when forming accounting profit (loss).

<***> The same entry reflects the accrual of interest on loans used for the acquisition (creation) of an investment asset, after the termination of the acquisition, construction and (or) production of the investment asset or the beginning of its use for the manufacture of products, performance of work, provision of services (despite on the incompleteness of work on the acquisition, construction and (or) production of an investment asset).

Accounting for the payment of interest under a loan agreement, the amount of which is expressed in foreign currency (cu), but was actually received in rubles

For accounting purposes, differences that relate to interest on loans denominated in currency. e., and are formed from the moment interest is accrued under the terms of the agreement until their actual repayment (transfer), are exchange rate and are taken into account as part of other expenses or income. Thus, in the event of an increase in the exchange rate from the date of accrual of interest to the date of their payment, negative exchange rate differences are formed, which are reflected in accounting as part of other expenses (clause 11 of PBU 10/99, clauses 1, 3 - 7, 11 - 13 PBU 3/2006). In the event of a decrease in the exchange rate from the date of accrual of interest to the date of payment, positive exchange differences arise in accounting, which are included in other income on the basis of clause 7 of PBU 9/99, clauses 1, 3 - 7, 11 - 13 of PBU 3 /2006.

Accounting for the payment of interest under a loan agreement, the amount of which is expressed and actually received in foreign currency

For accounting purposes, differences that relate to interest on loans denominated and received in foreign currency, and are formed from the moment interest is accrued under the terms of the agreement until their actual repayment (transfer), are exchange rates and are taken into account as part of other expenses or income. Thus, in the event of an increase in the exchange rate from the date of accrual of interest to the date of their payment, negative exchange rate differences are formed, which are reflected in accounting as part of other expenses (clause 11 of PBU 10/99, clauses 1, 3 - 7, 11 - 13 PBU 3/2006). In the event of a decrease in the exchange rate from the date of accrual of interest to the date of payment, positive exchange differences arise in accounting, which are included in other income on the basis of clause 7 of PBU 9/99, clauses 1, 3 - 7, 11 - 13 of PBU 3 /2006.

Accounting for payment of interest under a loan agreement received from an individual

The deduction of the accrued amount of personal income tax from the income (in the form of interest on a loan) of the lender - an individual is reflected in the debit of account 66 “Settlements for short-term loans and borrowings” (or 67 “Settlements for long-term loans and borrowings”) in correspondence with the credit of the account 68 “Calculations for taxes and fees” (Instructions for using the Chart of Accounts).

Clause 7.1, Article 269 of the Tax Code of the Russian Federation

An outstanding debt under a debt obligation is not recognized as a controlled debt for a taxpayer - a Russian organization, if the following conditions are simultaneously met:

the funds constituting the specified outstanding debt are aimed exclusively at financing an investment project implemented by the taxpayer on the territory of the Russian Federation;

the terms of the agreement in accordance with which the debt obligation specified in this paragraph arose provide for the beginning of repayment of the amount of outstanding debt under such debt obligation no earlier than five years after its occurrence;

the total share of direct and indirect participation of an interdependent foreign entity specified in subparagraph 1 of paragraph 2 of this article in a Russian organization does not exceed 35 percent;

The place of registration (place of tax residence) of the person to whom the debt obligation has arisen is a foreign state with which an agreement (agreement, convention) on the avoidance of double taxation has been concluded.

For the purposes of this paragraph, an investment project is recognized as the creation on the territory of the Russian Federation of a new production complex for the production of goods and (or) the provision of services. A production complex is considered new if it was put into operation after January 1, 2021 and has not been in operation before.

In case of failure to fulfill one of the conditions established by this paragraph, the provisions of this article are applied to the outstanding debt under the debt obligation specified in this paragraph without taking into account the provisions of this paragraph from the date of occurrence of the corresponding debt obligation.

(Clause introduced - Federal Law dated July 19, 2018 No. 199-FZ)

Clause 11, Article 269 of the Tax Code of the Russian Federation

The determination of the comparability of debt obligations for the purposes of subparagraph 2 of paragraph 8 of this article is made taking into account the following features:

paragraph 1, to determine the comparability of debt obligations, the total amount of these obligations and the period for which they are provided are taken into account;

paragraph 2 , if there are several debt obligations under transactions concluded with a foreign entity specified in subparagraphs 1 and (or) 2 of paragraph 2 of this article, to determine the total amount of debt obligations for the purposes of subparagraph 1 of this paragraph, the amounts of such obligations are summed up;

clause 3 if the currency of the debt obligation to a foreign person specified in subparagraphs 1 and (or) 2 of paragraph 2 of this article differs from the currency of the debt obligation with which the comparison is made, the debt obligations are converted to a single currency at the rate established by the Central Bank of the Russian Federation on the date of occurrence of the debt obligation to the creditor;

clause 4 if the period for which the debt obligation was provided to the taxpayer - a Russian organization, does not exceed the period for which the outstanding debt on the debt obligation arose to the foreign person specified in subparagraphs 1 and (or) 2 of paragraph 2 of this article, such terms are considered comparable.

(Clause introduced - Federal Law No. 25-FZ dated 15.02.2016)

Clause 13, Article 269 of the Tax Code of the Russian Federation

The court may recognize as controlled debt the outstanding debt of a taxpayer - a Russian organization on debt obligations not specified in paragraph 2 of this article, if it is established that the ultimate purpose of payments on such debt obligations is payments to the organizations specified in subparagraphs 1 and 2 of paragraph 2 of this article. (Clause introduced - Federal Law No. 25-FZ dated 15.02.2016)

(This article was introduced by Federal Law No. 110-FZ of August 6, 2001)
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