An individual issued an interest-bearing loan (Loan-1) legal entity(Companies). Amount - 20 million rubles. Duration - 2 years. Interest is charged at a rate of 15% per annum on the actual balance of the debt. The Company repays the principal debt to an individual in several tranches. Payment by the Company to an individual of accrued interest is made after full repayment of the principal debt.

Question 1 :

Is issuing Loan-1 a business activity for an individual? If so, is it a business activity for the Company to return the principal debt to an individual in a single tranche and lump sum payment accrued interest?

Answer :

As follows from paragraph 1 of Art. 23 Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), a citizen has the right to engage in entrepreneurial activity without forming a legal entity from the moment state registration as an individual entrepreneur.

In accordance with paragraph 1 of Art. 2 of the Civil Code of the Russian Federation, entrepreneurial activity is an independent activity carried out at one’s own risk, aimed at systematically generating profit from the use of property, sale of goods, performance of work or provision of services by persons registered in this capacity in established by law ok.

However, the Civil Code of the Russian Federation does not have clear criteria for determining that a particular type of activity of an individual is systematic in nature, and, as a consequence, leads to the obligation to register as an individual entrepreneur. Moreover, the legislation does not define the concept of “systematic”.

Thus, in order to talk about the income received belonging to entrepreneurial activity, it is necessary to prove the very fact of the existence of such activity.

As we understand from the description of the situation, the individual is not registered as an individual entrepreneur and the issuance of a loan to the Company is of a one-time nature.

Under such circumstances, in our opinion, it is quite difficult to qualify the receipt of interest on loan-1 as income from business activities, because a single loan operation cannot be called a systematic activity.

The Letter of the Ministry of Finance of the Russian Federation dated December 28, 2012 No. 03-04-05/10-1454 states the following:

“The presence of signs of entrepreneurial activity in a citizen’s actions is evidenced, in particular, by the following facts:

• production or acquisition of property for the purpose of subsequent profit from its use or sale;
• accounting business transactions related to transactions;
• interconnectedness of all committed by a citizen V certain period timing of transactions;
• stable connections with sellers, buyers, and other counterparties."

In paragraph 13 of the Plenum Resolution Supreme Court RF dated October 24, 2006 No. 18 “On some issues that arise for courts when applying the Special Part of the Code Russian Federation about administrative offenses" it is stated that:

« individual cases providing services by a person not registered as an individual entrepreneur do not constitute an administrative offense, provided that the volume of services provided and other circumstances do not indicate that this activity was aimed at systematically making a profit.”

Judicial practice shows that arbitrators proceed from the factual circumstances of the cases under consideration and the presence of indisputable evidence of business activity. There are decisions both in favor of individuals and in favor of tax authorities.

Thus, in our opinion, the issuance of one loan cannot be qualified as entrepreneurial activity, and, accordingly, income in the form of interest received will not be income from entrepreneurial activity.

The Central Bank will increase fines for illegal extradition urgent loans to Russians

The Central Bank announced work on bills that will increase penalties for illegally issuing loans to the population. The new laws will increase fines, criminalize “shadow” lending and deprive illegal lenders of the right to collect debts from borrowers through the courts. Such steps, according to the regulator, will significantly reduce the number of “black” lenders.

The Central Bank plans to implement these measures through three bills. The first of them will introduce three types of liability for illegal lending instead of the current one: in the first case of recording illegal issuance of loans, companies responsible for the violation will be subject to a fine of up to 500 thousand rubles, and officials - up to 50 thousand rubles. For the second prosecution, the fine will increase to 2 million rubles for companies and up to 200 thousand rubles for officials, and for the third – up to 5 million rubles and 500 thousand rubles, respectively.

The second bill will supplement the criminal code with an article that provides for imprisonment for up to 2 years for illegal lending. Such punishment will await the organizers of companies who were brought to trial three times. administrative responsibility for illegal issuance of urgent loans.

The third innovation will deprive “shadow” creditors judicial protection, which will make illegal lending more risky and less profitable. After this law comes into force, illegal lenders will not be able to demand repayment of loans issued through the courts. Thus, “black” credit institutions will have to rely only on the integrity of borrowers, because they will have to collect debts in judicial procedure they won't be able to.

Participants in the credit market consider the planned innovations of the Central Bank necessary, because Current penalties for illegal lending are too lenient and do not have sufficient impact on credit fraudsters. Only tightening of liability measures can change the situation on the market in better side. However, while these bills are at the development stage, citizens need to be able to independently recognize “shadow” creditors.

Before applying for a microloan from an MFO without collateral or guarantors, you should find the credit institution on the Central Bank website and check whether it is registered in the state register. If not, then you should not cooperate with such a company.

Hello. Both individuals and legal entities can act as lenders, because no such restrictions are provided current legislation RF. The sequence of transfer of funds from an individual to an enterprise is regulated. Regardless of who the lender is, whether he by an outsider, the founder of the enterprise or an employee of this company, the sequence of processes for obtaining and repaying a loan remains unchanged for all individuals. The loan agreement must indicate that the lender (individual) transfers to the borrower (enterprise) financial resources. In turn, the borrower undertakes to repay the lender full amount loan (Article 807 of the Civil Code of the Russian Federation). The agreement comes into effect legal force from the moment of transfer Money. In accordance with Art. 809 of the Civil Code of the Russian Federation, a loan agreement may contain a clause indicating the type of loan: interest-bearing or interest-free. If the loan is interest-free, then such a clause is required. By default, if another option is not mentioned in the loan agreement, the interest-free debt can be repaid ahead of schedule, and this does not require the consent of the lender (clause 1 of Article 810 of the Civil Code of the Russian Federation). In the case where the loan was made at interest, the permission of the lender is required for early repayment. Also return conditions interest-bearing loan may be specified in advance in the loan agreement. In cases where the lender (individual) provides cash or material resources to the borrower only to achieve specific goals outlined in the agreement, such a loan is targeted. The borrower undertakes to provide the lender with the opportunity to control the expenditure of borrowed funds in accordance with the purposes specified in the agreement (Article 814 of the Civil Code of the Russian Federation). The loan transfer transaction must be recorded in a simple writing provided that either party is a legal entity. That is, we can say that such a transaction is subject to mandatory sealing by an agreement drawn up in in writing(Clause 1 of Article 16 of the Civil Code of the Russian Federation). There are several ways to transfer borrowed funds from the lender to the borrower. These include, first of all, the possibility of implementing bank transfer to the enterprise's current account, as well as payment of the loan amount through the organization's cash desk. If the lender transfers funds through the enterprise's cash office, then the enterprise, in turn, transfers them to the bank for subsequent replenishment of its current account. If such an operation is not carried out within a predetermined period, and the money is in the cash register for more than the allotted time, then the enterprise and its managers risk being brought to administrative liability.

28 August 2013, 06:46, question No. 197164 Natalya, Yuzhno-Sakhalinsk

Client clarification

To clarify: loans are issued against collateral real estate. The pledge agreement is registered with the Federal Registration Service. And another clarification: does the activity of issuing loans fall under the laws regulating consumer loans and is it enough for a citizen to register as an individual entrepreneur? pitfalls in the form of the inability to engage in this type of activity without forming a legal entity?

banking activity, loan agreement, loan agreement between individuals, illegal banking activity

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Lawyer, Kirov

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Good day, Natalia.

1. Obliged, since this activity (issuing loans at interest) is entrepreneurial. Entrepreneurship, entrepreneurial activity- economic activity aimed at systematically generating profit from the production and/or sale of goods and provision of services.

2. Basic law, on which entrepreneurial activity is based, is Federal Law No. 209-FZ of July 24, 2007 “On the development of small and medium-sized businesses in the Russian Federation.”


3. An entrepreneur must choose a taxation system from the tax authority:

• 6% from income received,
• or 15% of the difference between income and expenses.
4. Register, choose a tax system and pay taxes. That's it, you can sleep peacefully.

I hope the information was useful to you, sincerely Dmitry Gusev.

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  Lawyer, Kirov

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  Registering with the Federal Registration Service is another reason to conduct this activity legally. If you need additional advice, clarification of the procedure for registering as an individual entrepreneur, preparation of documents, I will be happy to help.

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  Lawyer, Chelyabinsk

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  Good day, Natalia!

  An individual entrepreneur cannot carry out activities of issuing loans.

  The activity you indicated is regulated by Federal Law No. 151-FZ of July 2, 2010 “On microfinance activities and microfinance organizations.”

  From the moment this Federal Law comes into force, only legal entities have the right to carry out microfinance activities.

  Article 2. Basic concepts used in this Federal Law

  1. For the purposes of this Federal Law, the following basic concepts are used:

  1) microfinance activity - the activity of legal entities having the status of a microfinance organization, as well as other legal entities entitled to carry out microfinance activities in accordance with Article 3 of this Federal Law, to provide microloans (microfinance);

  2) microfinance organization - legal entity, registered in the form of a foundation, autonomous non-profit organization, institutions (except budgetary institution), non-profit partnership, economic society or a partnership carrying out microfinance activities and entered into the state register of microfinance organizations in the manner prescribed by this Federal law;

  3) microloan - a loan provided by the lender to the borrower on the terms provided for by the agreement loan, in an amount not exceeding one million rubles;

  Code of Administrative Offenses of the Russian Federation Article 15.26.1. Violation of legislation on microfinance activities
  

  Violation by a microfinance organization mandatory requirements, established by law of the Russian Federation on microfinance activities and microfinance organizations, entails a warning or imposition administrative fine for legal entities in the amount of ten thousand to thirty thousand rubles.
  

  (introduced by Federal Law dated July 5, 2010 N 153-FZ)

  Best regards, Vladislav Bykov

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  Good afternoon!

  in accordance with Article 2 of the Civil Code of the Russian Federation, entrepreneurial activity is understood as independent activity carried out at one’s own risk, aimed at systematically extracting profit from the use of property, sale of goods, performance of work, provision of services by persons registered in the prescribed manner.

  The activity of regularly issuing loans to individuals is entrepreneurial, since it is associated with the systematic receipt of profit, and therefore you need to register as an individual entrepreneur.

  For violation of this obligation, you may be brought to administrative liability (Article 14.1 of the Code of Administrative Offenses of the Russian Federation), criminal liability(Article 171 of the Criminal Code of the Russian Federation, there must be major damage RUB 1,500,000), tax liability(according to Article 116 of the Tax Code of the Russian Federation - evasion of registration)

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  Lawyer, Kirov

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  No one prohibits individual entrepreneurs from entering into loan agreements; this right is guaranteed to any person by the Civil Code.

  The Civil Code of the Russian Federation, which regulates relations between persons engaged in entrepreneurial activities or with their participation, proceeds from the fact that entrepreneurial activity is an independent activity carried out at one’s own risk, aimed at systematically obtaining profit (income) from the use of property, sale of goods, performance of work or provision of services by persons registered in this capacity in the manner prescribed by law.
  Based on the above definition, it follows that entrepreneurial activity is characterized by a number of characteristics. The first of these is carrying out activities for the purpose of generating income. Each owner of property (money is recognized movable property according to Art. 130 of the Civil Code of the Russian Federation) has the right to freely dispose of it at his own discretion for his own benefit, which is expressed, as a rule, in fruits and income from property (Article 209 of the Civil Code of the Russian Federation). The second sign is the systematic nature of income generation. IN tax legislation the concept of systematicity (two or more times during calendar year) is given in Article 120 of the Tax Code of the Russian Federation. The third sign of entrepreneurial activity is activity at one’s own risk, that is, engaging in such activity involves not only economic independence, but also independent responsibility for its results, since its implementation may result in unfavorable property consequences.
  In accordance with paragraph 10 of Article 208 of the Tax Code of the Russian Federation, for the purposes of calculating personal income tax, income from sources in the Russian Federation includes, among other things, other income received by the taxpayer as a result of his business activities in the Russian Federation. Such income should also include interest received under loan agreements concluded with individuals. Preferential order taxation established by Article 217 of the Tax Code of the Russian Federation does not apply to the income of individuals in the form of interest received under loan agreements concluded between individuals. Thus, the activities of an individual entrepreneur carrying out retail trade and transferred to the payment of a single tax on imputed income, the issuance of funds under a loan agreement to individuals at a certain percentage, in accordance with the norms of the Civil Code of the Russian Federation, is entrepreneurial, since it is not prohibited by law. Consequently, income received from this activity is subject to taxation on personal income tax in accordance with Articles 227 and 229 of the Tax Code of the Russian Federation. Provided tax is paid on this income, the tax office will have no claims.
  

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  If you still have doubts about the right to engage in this activity, you can read the explanations of the Department of Tax and Customs Tariff Policy of the Ministry of Finance of the Russian Federation:

  To carry out entrepreneurial activities, an individual must register as an individual entrepreneur without forming a legal entity, indicating the types of activities that he intends to carry out, according to All-Russian classifier species economic activity.
  The application for state registration of an individual as an individual entrepreneur shall indicate all types of economic activities that will be engaged in by the individual registered as an individual entrepreneur. Also, an individual entrepreneur has the right to make changes to the list of types of economic activities that he plans to engage in by filling out the appropriate form on the types of economic activities subject to inclusion in the Unified State Register individual entrepreneurs, and/or about the types of economic activities subject to exclusion from the Unified state register individual entrepreneurs.
  Income from activities falling under the type of activity specified by the individual entrepreneur upon registration or as a result of making appropriate changes is recognized as income received from business activities.
  At the same time, accounting for income received from business activities must be carried out by an individual entrepreneur separately from income received outside the framework of such activities.
  In the event that a simplified taxation system is applied to income received from business activities, such income is exempt from taxation by personal income tax on the basis of paragraph 24 of Article 217 Tax Code of the Russian Federation (hereinafter referred to as the Code).
  Offset or refund of overpaid taxes is carried out in the manner prescribed by Article 78 of the Code.
  The list of banking operations, the implementation of which requires obtaining a license from the Bank of Russia, is defined in part one of Article 5 of Federal Law No. 395-1 of December 2, 1990 “On Banks and Banking Activities” (hereinafter referred to as Federal Law No. 395-1). The said license can only be issued to a person who has the status credit organization and registered in the manner established by Federal Law N 395-1.
  Federal Law No. 395-1 includes banking operations involving operations to attract funds from individuals and legal entities into deposits (on demand and on deposit). certain period) and placement of the specified raised funds on its own behalf and at its own expense. The main features of these operations are their implementation in relation to an indefinite number of legal entities and (or) individuals for the sole purpose of their further placement on the terms of repayment, urgency, payment on their own behalf and at their own expense.
  The operation of providing loans in accordance with Article 5 of Federal Law N 395-1 is not classified as banking transactions. The legislation does not establish special composition subjects of the loan agreement, regulated by articles 807 - 818 of the Civil Code of the Russian Federation. Providing loans does not require obtaining a license from the Bank of Russia to carry out banking operations. However, the legislation does not determine the sources of funds that can be used to provide loans.
  Based on this, an individual entrepreneur applying a simplified taxation system has the right to provide loans, both from the proceeds received from the sale of goods (works, services), and from other funds owned by him.
  

  Sincerely, Dmitry Gusev.

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  Good day, Natalia!
  

  I fully support the opinion of my colleague Vlaislav and in addition note:

  Indeed, it can be assumed that microfinance services are commercial activity and bring it under individual entrepreneurship, but from the moment the Federal Law of July 2, 2010 No. 151-FZ “On microfinance activities and microfinance organizations” came into force, such activities can be carried out by legal entities having the status of a microfinance organization.

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  Lawyer, Volgograd

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  Natalya in itself, the activity of issuing a loan is not entrepreneurial; you can help out a friend or relatives once a year or even more often, although you will receive income from this, but you do not need to become an individual entrepreneur for this. Income received in this way is subject to tax from individuals.

  In Art. 2 of the Civil Code of the Russian Federation provides a definition of entrepreneurial activity:

  entrepreneurial activity is an independent activity carried out at one’s own risk, aimed at systematic Receiving a profit from the use of property, sale of goods, performance of work or provision of services

  those. This is not just an activity aimed at making a profit, it is a systematic activity.

  You write

  The essence of the question: a citizen is an individual, regularly issues loans at interest to other citizens.
  

  Accordingly, your activity fully fits the legal definition of entrepreneurial activity.

  In addition to taxes, you as an individual entrepreneur will be required to start paying the appropriate insurance premiums V Pension Fund, regardless of whether you carried out activities, made a profit or not.

  What normative act should he be guided in his activities?
  

  IN in this case you must be guided Civil Code RF.

  According to the third paragraph of paragraph 1 of Art. 49 Civil Code of the Russian Federation

  A legal entity may engage in certain types of activities, the list of which is determined by law, only on the basis special permission(licenses).

  At the same time, the Loan Agreement is regulated by paragraph 1 of Chapter 42 of the Civil Code of the Russian Federation. This chapter does not limit the possible subject composition of this agreement, its parties - the lender and the borrower - can be any person.

  In addition, Federal Law dated May 4, 2011 N 99-FZ “On licensing individual species activities”, nor any other laws require obtaining a license to issue loans.
  

  According to the letter of the Ministry of Finance of Russia dated 06/01/2010 N 03-11-10/67
  

  operation to provide loans in accordance with Art. 5 of the Law on Banks is not related to banking operations and the legislation does not determine the sources of funds that can be used to provide loans. Therefore, according to the Russian Ministry of Finance, an individual entrepreneur applying a simplified taxation system has the right to provide loans, both from the proceeds received from the sale of goods (works, services), and from other funds belonging to him by right of ownership.

  Thus, your activity does not require licensing, but there are subtleties, namely, the distinction between the Loan Agreement and the Credit Agreement.
  

  The question of the differences between these agreements in jurisprudence is debatable.

  If we talk about the position of the Supreme Arbitration Court RF, then it is formulated in paragraph 4 of the letter dated 08/10/1994 N S1-7/OP-555, according to which

  the activity is not recognized as banking and does not require a license, that is, the transfer of funds at interest is not recognized as a loan if the organization transfers to the borrower your available funds and such activities are not expressly prohibited by law and is not systematic character.

  
  Thus, issuing loans at the expense of borrowed money may be qualified as issuing loans without a license, and, therefore, may be qualified under Article 172 of the Criminal Code of the Russian Federation as illegal banking activity), especially if such activity is carried out as the main
  

  Accordingly, even if you register as an individual entrepreneur and systematically issue loans, the risk of classifying your activities as illegal banking remains.

  Naturally, only a court can decide this issue in fact, but you must assess all the risks.
  

  Eat organizational forms, which allow you to systematically issue loans and not fall under banking activities- these are organizations operating in accordance with the Federal Law of July 2, 2010 N 151-FZ “On microfinance activities and microfinance organizations”.

  Microfinance activities in accordance with paragraphs. 1 clause 1 art. 2 of the said Law is the activity of legal entities, having the status of a microfinance organization, as well as other legal entities entitled to carry out microfinance activities in accordance with Art. 3 of Law N 151-FZ, on the provision of microloans (microfinance).

  According to clause 3, part 1, art. 2 of the Microfinance Law.
  

  Microloans include loans worth less than one million rubles

  
  

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  As for the ability of individual entrepreneurs to issue loans to individuals, this activity in itself does not contradict the law. In accordance with the Civil Code of the Russian Federation, any lender can be capable citizen, including those unregistered as an individual entrepreneur.

  However, if the activity of issuing loans becomes the main activity, then it is possible that it may be classified by regulatory authorities as illegal banking activity.

  If you intend to engage in such activities as your main activity, then it is better to create an LLC.

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  Lawyer, Chelyabinsk

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  According to professional market participants - information portal“Microfinance in Russia” everyone who issues loans on a systematic basis is required to register as an MFO.

If an individual issues microloans

Andrey Paranich, director of SRO NP "MiR", answers journalist Yulia Siebert's questions about the nuances of microfinance activities, in particular, about the situation when an individual is engaged in issuing loans and making a profit from this process.

There are projects online where individuals provide loans to each other. As far as I understand, some people do this on permanent basis. Someone only once offered their services as a lender. Should such individuals register an MFO or are their activities not subject to the requirements of the microfinance law?

Indeed, today there are several online platforms that allow individuals to lend to each other. Indeed, at first glance, such a scheme exempts all participants in the process from liability. Lending by one an individual another is not subject to the law on consumer lending: a professional lender can be a company or individual entrepreneur, but not an individual. However, according to the standards Russian law systematic activity for the purpose of making a profit is a business activity that requires registration. Consequently, a citizen who regularly lends to other citizens violates the law on entrepreneurial activity, for which he can be fined.

Thus, lending money to friends, acquaintances or colleagues is not prohibited, but the systematic activity of issuing loans is an entrepreneurial activity. Consequently, having put loans on stream, a citizen is faced with the need to register as an entrepreneur, which in turn makes him a professional lender, obliged to comply with all provisions of the law “On Consumer Lending”.

It is worth mentioning that p2p lending platforms often choose a different form of work. Formally, the loan is issued by the microfinance organization, which then assigns the debt to the individual under an assignment agreement. Thus, the individual becomes the buyer of the loan rather than the lender. This form of work also does not allow us to comply with all the requirements of the law “On consumer credit", in particular - the provision on mandatory transfer data in BKI. Let’s assume that such an MFO issued a loan to a citizen and, in accordance with the law, transferred information about the loan to the BKI. Then the MFO ceded the loan to a real lender - an individual, who already received the loan body and interest from the borrower. However, an individual cannot transfer information about loan repayment to the BKI - today there is no practice of signing in the market relevant agreements between BKI and individuals. Since return information is not transmitted to BKI, given debt after some time it becomes overdue. Perhaps over time this issue will be resolved, but currently a borrower who receives a loan under such a scheme risks ruining his credit history.

Are there any penalties for those who issue loans “under the table”? Which ones, if so? And can an individual issuing loans be fined? Or only individual entrepreneurs and LLCs? And who can initiate such a fine?

Fines for issuing loans, provided by law on consumer credit, apply only to legal entities and individual entrepreneurs. They amount to 500 thousand rubles.

An individual who lends money may be fined for conducting illegal business activities. Responsibility for illegal business provided for by the Code of Administrative Offenses and the Tax Code.

If we talk about creating an MFO, how expensive is it, in your opinion, who can help in this matter? Do you advise aspiring microfinance professionals? Where can I go for advice on creating an MFO and complying with the law? How much does a consultation cost?

The process of registering an MFO itself is not very expensive: to do this, you need to register a company (for example, an LLC) and submit documents to the Bank of Russia to include the company in the Register.

But in the future, MFO owners need to ensure compliance various laws: “On combating legalization (laundering) of income received criminally, and the financing of terrorism”, “On personal data”, “On microfinance activities”, “On consumer credit”... In order to comply with the requirements of the laws and maintain the work of the company, the company must have employees performing the functions provided for by the provisions of the laws. Thus, the MFO will require regular personnel costs. Accordingly, it is unprofitable to organize MFOs in order to issue three to five loans per year.

We, as SROs, do not provide advice to entrepreneurs and individuals who have not yet opened an MFO. Consulting on this issue and today our partner, the Russian Microfinance Center, is assisting in the creation of MFOs.