Financial benefit from a loan. personal income tax from material benefits on a loan

Wire section calculation
11.11.2020

Often, when receiving loans from individuals, banks or employers, citizens experience material gain from savings on interest, which is the taxable income of an individual who pays personal income tax.

Civil law basis of the loan

The relationship of the parties under the loan agreement is governed by § 1 "Loan" of Chapter 42 "Loan and Credit" of the Civil Code of the Russian Federation.

Under a loan agreement, one party (the lender) transfers money or other things defined by generic characteristics into the ownership of the other party (the borrower). The borrower undertakes to return to the lender the same amount of money (loan amount) or an equal amount of other things received by him of the same kind and quality (clause 1, article 807 of the Civil Code of the Russian Federation).

The loan agreement is considered concluded from the moment of transfer of money or other things. Foreign currency and currency values ​​can also be the subject of a loan agreement on the territory of the Russian Federation in compliance with the rules of Art. 140, 141 and 317 of the Civil Code of the Russian Federation.

Registration of the contract

If the borrower is a citizen

Features of granting a loan at interest to a borrower-citizen for purposes not related to entrepreneurial activity are established by laws (clause 3 of article 807 of the Civil Code of the Russian Federation).

If the loan amount between citizens exceeds at least 10 times the minimum wage established by law, then the contractual relationship between the lender and the borrower is drawn up in a written form of the contract. Otherwise, the loan may be oral.

If the written form of the loan agreement between citizens is not observed, then the debt can be confirmed by a receipt, as indicated by paragraph 2 of Art. 808 of the Civil Code of the Russian Federation and clause 1 of the Review of the Court Practice of the Supreme Court of the Russian Federation No. 1 (2016), approved by the Presidium of the Supreme Court of the Russian Federation on April 13, 2016.

If the lender is an organization

If the lender is an organization, then the written form of the loan agreement is mandatory, regardless of the amount. The lender has the right to receive interest from the borrower on the amount of the loan in the amount and in the manner specified by the agreement, unless otherwise provided by law or the loan agreement. In the absence of a clause on the amount of interest in the agreement, their amount is determined by the existing place of residence of the lender, and if the lender is an organization - at the place of its location, the bank interest rate (refinancing rate) on the day the borrower pays the amount of the debt or its corresponding part (clause 1 of Art. 809 of the Civil Code of the Russian Federation).

In case of early repayment of an interest-bearing loan, the lender has the right to receive interest from the borrower under the loan agreement, accrued inclusively up to the date of repayment of the loan amount in full or in part.

Civil law basis of the loan agreement

Bank lending means the provision of funds to the borrower by a bank or credit institution on the terms of repayment, urgency and payment. With bank lending, a loan agreement is concluded, to which § 2 of Chapter 42 “Loan and Credit” is devoted in the Civil Code of the Russian Federation.

According to paragraph 1 of Art. 819 of the Civil Code of the Russian Federation, a loan agreement is understood as an agreement according to which a bank or other credit organization (creditor) undertakes to provide funds (credit) to the borrower in the amount and on the terms stipulated by the agreement, and the borrower undertakes to repay the amount received "loaned" and pay interest on it.

The legal regulation of the loan agreement is carried out not only on the basis of the rules on the loan agreement, but also on the rules on the loan agreement in the part that does not contradict the essence of the loan agreement.

A loan agreement is always concluded in writing. Failure to comply with this requirement leads to the invalidity of the loan agreement. Such an agreement is considered void, which is established by Art. 820 of the Civil Code of the Russian Federation.

Definition of material benefit

Since the topic of the article deals with material benefit, then first of all it is necessary to determine its concept, which, we note, is not in the Tax Code of the Russian Federation.

Meanwhile, in paragraph 3 of Decree of the Government of the Russian Federation of March 2, 2006 No. 113 “On approval of the Regulations on the establishment of measures to prevent the emergence of a conflict of interest in relation to officials of federal executive bodies involved in the process of regulation, control and supervision in the field of mandatory pension insurance, officials of the Pension Fund Russian Federation and members of the Public Council for Investing Pension Savings” states that material benefit is an economic benefit in cash or in kind, which can be assessed and defined as income in accordance with the tax legislation of the Russian Federation.

The principles for determining income for tax purposes are enshrined in Art. 41 of the Tax Code of the Russian Federation, which defines income as an economic benefit in cash or in kind, taken into account if it is possible to assess it and to the extent that such benefit can be assessed, and determined (in the context of this article) in accordance with Chapter 23 "Tax on personal income” of the Tax Code of the Russian Federation.

Therefore, from the point of view of personal income tax, material benefit should be understood as the economic benefit of an individual, which can be recognized as his income if the following conditions are met:

to be received in cash or in kind; its size can be estimated; it can be determined in accordance with the rules of Chapter 23 of the RF Tax Code.

When material benefit is exempt from personal income tax

Based on paragraph 1 of Art. 210 of the Tax Code of the Russian Federation, the income of an individual in the form of material benefits is included in the tax base for personal income tax.

Features of the calculation of the tax base when receiving income in the form of material benefits are established by Art. 212 of the Tax Code of the Russian Federation.

One of the types of material benefit subject to personal income tax is the material benefit from savings on interest for the use by the taxpayer of borrowed (credit) funds received from organizations or individual entrepreneurs. However, there are exceptions in which material benefits are exempt from personal income tax (see Chart 1).

In the last two cases, the material benefit is exempt from taxation, provided that the taxpayer has the right to receive a property tax deduction, established by paragraphs. 3 p. 1 art. 220 of the Tax Code of the Russian Federation, confirmed by the tax authority in the manner prescribed by paragraph 8 of Art. 220 of the Tax Code of the Russian Federation. Similar clarifications are contained in the letters of the Ministry of Finance of Russia dated September 21, 2016 No. 03-04-07 / 55231, dated August 5, 2016 No. 03-04-07 / 46125, dated June 16, 2016 No. 03-04-05 / 35061, dated 18.03.16 No. 03-04-06/15118.

The specified exemption applies even if the taxpayer for any reason did not use the property deduction for the acquired property (letter of the Ministry of Finance of Russia dated September 4, 2009 No. 03-04-05-01 / 671).

The exemption of such material benefits from taxation is also not affected by the start of using the property deduction (letters of the Ministry of Finance of Russia dated July 24, 2013 No. 03-04-05 / 29212, dated February 9, 2012 No. 03-04-05 / 7-136) .

The material benefit is also exempt from personal income tax if the borrower continues to repay his loan obligations after the property tax deduction has been fully used. This follows from the provisions of p.p. 1 p. 1 art. 212 of the Tax Code of the Russian Federation and is confirmed by letters of the Ministry of Finance of Russia dated December 16, 2014 No. 03-04-05 / 64921, dated April 8, 2014 No. 03-04-05 / 15908, dated August 8, 2012 No. ED-3-3 /2805.

Documents confirming the right to exemption from personal income tax income in the form of material benefits

A document confirming the taxpayer's right to receive a property tax deduction, established by paragraphs. 3 p. 1 art. 220 of the Tax Code of the Russian Federation, is a notification, the form of which is approved by order of the Federal Tax Service of Russia dated January 14, 2015 No. ММВ-7-11 / 3@ “On approval of the form of a notification confirming the right of a taxpayer to property tax deductions provided for in subparagraphs 3 and 4 of paragraph 1 of Article 220 of the Tax Code of the Russian Federation” (hereinafter referred to as the Notification).

At the same time, in order to exempt taxpayers' income from taxation in the form of material benefits from savings on interest for the use of borrowed (credit) funds in accordance with the provisions of Art. 212 of the Tax Code of the Russian Federation, a certificate can be used, the form of which is recommended by the letter of the Federal Tax Service of Russia dated January 15, 2016 No. BS-4-11 / 329@ “On sending the recommended form of a certificate” (hereinafter referred to as the Certificate). At the same time, the Certificate, in the opinion of the Ministry of Finance of Russia, set out in letter No. 03-04-07/55231 dated September 21, 2016 (hereinafter referred to as Letter No. 03-04-07/55231), may be issued by the tax authority for submission to tax agents, including employers. It should be noted that the tax authorities also agree with this opinion, as evidenced by the letter of the Federal Tax Service of Russia dated October 4, 2016 No. BS-4-11 / 18723@ “On the taxation of personal income tax”, brought to the lower tax authorities.

This letter of the Ministry of Finance of Russia also states that the Notice and the Certificate must contain the details of the loan (credit) agreement, on the basis of which the borrowed (credit) funds were provided, spent on the acquisition of real estate, in respect of which a property tax deduction was granted.

In the absence of the details of the loan (credit) agreement in the specified documents, these documents cannot be the basis for exemption from taxation of income in the form of material benefits from savings on interest for the use of borrowed (credit) funds, since they do not confirm the fact that the loan (credit) at the repayment of which a material benefit is determined, was spent on the acquisition of real estate, in respect of which the taxpayer was granted a property tax deduction.

In addition, Letter No. 03-04-07/55231 states that starting from the month a taxpayer provides a document confirming his right to receive a property tax deduction, the amounts of personal income tax withheld by a tax agent from income in the form of material benefit from the beginning of the tax period are subject to offset when calculating the amounts of personal income tax on an accrual basis on the amounts of the taxpayer's income subject to taxation.

The amount of personal income tax calculated and withheld from the beginning of the tax period up to the month inclusive (if the tax in it has already been calculated and withheld), in which the Notice or Certificate was provided, is excessively transferred to the budget.

Based on paragraph 1 of Art. 231 of the Tax Code of the Russian Federation, the amount of personal income tax withheld by a tax agent from the taxpayer's income is subject to return by the tax agent on the basis of a written application from the taxpayer.

Personal income tax from material benefits in the form of a loan from organizations or individual entrepreneurs

So, in the general case, the material benefit from saving on interest for the taxpayer's use of borrowed (credit) funds received from organizations or individual entrepreneurs is a taxable income of an individual. Moreover, as indicated in the letter of the Ministry of Finance of Russia dated June 23, 2015 No. 03-11-11 / 36210, it is determined only in cases where the taxpayer saves on interest for the use of borrowed (credit) funds received from organizations and merchants.

From paragraph 4, paragraph 2, Art. 212, paragraph 4 of Art. 226 of the Tax Code of the Russian Federation it follows that the material benefit from savings on interest for the use of borrowed (credit) funds is determined by a tax agent - an organization or a merchant that has provided a loan (credit) to a taxpayer. From the amount of the material benefit of the taxpayer, the tax agent must calculate personal income tax, withhold it and transfer the tax to the budget.

According to paragraph 2 of Art. 212 of the Tax Code of the Russian Federation, when a taxpayer receives income in the form of a material benefit, the procedure for determining the tax base depends on the currency in which the taxpayer received a loan (credit) - in Russian or foreign (see Chart 2).

Personal income tax from a loan in foreign currency

The issue of calculating personal income tax from income in the form of material benefits from savings on interest for the use of borrowed (credit) funds denominated in foreign currency was considered by the Ministry of Finance of Russia in a letter dated April 7, 2016 No. 03-04-06 / 19792. It states that, in accordance with paragraph 5 of Art. 210 of the Tax Code of the Russian Federation, income (expenses accepted for deduction in accordance with Articles 214.1, 214.3, 214.4, 214.5, 218-221 of the Tax Code of the Russian Federation) of a taxpayer, denominated (nominated) in foreign currency, are converted into rubles at the official exchange rate of the Central Bank of the Russian Federation established at the date of actual receipt of the said income (the date of actual expenditure).

Thus, the calculation of the amount of tax is made by tax agents at the rate established on the date of actual receipt by the taxpayer of the specified income.

When is a material benefit recognized as income?

According to p.p. 7 p. 1 art. 223 of the Tax Code of the Russian Federation when receiving income in the form of material benefits received from savings on interest when receiving borrowed (credit) funds, the date of actual receipt of income is determined as the last day of each month during the period for which the borrowed (credit) funds were provided.

The specified procedure for receiving income in the form of material benefit is applied only from 01/01/16, this is indicated by Federal Law No. 113-FZ dated 05/2/15 "On Amendments to Parts One and Two of the Tax Code of the Russian Federation in order to increase the responsibility of tax agents for non-compliance with the requirements of legislation on taxes and fees.

Therefore, the tax agent must determine the material benefit of the taxpayer and calculate the amount of personal income tax from it on the last day of each month during the entire period of use of borrowed funds by an individual (letter of the Federal Tax Service of Russia dated November 23, 2016 No. BS-4-11/22246@).

According to the letters of the Ministry of Finance of Russia dated March 18, 2016 No. 03-04-07 / 15279, dated April 11, 2016 No. 03-04-06 / 20463 from January 1, 2016 income in the form of material benefits received from savings on interest for the use of borrowed (credit) funds, is determined on the last day of each month in which the loan (credit) agreement was in force, regardless of the date of receipt of such a loan (credit), and also regardless of which day of the month the debt obligation was terminated . The tax authorities also agree with this opinion, which is confirmed by the letter of the Federal Tax Service of Russia dated March 29, 2016 No. BS-4-11 / 5338@ “On taxation of personal income”.

At the same time, in letters dated 10/17/16 No. 03-04-07 / 60359, dated 04/11/16 No. 03-04-06 / 20463, the Ministry of Finance of Russia noted that if until 2016 the debt on an interest-free loan was not repaid , then income in the form of material benefit subject to personal income tax does not arise in the tax periods preceding the tax period of 2016.

If the taxpayer (borrower) is a resident of the Russian Federation, then the tax is calculated by the tax agent at a rate of 35%, but if the borrower is not a resident, a tax rate of 30% is applied, as indicated in paragraphs. 2 and 3 Art. 224 of the Tax Code of the Russian Federation, respectively.

Material benefit with a foreign mortgage

Today, many Russian citizens purchase real estate abroad, especially since compared to Russian mortgage lending, foreign mortgages look quite attractive due to low interest rates.

Meanwhile, in Russia, few people know that a foreign mortgage with low interest leads to the formation of income in the form of material benefits, taxed at a rate of 35%. At the same time, as explained in the letter of the Federal Tax Service of Russia dated May 17, 2016 No. BS-4-11 / 8712 “On taxation on personal income”, in this case the taxpayer is obliged to independently declare the income received and pay the tax.

Financial benefit from late payments

Note that borrowers do not always fulfill their contractual obligations to repay loans and credits in good faith, allowing for delays in payments.

In order to reduce their risks, lenders and banks provide for this case in the contracts a condition that, in case of late payment, the borrower pays interest in an increased amount, which, by the way, is not prohibited by law.

Recall that according to paragraph 1 of Art. 811 of the Civil Code of the Russian Federation, unless otherwise provided by law or the loan agreement, in cases where the borrower does not return the loan amount on time, interest is payable on this amount in the amount provided for in paragraph 1 of Art. 395 of the Civil Code of the Russian Federation, from the day when it was supposed to be returned until the day it was returned to the lender, regardless of the payment of interest provided for in paragraph 1 of Art. 809 of the Civil Code of the Russian Federation.

At the same time, the taxpayer and the tax agent must understand that the contractual interest in case of delay in payments remains the same, which does not increase by the amount of penalty interest. After all, interest under Art. 395 of the Civil Code of the Russian Federation represent a measure of the borrower's responsibility for the late payments, and therefore the material benefit from savings on interest will remain the same.

If the lender is an employer

If a loan is issued to an individual by his employer, then the amount of the calculated tax is withheld by him as a tax agent at the expense of any cash income paid to the individual (borrower). At the same time, the amount of tax withheld cannot exceed 50% of the amount of income paid in cash (clause 4 of article 226 of the Tax Code of the Russian Federation, letter of the Ministry of Finance of Russia of December 11, 2015 No. 03-04-06 / 72664).

Not later than the day following the day of payment of the monetary income from which the tax on material gain was withheld, the tax agent is obliged to transfer this tax to the budget, which follows from paragraph 6 of Art. 226 of the Tax Code of the Russian Federation.

If it is impossible to withhold the amount of tax from the borrower during the year, the employer-lender must, no later than March 1 of the year following the expired tax period, notify the borrower and the tax authorities at the place of its registration in writing about the impossibility of withholding tax, indicating the amount of income from which the tax and the amount of the tax itself were not withheld. This is indicated as paragraph 5 of Art. 226 of the Tax Code of the Russian Federation, as well as the explanations of the Ministry of Finance of Russia, set out in a letter dated 14.01.16 No. 03-04-06 / 636.

Banks lending to their employees are guided by the same rules. If the material benefit from saving on interest is received by the borrower from a bank that is not his employer, then the borrower must independently calculate the tax and pay it to the budget by submitting a declaration in the form 3-NDFL to the tax office, which follows from paragraph 4 of Art. 226 and paragraph 1 of Art. 229 of the Tax Code of the Russian Federation.

Minimum wage for 2016-2017

From July 1, 2016, the minimum wage is 7,500 rubles. per month, as indicated by Art. 1 of the Federal Law of June 19, 2000 No. 82-FZ (as amended on June 2, 2016) “On the Minimum Wage” (hereinafter - Law No. 82-FZ). At the same time, from July 1, 2017, in connection with the adoption of Federal Law No. 460-FZ of December 19, 2016 “On Amendments to Article 1 of the Federal Law “On the Minimum Wage”, the minimum wage will increase to 7,800 rubles. per month. At the same time, from Art. 5 of Law No. 82-FZ, it follows that the calculation of payments for civil obligations established depending on the minimum wage is made from 1.01.01 on the basis of a base amount of 100 rubles.

Refinancing rate

From January 1, 2016, the Bank of Russia does not set an independent value of the refinancing rate, it is equated to the value of the key rate of the Bank of Russia, determined on the corresponding date (Instruction of the Bank of Russia dated December 11, 2015 No. 3894-U “On the refinancing rate of the Bank of Russia and the key rate of the Bank of Russia). According to the information published on the website www.cbr., on April 28, 2017, the Board of Directors of the Bank of Russia decided to reduce the key rate to 9.25% per annum from May 2, 2017.

Commentary on the Letter of the Ministry of Finance of the Russian Federation of February 15, 2016 No. 03-04-05/7920.

In the commented Letter dated February 15, 2016 No. 03-04-05 / 7920, employees of the financial department recalled that the terms for paying personal income tax have changed since January 1, 2016, namely, in accordance with paragraphs. 3 p. 1 art. 223 of the Tax Code of the Russian Federation for the purpose of paying personal income tax, the date of receipt of income in the form of material benefit is the day of its receipt.

Consequently, the date of receipt of income from savings on interest is now recognized as the last day of each month during the period for which the borrowed (credit) funds were provided.

At the same time, employees of the Ministry of Finance clarified that since 2016, received from savings on interest, is determined on the last day of each month in which the loan (credit) agreement was in effect, regardless of the date such a loan (credit) was received, and also regardless of whether on which day of the month the debt obligation was terminated.

Please note: The above procedure also applies in cases where interest under the terms of the agreement was accrued, but not paid before 01/01/2016. This is stated in the Letter of the Ministry of Finance of the Russian Federation dated February 2, 2016 No. 03-04-06 / 4762.

How to determine the date of receipt of material benefits if the loan was issued in 2015 and repaid in 2016?

In what cases does material benefit arise?

In accordance with paragraphs. 1 p. 1 art. 212 of the Tax Code of the Russian Federation, an organization is obliged to calculate personal income tax from material benefits received from savings on interest when providing a loan (including interest-free) to an individual:

  • if the rate on a loan, the amount of which is determined in rubles, is less than 2/3 of the refinancing rate (key rate) of the Central Bank of the Russian Federation (clause 1, clause 2, article 212 of the Tax Code of the Russian Federation);
  • if the rate on a loan, the amount of which is determined in a foreign currency, is less than 9% (clause 2, clause 2, article 212 of the Tax Code of the Russian Federation).

What is the rate for personal income tax on material benefits?

The Tax Code of the Russian Federation established personal income tax rates. This article says:

  • if the borrower is a tax resident of the Russian Federation - at a rate of 35% (clause 2, article 224 of the Tax Code of the Russian Federation);
  • if the borrower is not a tax resident of the Russian Federation - at a rate of 30% (clause 3 of article 224 of the Tax Code of the Russian Federation).

The amount of material benefit on a loan issued in rubles is calculated by the formula:

MW \u003d SZ x (2/3 x% of the Central Bank of the Russian Federation -%) / 365 (366) x days., Where:

MV- the material benefit received from savings on interest;

NW- loan amount;

% TSB RF- the refinancing rate of the Central Bank of the Russian Federation, which was in effect on the last day of the month;

% - the interest rate on the loan;

365 (366) - the number of days in a year;

days

The amount of material benefit on a loan issued in a foreign currency is calculated by the formula:

MW \u003d SZ x (9% -%) / 365 (366) x days., Where:

MV– material benefit from savings on interest;

NW- loan amount;

% - the interest rate on the loan;

365 (366) - the number of days in a year;

days- the number of days of using the loan per month.

For clarity, we will give an example of calculating the material benefit of an individual received from savings on interest, personal income tax from it, indicating the specific dates of receipt of income.

Example

On 12/18/2015, the organization provided its employee with a loan in the amount of 60,000 rubles. for a period of 3 months at a rate of 3% per annum. The employee is tax resident. Interest is paid in a lump sum upon repayment of the loan. On March 18, 2016, the employee returned the loan and paid interest in the amount of 447.54 rubles. (60,000 rubles x 3% / 366 days x 91 days). We calculate personal income tax from the material benefits received from savings on interest on the loan issued.

So, the date of receipt of income from savings on interest is the last day of each month during the period for which the loan (credit) funds were provided in 2016, and in 2015 it is the date of repayment of the loan by the tax agent. The refinancing rate (key rate) on the interest payment date is 11%.

In 2016, the material benefit from savings on loan interest will be:

  • as of January 31 - 223.6 rubles. (60,000 rubles x (2/3 x 11% - 3%) / 366 days x 31 days). Personal income tax from the amount of material benefits - 78.26 rubles. (223.6 rubles x 35%);
  • on February 29 - 209.18 rubles. (60,000 rubles x (2/3 x 11% - 3%) / 366 days x 29 days). Personal income tax from the amount of material benefits - 73.21 rubles. (209.18 rubles x 35%);
  • as of March 31 - 122.62 rubles. (60,000 rubles x (2/3 x 11% - 3%) / 366 days x 17 days). Personal income tax from the amount of material benefits - 42.92 rubles. (122.62 rubles x 35%).

The material benefit received from the savings on interest on the loan for 2015 will be:

  • on March 18 - 100.98 rubles. (60,000 rubles x (2/3 x 11% - 3%) / 366 days x 14 days). Personal income tax from the amount of material benefits - 35.34 rubles. (100.98 rubles x 35%).

When is it necessary to transfer personal income tax to the budget?

According to paragraphs 4 and 6 of Art. 226 of the Tax Code of the Russian Federation, the organization must withhold personal income tax from material benefits upon the next payment of money to the borrower. As for the tax, it must be transferred to the budget no later than the day following the day when the money was paid.

Are the sums of material benefits accrued to off-budget funds?

According to part 3 of Art. 7 of Federal Law No. 212-FZ, payments and other remunerations made, in particular, under civil law contracts, the subject of which is the transfer of ownership or other real rights to property (property rights), do not apply to the object of taxation of insurance premiums. Thus, the material benefit of an employee for using an interest-free loan received from an employer is not recognized as an object of taxation of insurance premiums.

These clarifications are presented in the Letter of the Ministry of Labor of the Russian Federation dated February 17, 2014 No. 17-4 / V-54.

Federal Law No. 212-FZ dated July 24, 2009 “On Insurance Contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, and the Federal Compulsory Medical Insurance Fund”.

Almost all income received by citizens is subject to personal income tax. These include material benefits (MB), the income from which is taxed at the rates established by Art. 224 of the Tax Code of the Russian Federation.

When there is material gain

Basically, such benefits appear when a citizen acquires the right to own any asset on more favorable terms than the criteria that apply to other consumers. For example, when obtaining a loan - interest-free or at an interest below the current marginal rate, purchasing securities worth below market value or services / goods under GPC agreements from companies and individual entrepreneurs interdependent with the buyer. Situations when MV occurs are named in Art. 212 of the Tax Code of the Russian Federation. There is also a list of non-taxable exceptions.

DC is formed from savings on loan interest, if the rate on the loan received is below the limit, calculated as 2/3 of the refinancing rate (the key rate of the Central Bank). As of the date of this publication, the maximum rate is 5.167% (7.75% x 2/3). The difference between the marginal re-rate and the borrowing rate forms the amount of taxable savings.

The percentage of personal income tax from material benefits

Basically, withholding personal income tax from material benefits is carried out at a rate of 35%, but it varies depending on the type of income and the status of the payer. So for individuals - residents of the Russian Federation, the following rates apply:

  • 35% - for MB from savings on credit interest that does not reach the limit values, i.e. 2/3 refinancing rate for ruble and 9% per annum for foreign currency loans. MV from savings on loan interest is determined by a tax agent - a company or a businessman that has provided a loan to an individual. From the amount of the benefit received, he is obliged to calculate, withhold and transfer personal income tax;

    • 13% - for the taxation of DC on the acquisition of goods and materials from related parties or securities at a reduced cost.

  • At a rate of 30%, personal income tax is withheld from material benefits received by a non-resident of the Russian Federation, regardless of its type.

How to calculate personal income tax from material benefits on a loan

The most common situation is considered to be receiving MC from savings on interest on the loan provided. You can calculate MW using the formula:

MV \u003d RZ x (2/3 St ref - St z) x D pz / D g, where:

РЗ - loan amount;

St ref - refinancing rate of the Central Bank on the date of receipt of income;

St z - loan rate;

D g - the number of days in a year - 365 or 366;

D pz - the number of days of using the loan.

For your information! Personal income tax is calculated from income for using a loan on the last day of each month (considered the date of receipt of income) throughout the entire period of using the loan, i.e., regardless of the date of payment of interest and repayment of the loan, MC is calculated monthly.

For a tax resident of the Russian Federation, the tax on income from DC is calculated according to the formula:

Personal income tax \u003d RZ x (2/3 St ref - St z) x D pz / D g x 35%.

For a non-resident, personal income tax = RZ x (2/3 St ref - St z) x D pz / D g x 30%.

This formula is acceptable for calculating tax on ruble loans, and loans received in foreign currency are adjusted according to the marginal rate:

Personal income tax on the amount of material benefits on foreign currency loans \u003d RZ x (9% - St z) x D pz / D g x 35% (or 30%).

Example

On February 1, 2019, an employee of the company - a tax resident of the Russian Federation received a loan from the employer in the amount of 400,000 rubles. for 6 months at 3% per annum. The refinancing rate in the lending period is 7.75%, respectively, the marginal rate is 5.167%. There is a savings on interest - 2.167% (5.167 - 3).

According to the terms of the agreement, the employee returned the full amount of the loan to the company’s account on July 31, 2019, and paid the accrued interest monthly. The personal income tax rate on material benefits is 35%.

The accountant calculates interest and withholds it from the salary every last day of the month, and also withholds personal income tax from MB. Calculation of personal income tax from material benefits:

date

Number of days in a month

Interest for using a loan under an agreement

(400000 x 3% / 365 x D pz)

Interest at marginal rate

(400,000 x 5.167% / 365 x D pz)

MW for the period

(400000 x (5.167 - 3)% / 365x D pz)

personal income tax with CF

(Sum MV X 35%)

In accounting, transactions for accruing personal income tax from material benefits are reflected as follows:

Operations

Loan issued

Interest earned for February

Withholding personal income tax with MV from the salary due

personal income tax transferred

Subsequently, on each last day of the month, interest and personal income tax with MC on them are accrued and withheld. At the end of July, the loan was returned:

Loan repayment

Interest accrued for July

Accrued and withheld personal income tax with CF

personal income tax paid

If an employer issued an interest-free loan, personal income tax from material benefits would be calculated not from the difference in rates, but from the maximum current rate - in this case 5.167%. In this case, personal income tax should be withheld on the day the loan is repaid - 07/31/2019:

Terms of payment of personal income tax from material benefits on interest

The legislator has established a deadline for transferring personal income tax from material benefits - this should be done on the next day following the day when the tax was withheld. In the field "104" of the payment, at the same time, the CBC of personal income tax from material benefits in 2019 is indicated - 18210102010011000110.

Return of personal income tax from material benefits

According to the letter of the Federal Tax Service No. BS-4-11 / 18723@ dated 04.10.2016, income in the form of MC from savings on loan interest is exempt from personal income tax only if the loan was received to purchase housing or a plot for its construction. The tax refund is made upon confirmation of the right to a tax deduction by an appropriate notification (approved by Order of the Federal Tax Service of Russia dated January 14, 2015 No. ММВ-7-11/3@).

Thus, in order to receive a refund of the tax transferred by the employer, the employee must collect documents confirming the ownership of the residential property and submit a notice of confirmation of the right to the deduction at the place of work. Personal income tax withheld before the notification is submitted, the employer has the right to recognize as excessively transferred and return it based on the employee's application.

Since 2018, the procedure for taxing personal income tax on material benefits on loans has changed (clause 1, clause 1, article 212 of the Tax Code of the Russian Federation (as amended, effective from 01/01/2018)). Thus, a taxable benefit arises when at least one of the following conditions is met:

  • a loan was received by an individual from an organization or individual entrepreneur with whom he has an employment relationship;
  • a loan was received by an individual from an organization or individual entrepreneur who are recognized as interdependent persons with him;
  • savings on interest is actually material assistance;
  • saving on interest is actually a form of counter-performance by an organization or individual entrepreneur of an obligation to an individual, incl. payment (remuneration) for the goods delivered to them (work performed, services rendered).

True, sometimes material benefits are not subject to personal income tax, even despite the observance of at least one of the above conditions.

When the borrower in any case does not receive a personal income taxable material benefit on the loan

Material benefit is exempt from taxation if two requirements are met (clause 1 clause 1 article 212 of the Tax Code of the Russian Federation):

  • the loan agreement states that the funds were provided to the borrower for the purchase of a specific housing or for the construction of housing;
  • the borrower provided the lender with a notice or a certificate from the IFTS confirming the borrower's right to receive a property deduction in respect of this housing. Moreover, the document from the IFTS must necessarily indicate the details of the loan agreement (clause 2 of the Letter of the Ministry of Finance dated September 21, 2016 No. 03-04-07 / 55231).

How much is recognized as a material benefit on a loan

Interest savings benefits include:

  • if the agreement is interest-bearing, then the difference between the amount of interest calculated on the basis of 2/3 of the Central Bank refinancing rate and the amount of interest calculated on the basis of the rate specified in the loan agreement;
  • if the agreement is interest-free, then the amount of interest calculated on the basis of 2/3 of the Central Bank refinancing rate.

On what date should the material benefit on the loan be calculated

For the purposes of paying personal income tax, income in the form of material benefits from savings on interest is considered received on the last day of each month during the period for which the loan was issued (clause 7, clause 1, article 223 of the Tax Code of the Russian Federation). Therefore, the tax agent on these dates needs to calculate material benefits and personal income tax from it.

Personal income tax rate on material benefits on a loan

At what personal income tax rate the material benefit from savings on interest will be taxed depends on who received the material benefit: a resident or non-resident of the Russian Federation (clause 2 of article 207 of the Tax Code of the Russian Federation). Thus, income in the form of material benefit of a tax resident of the Russian Federation will be taxed at a rate of 35% (clause 2 of article 224 of the Tax Code of the Russian Federation), and not a resident - at a rate of 30% (clause 3 of article 224 of the Tax Code of the Russian Federation). That is, in this case, non-residents are in a more advantageous position than residents of the Russian Federation.

When issuing loans in foreign currency, material benefits subject to personal income tax may also arise

When obtaining a loan in foreign currency, the borrower receives a material benefit subject to personal income tax, if (clause 2, clause 2, article 212 of the Tax Code of the Russian Federation):

  • an interest-bearing loan was issued with a rate of less than 9% per annum (material benefit is the difference between the amount of interest calculated on the basis of 9% per annum and the amount of interest calculated on the basis of the rate specified in the loan agreement);
  • an interest-free loan was issued (material benefit is the amount of interest calculated on the basis of 9% per annum);

Accordingly, the lender in such a situation becomes a tax agent for personal income tax.

Material benefit in personal income tax reporting

Information related to income in the form of material benefits on a loan and personal income tax from it must be reflected:

  • in certificate 2-NDFL (material benefit from savings on interest corresponds to code 2610 (Appendix No. 1 to the Order of the Federal Tax Service of September 10, 2015 No. ММВ-7-11 / 387@));
  • in the calculation in the form 6-NDFL.

Financial benefits and insurance premiums

The material benefit from savings on interest is not subject to insurance premiums (

From January 1, 2016, the procedure for calculating and withholding personal income tax from material benefits arising from savings on interest on low-interest or interest-free loans, which employers often provide to employees, has changed. The refinancing rate of the Bank of Russia, which is involved in the calculation of material benefits, has become higher, and personal income tax from this type of income must be withheld more often. Details are in our publication.

In 2016, when an employee receives income in the form of material benefits from savings on interest for the use of borrowed (credit) funds, the date of actual receipt of income is recognized as the last day of each month during the period for which the borrowed (credit) funds were provided (paragraph 1 of Art. 2, part 3, article 4 of the Federal Law of May 2, 2015 No. 113-FZ, hereinafter - Law No. 113-FZ). That is, the tax burden on employees increases.

Let us consider this change using the example of various situations, such as the repayment in 2016 of a loan (credit) provided in 2015, the absence of taxable income from an employee who received a loan (credit).

Loan: differences from credit

A loan is a contractual relationship, according to which one party (the lender) transfers money or other things defined by generic characteristics to the ownership of the other party (the borrower). The borrower undertakes to return to the lender the same amount of money (loan amount) or an equal amount of other things received by him of the same kind and quality.

If the lender under the agreement is an organization or an individual entrepreneur, such an agreement must be concluded in writing (subparagraph 1, paragraph 1, article 161, paragraph 1, article 808, paragraph 3, article 23, paragraph 2, paragraph 1, article 807 of the Civil Code of the Russian Federation).

As follows from paragraph 1 of Art. 809 of the Civil Code of the Russian Federation, unless otherwise provided by law or the loan agreement, the lender has the right to receive interest from the borrower on the loan amount in the amount and in the manner determined by the agreement. In a situation where the amount is not specified in the agreement, they are accrued based on the refinancing rate of the Bank of Russia, which is valid at the location (place of residence) of the lender on the day the borrower pays the amount of the debt or part of it.

If, under a loan agreement, not money, but things are transferred, then such an agreement, as a rule, is interest-free. However, the parties to the agreement can prescribe in it a condition on the calculation of interest (clause 3 of article 809 of the Civil Code of the Russian Federation).

A loan is a contractual relationship under which only cash can be transferred, and the creditor must be either a bank or another credit organization (clause 1, article 819 of the Civil Code of the Russian Federation).

Interest on the loan amount is charged on a mandatory basis, that is, a loan, unlike a loan, cannot be interest-free (clause 1, article 819 of the Civil Code of the Russian Federation). The loan agreement must be drawn up in writing (Articles 820, 822, 823, paragraph 1 of Article 822, clause 1 of Article 823 of the Civil Code of the Russian Federation).

personal income tax from material gain

So, as a general rule, personal income tax is taxed on income in the form of material benefits received from savings on interest for the use of borrowed (credit) funds that an organization or an individual entrepreneur has provided to individuals (subclause 1, clause 1, article 212 of the Tax Code of the Russian Federation).

In accordance with sub. 1, 2 p. 2 art. 212 of the Tax Code of the Russian Federation, such savings arise in cases where the taxpayer:

1) an organization or an individual entrepreneur has issued a loan (credit) in rubles, the interest rate on which does not exceed 2/3 of the refinancing rate of the Bank of Russia;

2) a loan (credit) in foreign currency has been issued, the interest rate on which does not exceed 9%;

3) an interest-free loan was issued (letter of the Ministry of Finance of Russia dated 08.04.2010 No. 03-04-05 / 6-175, resolutions of the Federal Antimonopoly Service of the Volga District dated 07.11.2013 No. A55-26978 / 2012, West Siberian District dated 08.01.2012 No. A27- 9497/2011).

Don't miss out!

From January 1, 2016, the refinancing rate became equal to the key rate (Decree of the Bank of Russia dated December 11, 2015 No. 3894-U). There will be no more individual values. At the moment, the key rate is 11%.

However, in some cases related to the provision of loans, there is no material benefit and, accordingly, the need to calculate personal income tax.

So, there is no material benefit:

With regard to interest under Art. 811 and 395 of the Civil Code of the Russian Federation as measures of liability for the delay in a monetary obligation (penalties accrued on the amount of a loan not repaid on time) (letters of the Ministry of Finance of Russia dated November 13, 2012 No. 03-04-06 / 4-317, dated November 15, 2012 No. 03 -04-05/4-1303, dated 10/16/2012 No. 03-04-06/4-304, dated 09/10/2012 No. 03-04-05/4-1092, dated 08/31/2012 No. 03-04-05/ 4-1037, dated 08.28.2012 No. 03-04-08/4-279 (sent by letter of the Federal Tax Service of Russia dated 10.10.2012 No. ED-4-3/17120@), dated 08.27.2012 No. 03-04-06/4 -258.);

When a loan is granted by one individual to another (letters of the Ministry of Finance of Russia dated 18.08.2009 No. 03-11-09 / 284, dated 19.01.2009 No. 03-04-05-01 / 12). However, if an interest-free loan agreement is concluded between individual entrepreneurs, then the person who received income in the form of material benefit is obliged to calculate and pay tax to the budget (Resolution of the Federal Antimonopoly Service of the Volga District dated 06.23.2011 No. A65-20542 / 2010);

Borrowed funds were provided at the expense of the budget (letters of the Ministry of Finance of Russia dated 08.05.2013 No. 03-04-06 / 16299, dated 04.04.2011 No. 03-04-05 / 6-217, dated 08.12.2009 No. 03-04-05-01 /885).

There are situations when a material benefit in the form of savings on interest is exempted from personal income tax by a direct indication of this in the norms of the Tax Code of the Russian Federation.

So, personal income tax is not levied on material benefits received from savings on interest for the use of borrowed (credit) funds, which are provided:

For new construction or acquisition on the territory of the Russian Federation of a residential building, apartment, room or share (shares) in them, land plots provided for individual housing construction, and land plots on which the acquired residential buildings are located, or shares (shares) in them ( paragraph 3, subparagraph 1, paragraph 1, article 212 of the Tax Code of the Russian Federation);

Banks located in the territory of the Russian Federation, for the purpose of refinancing (on-lending) of the said loans (credits) (paragraph 4, subparagraph 1, paragraph 1, article 212 of the Tax Code of the Russian Federation).

In these cases, material benefit does not arise if two conditions are met (subclause 1, clause 1, article 212 of the Tax Code of the Russian Federation):

The loan agreement states that it is provided for the purchase or construction of a specific residential property;

The borrower submitted a notification from the tax authority confirming the right to a property tax deduction for the costs of acquiring housing specified in the loan agreement. At the same time, the details of the loan agreement must be indicated in the notification (letters of the Federal Tax Service of Russia dated 11.11.2015 No. BS-4-11 / 19755 @, the Ministry of Finance of Russia dated 06.02.2015 No. 03-04-05 / 31759, decisions of the Arbitration Court of the Volga District of .2014 No. A65-21754 / 2013), and the amount of the deduction does not matter (letter of the Ministry of Finance of Russia dated January 19, 2012 No. 03-04-06 / 9-9).

We calculate the material benefit from savings on interest on ruble loans

As noted, the tax base is defined as the excess of the amount of interest on a loan (credit), calculated on the basis of 2/3 of the current refinancing rate of the Bank of Russia, over the amount of interest calculated on the basis of the terms of the agreement (subclause 1, clause 2, article 212 of the Tax Code of the Russian Federation ).

The tax rate is 35% for tax residents, 30% for tax non-residents (clauses 2, 3 of article 224 of the Tax Code of the Russian Federation).

The calculation of material benefits in this case can be represented as the following formula:

Tax base \u003d Credit (loan) amount x (Interest based on 2/3 of the refinancing rate - Interest under the terms of the agreement) x number of days for using the loan per month: 365 (366).

The amount of tax will depend on the status of the taxpayer - resident or non-resident:

As a general rule, the date of receipt of income is the date on which income is recognized as actually received for the purpose of including it in the tax base for personal income tax. The specified date is determined in accordance with Art. 223 of the Tax Code of the Russian Federation, depending on the type of income received.

From January 1, 2016, when receiving income in the form of material benefits from savings on interest for the use of borrowed (credit) funds, the date of actual receipt of income is recognized as the last day of each month during the period for which the borrowed (credit) funds are provided.

Example 1

On January 1, 2016, an employee of PJSC Alfa received an interest-free loan in the amount of 1,000,000 rubles. for a period of two months and repayment on the last day of the term. Based on the new rules, personal income tax must be withheld from his income in the amount of:

as of 31.01.2016:

(2/3 x 11% - 0%) x 31 days: 366 x 1,000,000 x 35% = 2173.95 rubles,

as of 29.02.2016:

(2/3 x 11% - 0%) x 29 day: 366 x 1,000,000 x 35% = 2033.70 rubles.

Total: 2173.95 rubles. + RUB 2033.70 = 4207.65 rubles.

Recall that before January 1, 2016, the date of receipt of income was the date of payment of interest on a loan (credit) (subparagraph 1, paragraph 2, article 212, subparagraph 3, paragraph 1, article 223 of the Tax Code of the Russian Federation of previous editions), and for interest-free For borrowings, this date was considered the date of return of borrowed funds (letters of the Ministry of Finance of Russia dated October 28, 2014 No. 03-04-06 / 54626, dated July 15, 2014 No. -282, dated February 27, 2012 No. 03-04-05 / 9-223, dated July 25, 2011 No. 03-04-05 / 6-531, dated December 25, 2012 No. 03-04-06 / 3-366, Federal Tax Service of Russia in Moscow dated 04.05.2009 No. 20-15/3/043262@, decisions of the Federal Antimonopoly Service of the West Siberian District dated 07.30.2013 in case No. A03-9886/2012, East Siberian District dated 03.27.2013 in case No. A58- 4544/12, of the Urals District dated 04.12.2012 No. F09-11970/12 in case No. A60-7752/2012). Therefore, if no interest was paid in the tax period, there was no income subject to personal income tax (letters of the Ministry of Finance of Russia dated 06/08/2012 No. 03-04-06 / 4-163, dated 02/01/2010 No. Decree of the Federal Antimonopoly Service of the Volga District dated July 19, 2012 No. A65-26834 / 2011). The foregoing was also true for the case when the interest on the loan was actually paid on a date different from that specified in the loan agreement (letter of the Ministry of Finance of Russia dated February 15, 2012 No. 03-04-06 / 6-39).

If the loan (credit) agreement provided that interest is not paid by the borrower, but is included in the amount of the principal debt, the material benefit arose on the date the interest was added to the amount of the debt (letter dated 08.10.2010 No. 03-04-06 / 6-247).

Based on the foregoing, according to the old rules, personal income tax from the employee’s income (in example 1) was subject to deduction only on the date of February 29, 2016 in the amount of 2033.70 rubles.

Law No. 113-FZ does not provide for any transitional provisions for debt obligations that arose before 2016. This means that under loan agreements issued before 2016, including interest-free loans, the income of an individual in the form of material benefit will be determined as of January 31, 2016, February 29, 2016, etc.

Thus, if in example 1 the loan is returned before January 31, 2016, the grounds for paying tax on income in the form of material benefits received from savings on interest for the entire period of use of borrowed funds under such a loan agreement are not established. That is, in the event of termination of a debt obligation (by fulfillment, forgiveness of debt and other means) not on the last day of the month, the calculation of the tax base for income in the form of material benefit for the period from the last day of the past month to the date of termination of the obligation is not provided.

Example 2

On January 1, 2016, Alfa PJSC issued a three-month loan in the amount of RUB 1,200,000. at 2% per annum to his employee (tax resident of the Russian Federation) with the condition of monthly payment of interest and 1/3 of the debt on the 5th day of the month following the expired one. Consider how much personal income tax will need to be withheld from the employee.

Personal income tax \u003d (1,200,000 x (7.33% - 2%) x 31 days: 366 days) x 35% \u003d \u003d 1896.08 rubles.

On February 5, 2016, the employee returned part of the principal and interest in the amount of 400,000 rubles. and (1,200,000 rubles x 2% x 31 days:: 366 days) = 2032.79 rubles. respectively.

Personal income tax \u003d (800,000 x (7.33% - 2%) x 29 days: 366 days) x 35% \u003d \u003d 1182.50 rubles.

On March 5, 2016, part of the principal debt was returned - 400,000 rubles. and interest in the amount of (1,200,000 rubles x 2% x 5 days: 366 days + + 800,000 rubles x 2% x 24 days: 366 days) = 327.87 rubles. + RUB 1049.18 == 1377.05 rubles;

Personal income tax \u003d (400,000 x (7.33% - 2%) x 31 days: 366 days) x 35% \u003d \u003d 632.03 rubles.

On April 5, 2016, the remaining debt was returned - 400,000 rubles. and interest accrued up to this date in the amount of (800,000 rubles x 2% x 5 days: 366 days + 400,000 rubles x 2% x (26 days + + 5 days): 366 days) = 218.68 rubles . + RUB 677.60 = 896.28 rubles.

We calculate the material benefit on foreign currency loans

If a loan (credit) is received in a foreign currency, the tax base is determined as the excess of the amount of interest on the loan (credit), calculated on the basis of 9% per annum, over the amount of interest calculated on the basis of the terms of the agreement (subclause 2, clause 2, article 212 of the Tax Code RF). Such income is taxed at a personal income tax rate of 35% (clause 2, article 224 of the Tax Code of the Russian Federation).

In the form of a formula, this rule looks like this:

Tax base \u003d Credit (loan) amount x (Interest based on 9% per annum - Interest under the terms of the agreement) x number of days of using the loan per month: 365 (366).

As in the case of ruble loans, the tax rate involved in the calculation depends on the status of the taxpayer:

Tax = Tax base x 35% (30%).

Terms of withholding personal income tax

The calculated amount of tax on income in the form of material benefits for using an interest-free loan must be withheld from the first subsequent cash payment to an individual (clause 4, article 226 of the Tax Code of the Russian Federation). The employer organization can do this when paying wages: the tax agent will deduct the accrued income tax in the form of material benefits when the wages are actually paid, but in an amount not exceeding 50% of the payment amount.

Note!

In the event that the employee fails to repay the loan after the expiration of the limitation period and the said debt is written off from the balance sheet of the organization as uncollectible, the employee will receive income in the amount of the written-off debt (subclause 5, clause 1, article 223 of the Tax Code of the Russian Federation).

Income tax reporting

Information on the income received by an individual will need to be reflected in the calculation of the amounts of personal income tax calculated and withheld by the tax agent, as well as in the certificate in the form 2-NDFL - for 2015 (approved by order of the Federal Tax Service of Russia dated November 17, 2010 No. ММВ- 7-3/611@) (clause 2 of article 230 of the Tax Code of the Russian Federation) and 6-NDFL - since 2016 (approved by order of the Federal Tax Service of Russia dated 10/14/2015 No. ММВ-7-11/450@).

In addition, if there is no payment of funds in 2016, the tax agent should be informed of the calculated but not withheld amount of tax from material benefits to the taxpayer and the tax authority no later than March 1, 2016 (clause 5 of article 226 of the Tax Code of the Russian Federation , letter of the Federal Tax Service of Russia dated 10/19/2015 No. BS-4-11 / 18217). Under such circumstances, the tax is paid by an individual on his own (Articles 228, 229 of the Tax Code of the Russian Federation).

If the tax agent does not report the impossibility of withholding personal income tax, a fine of 200 rubles may be imposed. for each unsubmitted document (clause 1, article 126 of the Tax Code of the Russian Federation).

Important!

No interest is accrued on material benefits from savings insurance premiums:

To state off-budget funds (parts 1, 3, article 7 of the Federal Law of July 24, 2009 No. 212-FZ “On insurance contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund”). A similar conclusion follows from the letters of the Ministry of Labor of Russia dated February 17, 2014 No. 17-4 / V-54 (p. 1), the Ministry of Health and Social Development of Russia dated May 19, 2010 No. 1239-19;

For compulsory social insurance against industrial accidents and occupational diseases (clause 1, article 5, clause 1, article 20.1 of the Federal Law of July 24, 1998 No. 125-ФЗ “On Compulsory Social Insurance against Industrial Accidents and Occupational Diseases”) .