Sample agreement for an interest-free loan to an employee. Sample loan agreement with an employee of an enterprise

A loan agreement with an employee of an enterprise - a sample of this document can be downloaded by the reader on our website. The deal has several nuances that it is advisable to stipulate in the text of the agreement. We will talk about this and other issues relating to the loan agreement between a company employee and an organization further in the publication.

Legislation on borrowed relations between an employee and LLC, JSC, State Unitary Enterprise, Municipal Unitary Enterprise

A sample loan agreement for an employee of an organization is almost no different from a sample of a regular loan transaction. These relations are regulated by § 1 Ch. 42 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation). However, the type of contract under consideration has a special subject composition: the employer and the employee, which makes its own adjustments.

For example, special rules on consumer loans, provided for by the Law “On Consumer Credit (Loan)” dated December 21, 2013 No. 353-FZ, do not apply to interactions between an employee and an employer. The specified source in sub. 5 p. 1 art. 3 itself excludes these persons from the scope of its action.

The deal is at the intersection of civil and labor law. In this regard, the formation of borrowed relations occurs under the influence of labor standards, for example, in the issue of deductions from wages.

How can an employee get a loan from an organization?

To receive a loan, an employee applies to the administration with an application in any form or in the form established by the enterprise. A citizen can indicate for what purpose he needs money. Then the loan becomes a targeted loan with the condition that the employer is able to control the use of the loan.

Based on the above-mentioned request, management makes a decision on granting a loan or refusing it. At the same time, the organization is free to choose the terms of a future transaction, which does not always coincide with the employee’s request. However, no one forces a citizen to enter into an agreement that is unfavorable for him.

According to Part 1 of Art. 808 of the Civil Code of the Russian Federation, a loan agreement with an employee is always concluded in writing. To confirm the transfer of money, a cash receipt order (for cash withdrawal) or a receipt and payment order (for non-cash transfer) can be issued.

Features of a loan with interest between the director and LLC, JSC. Loan for a director from a unitary enterprise

In accordance with the current legislation (Article 22 of the Law “On State and Municipal...” dated November 14, 2002 No. 161-FZ, Article 45 of the Law “On Societies...” dated February 8, 1998 No. 14-FZ, Article 81 of the Law “On joint stock..." dated December 26, 1995 No. 208-FZ) the sole executive body is an interested party. Therefore, before concluding a transaction with him, the company must notify its participants about this.

The notification must indicate:

• name of the transaction;
• who is the interested party;
• the amount of the deal;
• basic terms of the agreement and loan repayment.

If none of the participants requires agreement on the terms of the transaction, then no approval is required. But state and municipal enterprises are required to obtain permission from their owner to issue a loan to the manager (representative of the employer). An interest-free loan also exists between the director and the LLC. In this case, it is necessary to indicate in the agreement that interest is not accrued under the agreement.

Employee interest loan agreement - sample

As a general rule, a transaction is always assumed to be paid. If the interest rate is not agreed upon, it will be equal to the refinancing rate. If the agreement contains information about interest, then it can be stipulated as follows:

1. The Lender transfers funds to the Borrower in the amount of 200,000 rubles, and the Borrower undertakes to return an equal amount to the Lender.
2. Under this agreement, interest is charged on the loan amount in the amount of 0.5% of the principal amount remaining on the payment date for each month of use.
3. Interest and part of the principal amount in the amount of 20,000 rubles are paid monthly, on the 10th day of each billing month.

A complete sample of a loan interest agreement with an employee can be downloaded on our website.

Interest-free loan agreement with an employee - sample

An organization can also enter into an interest-free loan agreement with an employee. Then the document should explicitly indicate this. For example, as in the excerpt below from a sample interest-free loan agreement with an employee:

1. Subject of the agreement:

   1.1. The Lender transfers funds to the Borrower in the amount of 200,000 (two hundred thousand) rubles, and the Borrower undertakes to return an equal amount to the Lender.

   1.2. The parties have agreed that this loan agreement is interest-free.

A complete sample of an interest-free loan agreement can be downloaded on our website.

An interest-free loan agreement with an employee does not entail a tax burden for the organization. However, the borrower will be required to pay personal income tax for saving on interest due to subclause. 1 clause 1 art. 212 of the Tax Code of the Russian Federation. The employer will calculate, withhold and pay this tax.

So, issuing loans to an organization’s staff is a common practice among socially oriented employers. However, the text of the agreement differs only slightly from a regular loan. However, when drawing up a document, you can take into account some features due to the nature of the labor relations of the parties to the transaction.

Providing funds for use by full-time employees of an organization is one of the measures of social support.

Often, issuing money on loan terms is used by administrative resources as a tool to reduce the tax burden. In any case, the legislation does not establish monetary debt as the prerogative of credit institutions.

The contract specifies essential terms, such as the interest rate for use and the installment period. The requirements of such an agreement are always beneficial to existing employees.

The use of such a tool at an enterprise helps not only to attract new successful employees, but also to retain true masters of their craft who have financial difficulties.

What should be contained in a loan agreement with an employee?

Receiving material benefits on the employer’s terms must be accompanied by conditions that are reflected in a special agreement:

• the form of the contract is only written, since the provision of money for use comes from the assets of the company (legal entity);
• the effective date of the document usually coincides with the day the employee actually receives the money;
• the amount of borrowed funds is established by agreement. Current legislation does not establish restrictions on the size of the loan. At the same time, for large loans, the employee should formalize the decision of the company’s participants. A meeting of founders will be appropriate if it is planned to transfer funds in the amount of more than a quarter of the enterprise’s assets;
• loan currency. Usually rubles. Only credit organizations have the right to issue borrowed funds in foreign currency equivalent;
• the amount of interest for the use of company funds. Often, employers provide interest-free loans to their employees. This condition is essential, therefore it is in the contract that the phrase “no interest is accrued” should be clearly formulated. Otherwise, the use of money will be subject to the provisions of the Civil Code (refinancing rate);
• The procedure and terms for repayment of the debt are established by agreement of the parties. In this case, the employee can either independently pay mandatory payments or receive wages minus monthly deductions. The terms of the agreement may provide for cases of establishing requirements for early repayment of debt.

The written form of a loan agreement with an employee can be arbitrary. At the same time, if the enterprise has a practice of issuing funds for temporary use, the type of contract agreed with the accounting department should be used.

You should not neglect to indicate the purpose of issuing money, since this will directly affect the tax regime under which the issued loan falls.

Personal income tax when providing a loan

Correct registration of monetary relations between the administration of the enterprise and the employee implies the determination of material benefits for each of the parties. If the employee saves on interest less than 2/3 of the refinancing rate, the loan is subject to taxation.

• monthly in the case of an interest-bearing loan;
• one-time, if no interest is established. Personal income tax is calculated on the day the entire amount of the debt is repaid.

Exemption from income tax under a loan agreement with an employee is possible if the employee uses earmarked funds for the construction of a residential building, the purchase of other housing or land. In this case, the direction of use of money must be formulated in the terms of the document.

Note

In order to be exempt from personal income tax at the place of work, an employee provides a notification from the tax office about obtaining the right to a property deduction.

The employer retains the right.

We carry out the transaction carefully

Of course, every economic entity has the right to determine budget policy and distribute profits. Issuing loans to employees is a significant competitive advantage in the employer market.

To ensure that loans do not come under the special attention of regulatory authorities, you should adhere to the following simple rules:

• a company that practices issuing interest-free loan agreements for its employees should not have tax arrears;
• an employee applying for financial assistance for the construction of real estate must be officially registered under the Labor Code;
• if the loan exceeds 600 thousand rubles, the transaction is controlled by auditors.

There are no special requirements for borrowers in the legislation. Monetary relations between the lender (legal entity) and the beneficiary under loan agreements are regulated by Article 42 of the Civil Code.

General rules for granting loans are regulated by the Civil Code. The agreement implies that one party, called the lender, will transfer money or other things that are determined by generic characteristics to the other party. In response, the borrower undertakes to return the same amount to the lender, and if things were transferred, an equal amount of other received things of the same kind and quality. This is the loan amount. The general rule specified in paragraph 3 of Article 809 of the Civil Code tells us that the loan agreement, where the subject was things defined by generic characteristics, will be interest-free, unless the parties agree otherwise. Thus, the Civil Code directly allows the conclusion of interest-free loan agreements. Taking advantage of this opportunity, legal entities often provide loans to their employees.

Simple form

In this case, the loan agreement must be concluded in simple written form, since this is one of the mandatory conditions of this type of contract. In addition, the loan agreement must indicate its amount - without this, the agreement is not considered concluded. It is also necessary to indicate whether the loan is interest-bearing or interest-free. Moreover, if the loan agreement between the company and the employee does not provide for the terms on the accrual of interest on the loan amount, this does not mean that the loan for the employee will be interest-free, since in the absence of a term in the agreement on the amount of interest, their amount is still determined according to the existing place of residence of the lender and the bank interest rate on the day the borrower pays the amount of the debt or its corresponding part (clause 1 of Article 809 of the Civil Code of the Russian Federation). Russian tax legislation provides for a rule according to which, if an employee has received an interest-free loan or interest under a loan agreement, expressed in rubles, is less than 2/3 of the refinancing rate, then he has a material benefit from saving on interest (subclause 1. clause 1 of Art. 212 of the Tax Code of the Russian Federation). From this amount, the company, as a tax agent, must withhold personal income tax at a rate of 35 percent in accordance with paragraph 2 of Article 224 of the Tax Code. If the loan is issued to a non-resident, then the personal income tax rate is 30 percent (clauses 2 and 3 of Article 224 of the Tax Code of the Russian Federation). In this case, the specified rate will be applied even if the material benefit arose from a non-resident who is a highly qualified specialist. And the total amount of withholding tax should not exceed 50 percent of the payment amount.

Calculation procedure

Benefit from savings

Back in the letter of the Ministry of Finance dated October 28, 2014 No. 03-04-06/54626, the department formulated the point of view according to which, if an organization that issued a loan to its employee forgives him the debt, then the debtor is relieved of the obligation to repay the amount of the debt and such debtor is already may dispose of funds at his own discretion. At the same time, he, of course, receives income - the amount of forgiven debt under the loan agreement, which is subject to taxation according to the general rules. But in this case, the taxpayer does not receive income in the form of material benefits from saving on interest for using an interest-free loan (see letters of the Ministry of Finance of the Russian Federation dated December 5, 2011 No. 03-04-06/6-334, dated December 1, 2010 No. 03-04-06/6-279).

The courts also agree with the opinion expressed. For example, the Supreme Court of the Russian Federation, having assessed the evidence presented in the case file, indicated that when a loan is forgiven to individuals, an economic benefit arises in the form of the amount of debt forgiven by the company, and, accordingly, income is subject to personal income tax from the moment the debt is written off (Decision of the Supreme Court of the Russian Federation dated February 27, 2015 in case No. A40-128842/13). However, writing off an employee's bad debt as an expense is risky, since tax authorities may remove such expenses, considering them unjustified. Their argument will be that providing loans to employees does not have an economic component.

Insurance issue

Certain questions arise in connection with the payment of insurance premiums. At the moment there is no clear position supported by judicial practice on this issue. For example, in their early letters, officials explained that the amount of forgiven debt should be considered as a payment within the framework of labor relations, therefore it should be included in the base for calculating insurance premiums (letters of the Ministry of Health and Social Development of Russia dated May 21, 2010 No. 1283-19, dated May 17, 2010 No. 1212-19, FSS of the Russian Federation dated November 17, 2011 No. 14-03-11/08-13985). Today, the tax department takes the exact opposite position, which is based on the new Chapter 34 of the Tax Code of the Russian Federation, dedicated to insurance premiums.

Thus, in particular, the letter of the Federal Tax Service dated April 26, 2017 No. BS-4-11/8019 states that, in accordance with paragraph 4 of Article 420 of the Tax Code, payments and other remuneration within the framework of civil contracts are not recognized as subject to insurance contributions. the subject of which is the transfer of ownership or other proprietary rights to property, and agreements related to the transfer of property rights, with the exception of author's order agreements, agreements on the alienation of the exclusive right to works of science, literature, art, publishing license agreements, license agreements on the grant of rights use of works of science, literature, art. Thus, in the event of termination of the employee’s obligations to repay funds under the loan agreement, the amount of unrepaid debt is not subject to insurance premiums.

Summarizing what has been said, I note that if an employee who is a resident of the Russian Federation received an interest-free loan or the interest on the loan agreement is less than 2/3 of the refinancing rate, then he has a material benefit taxed at a rate of 35 percent. The company, as a tax agent, must calculate personal income tax from the amount of material benefit and transfer it to the budget. In this case, income in the form of material benefits is determined monthly.

note

If an employee received an interest-free loan or the interest on the loan agreement is less than 2/3 of the refinancing rate, then he receives a material benefit taxed at a rate of 35 percent. The company, as a tax agent, must calculate personal income tax from the amount of material benefit and transfer it to the budget.

It is worth noting that in addition to these difficulties with taxation, the company faces difficulties associated with credit risks. In essence, an employer that is not a financial company will be engaged in non-core activities when issuing loans to employees. This means that management will have to hire employees involved in loan calculations, and also be prepared for the fact that some loans will not be repaid. At the same time, such employer opportunities are a good indicator of its stability. As a result, employee loyalty can be a very profitable business move for a company, which can use credit instruments as incentives and motivation. In any case, each company decides independently whether to issue loans or not, after weighing all the pros and cons of such operations.

In accordance with the loan agreement, one party (the lender) transfers into the ownership of the other party (the borrower) money or other things defined by generic characteristics, and the borrower undertakes to return what was received under the agreement (clause 1 of Article 807 of the Civil Code of the Russian Federation).

We will tell you in our consultation what entries are made in the lender’s accounting for the loans provided.

Accounting for issued loans: postings

The accounting entries for loans will depend on whether the loan is recognized as a financial investment for the lender.

We discussed it in a separate consultation.

In relation to a loan, only an interest-bearing loan will be considered a financial investment. If the loan is issued without interest, then it will be recorded not in the financial investment account, but in the settlement account.

For loans issued, the entries will be as follows (Order of the Ministry of Finance dated October 31, 2000 No. 94n):

A loan in non-monetary form is subject to VAT from the lender (clause 1, clause 1, article 146, clause 15, clause 3, article 149 of the Tax Code of the Russian Federation). Therefore, when providing a non-cash loan, the lender must charge VAT:

Loan repayment: postings

If for loans issued in accounting entries the accounts of the property transferred on loan are credited, then upon return these accounts are debited, i.e. reverse entries are made:

Loan to employees: postings

When providing interest-bearing loans to employees of an organization, both account 58 and a special account can be used to record settlements with personnel for other operations, account 73 “Settlements with personnel for other operations”:

Which account to use, 58 or 73, the organization determines independently and consolidates this order in its.

Accordingly, repayment of loans will be reflected in reverse entries:

Interest-free loans to employees are always reflected in account 73.

Interest on short-term loans: postings

Regardless of whether the loan is long-term or short-term, the accrual of interest on it will be reflected in the following entries.

If a company makes an interest-free loan to an employee, the tax consequences for it in 2017 are determined by whether the employee repays the borrowed funds or the debt is forgiven.

How is the benefit from saving on interest on an interest-free loan taxed?

In a situation where interest-free loan to an individual from a legal entity person, the individual receives income in the form of material benefits from savings on interest. Such income is subject to taxation Personal income tax in 2017 year on a general basis.

We remind you that such savings on interest, subject to personal income tax, arise in the following cases (subclauses 1, 2, clause 2, article 212 of the Tax Code of the Russian Federation):

• if a company or individual entrepreneur issued a loan to an individual, the interest rate on which does not exceed 2/3 of the Central Bank refinancing rate;
• if an individual received a loan in foreign currency, the interest rate on which does not exceed 9%;
• an individual received an interest-free loan - the situation discussed in the article.

Please note that the concept of “material benefit” applies only to interest under the agreement accrued for the use of borrowed funds.

This concept does not apply to interest applied as penalties accrued for late repayment of a loan (as financial liability) (letter of the Ministry of Finance of Russia dated November 13, 2012 No. 03-04-06/4-317).

Exceptions to the general rule or when savings on loan interest are not subject to personal income tax

In some cases, within loan, provided an individual from a legal entity, income received by an individual in the form of savings on interest is not subject to taxation Personal income tax. IN 2017 This is possible in two cases:

• if the loan was issued for new construction or acquisition in the territory of the Russian Federation of a residential building (rooms or shares in them), as well as land plots for individual housing construction or plots with houses located on them;
• if the loan was issued by a bank located on the territory of the Russian Federation for the purpose of refinancing (on-lending) such a loan.

The question often arises regarding a loan received by an individual from an LLC: what are the restrictions? There are no restrictions here. The limit on cash payments is 100 thousand rubles. per agreement established by Bank of Russia Directive No. 3073-U dated October 7, 2013, applies only to participants in cash payments (legal entities and individual entrepreneurs).

How is the amount of interest saved on a loan issued to an employee taxed?

When the company issued interest-free loan to employee, calculate tax consequences in 2017 year is not difficult. The company’s responsibilities after issuing an interest-free loan to an employee are as follows:

• you need to charge personal income tax on the amount of interest saved on the last day of each month throughout the entire period for which the loan was issued. The personal income tax rate is 35%;

Use the "" service to calculate personal income tax on the amount of interest saved on an interest-free loan.

• in addition, you need to withhold the calculated tax from any income of this individual, but remember that the withheld amount of personal income tax should not exceed 50% of the income paid;
• Finally, the next day after the amount of personal income tax was withheld from income, you need to transfer personal income tax to the budget.

Tax consequences for personal income tax if a company decides to forgive an employee’s debt

If a company decides to forgive an employee’s debt, then the personal income tax accrued on the amount of material benefit from the saved interest does not disappear anywhere. It must continue to be withheld from the employee’s income until the entire tax amount has been exhausted.

In addition, the forgiven debt itself is subject to personal income tax, but at a rate of 13% (clause 1 of article 210, clause 1 of article 224 of the Tax Code of the Russian Federation). In this case, the tax can be charged either on the date of transmission of the notice of debt forgiveness, or on the date of signing the agreement on donation of funds (the moment of forgiveness).

Ultimately, the company will have to withhold from the employee’s income:

• tax on the amount of forgiven debt;
• tax on material benefits in the form of saved interest, accrued at the time of forgiveness;
• as well as personal income tax on the income itself paid to an individual.

It must be remembered that the total amount of personal income tax withheld should not exceed 50% of the income paid. And if there is not enough income to withhold the entire personal income tax, at the end of the year, before March 1, you need to inform the tax authority about the impossibility of withholding tax by drawing up a 2-NDFL certificate with item 2. Below we have provided a sample of such a certificate.