Types of material benefits. Tax on material benefits on an interest-free loan, when purchasing shares and purchasing goods and services
Last updated March 2019
What is material benefit?
Everyone knows that taxpayers’ income is subject to personal income tax at a rate of 13% (for example, the employer withholds personal income tax of 13% from wages). However, many do not even suspect that sometimes taxes are paid not only on money received, but also on money saved. For example, if you took out an interest-free loan or a loan at a low interest rate (below the marginal rate, which we will talk about later), then, according to the Tax Code, you received implicit income (by saving on loan interest) and must pay tax on this income. This implicit income is called material benefit.
Example: Lugovoy S.V. I took out an interest-free loan from my employer. From the moment of receiving the loan from Lugovoy S.V. income arises in the form of a material benefit on which tax will be withheld.
Material benefits arise when receiving loans (credits) at a low interest rate, when purchasing goods (work, services) from persons and organizations that are interdependent in relation to you, as well as when purchasing securities at prices below market prices. In this article, we will consider only the material benefits obtained from savings on interest for the use of borrowed funds, because this case is the most common.
Amount of material benefit
Let's look at in what cases and in what amount (when receiving a loan or loan) you may have income in the form of material benefits.
A material benefit arises if the loan rate is below the marginal rate equal to 2/3 of the refinancing rate. Currently, the refinancing rate is equal to the bank’s key rate – 9% (as of mid-June 2017). Accordingly, the marginal rate on loans issued from May 2017 will be 6% (2/3 * 9%). Thus, if you now take out a loan at less than 6% per annum, then you will have a material benefit on which tax will be withheld.
Notes: From 2012 to 2015 The refinancing rate was 8.25%. From January 1, 2016, the refinancing rate corresponds to the key rate of the Bank of Russia. Its value changed from 11 to 9.25%.
The marginal rate for foreign currency loans did not change in 2017 and remains 9% (clause 2, clause 2, article 212 of the Tax Code of the Russian Federation).
The size of the material benefit is equal to the difference between the marginal rate and the rate under the loan agreement, multiplied by the loan amount and the loan term.
Material benefit = (marginal rate - contract rate) x loan amount x (loan term in days / 365 days)
In this case, the material benefit is calculated monthly throughout the entire lending period, and when calculating it, one must take into account the refinancing rate that was in effect on the last day of the month (subclause 1, clause 2, article 212, subclause 7, clause 1, article 223 of the Tax Code of the Russian Federation ).
Example: On June 1, 2017, the organization issued its employee Sidorenko A.E. interest-free loan in the amount of 500,000 rubles. The marginal rate for June 2017 is 6% (2/3 * 9%).
Accordingly, for June the amount of material benefit will be: 6% * 500,000 rubles. * 30/365 (number of days in June)= 2,466 rub.
Example: Bukina D.G. I took out a loan at work at 5% per annum in the amount of 1,000,000 rubles on June 1, 2017. The marginal rate as of June 2017 was 6% (2/3 * 9%).
Material benefit for July is calculated as follows: (6% – 5%) * 1,000,000 * 30/365 (number of days in June)= 822 rubles.
Example: Drozdov V.B. in June 2017, the employer issued a loan at a rate of 8% per annum in the amount of 350,000 rubles. The marginal rate as of June 2017 was 6% (2/3 * 9%). Since the rate under the loan agreement is more than 2/3 of the refinancing rate, Drozdov V.B. no material benefit will be withheld.
Taxation of material benefits
According to paragraph 2 of Art. 224 Tax Code of the Russian Federation, material benefits are subject to personal income tax at a rate of 35%. As a general rule, the employer from whom the credit or loan was taken is required to withhold tax (clause 1 of Article 226 of the Tax Code of the Russian Federation).
Example: Raduga LLC provided Kosolapom A.S. interest-free loan and withheld material benefits from his wages at a rate of 35%. At Kosolapogoy A.S. there are no obligations to the tax office.
If income in the form of a material benefit was not received from the employer, or the employer did not withhold tax, you are required to independently submit a 3-NDFL declaration to the tax authority and report the tax (clause 4, clause 1, clause 6, article 228).
However, in 2016, changes were made to the Tax Code that simplified the reporting process for taxpayers in cases where they themselves must pay tax on material benefits (if the tax was not withheld by a tax agent). Since 2016, it is no longer necessary to file a 3-NDFL declaration, you just need to wait for a notification from the tax authority and pay the tax according to this notification (clause 6 of article 228 of the Tax Code of the Russian Federation, part 8 of article 4 of the Law of December 29, 2015 N 396-FZ ). In addition, these changes extended the deadline for tax payment until December 1 (according to 3-NDFL it was until July 15).
Example: In January 2017, Baskakova O.P. took out a loan from her employer at an interest rate of 5% per annum. A month later, she went on maternity leave, so the employer was not able to withhold material benefits from her salary. In 2018, Baskakova needs to wait for a notification from the tax office and pay the tax by December 1, 2018. To independently fill out the 3-NDFL declaration for 2017 to declare income received in the form of material benefits, O.P. Baskakova. not required.
The 3-NDFL declaration must be submitted to the tax office from January to April 30, 2016, and the tax must be paid by July 15, 2016.
Material benefit must be calculated on the date of receipt of income. This date will be the last day of each month during the period for which the employee received the loan. Therefore, determine the amount of material benefit monthly, regardless of the date:
- payment of interest;
- obtaining and repaying a loan.
For example, on January 31, 2016, on February 29, 2016, etc. Even if the contract was concluded before 2016.
This is stated in subparagraph 7 of paragraph 1 of Article 223 of the Tax Code of the Russian Federation and explained by the Ministry of Finance of Russia in letter dated March 18, 2016 No. 03-04-07/15279 (brought to the attention of tax inspectorates by letter of the Federal Tax Service of Russia dated March 29, 2016 No. BS -4-11/5338).
You can withhold tax from your next salary. The amount of withholding cannot exceed 50 percent of the payment. This follows from paragraph 4 of Article 226 of the Tax Code of the Russian Federation.
Situation: At what point should one determine the material benefit from saving on interest on an interest-free loan. The loan was issued to an employee in 2015, will it be repaid in 2016?
Determine material benefits on the last day of each month starting from January 31, 2016.
In this situation, it is necessary to apply the new rules that are in force from January 1, 2016. That is, income in the form of material benefits from interest-free loans is determined by . For the first time, this needs to be done only starting in January 2016, when the new procedure has already come into force.
During 2015, the person did not have any income in the form of material benefits. Because according to the old rules, until 2016, income in the form of financial benefits was calculated on the date of loan repayment. Since the interest-free loan was issued in 2015, and its repayment period is in 2016, then the first date of receipt of income will be January 31, 2016. This decision was given by specialists from the Russian Ministry of Finance.
The material benefit that you determine for the first time in the transition period is calculated from the date the loan was issued until January 31, 2016. In the future, until the loan repayment date, determine the income for each month on its last day (February 29, March 31, etc.).
This procedure follows from subparagraph 7 of paragraph 1 of Article 223 of the Tax Code of the Russian Federation. It is also confirmed by representatives of the Russian Ministry of Finance in private explanations.
An example of how to determine the material benefit of an interest-free loan. The loan was issued in 2015 with a maturity date in 2016
On October 1, 2015, Alpha LLC issued an interest-free loan to an employee in the amount of 600,000 rubles. The loan repayment period is March 31, 2016.
As of January 31, 2016, the accountant calculated personal income tax on material benefits for the period from October 1, 2015 to January 31, 2016.
Number of days to use the loan to calculate interest:
- from October 2, 2015 to December 31, 2015 - 91 days;
- from January 1 to January 31, 2016 - 31 days.
The amount of material benefits as of January 31 was:
600,000 rub. × 2/3 × 11% : 365 days. × 91 days + 600,000 rub. × 2/3 × 11%: 366 days. × 31 days = 14,697 rub.
RUB 14,697 × 35% = 5144 rub.
In the future, the accountant calculates personal income tax at the end of each month of using the loan.
The amount of material benefits as of February 29 was:
600,000 rub. × 2/3 × 11%: 366 days. × 29 days = 3486 rub.
Personal income tax for material benefits for February:
3486 rub. × 35% = 1220 rub.
The amount of material benefits as of March 31 was:
600,000 rub. × 2/3 × 11%: 366 days. × 31 days = 3727 rub.
Personal income tax on material benefits for March:
3727 rub. × 35% = 1304 rub.
Calculation of material benefits
When calculating the monthly financial benefits for loans provided to employees, use the following formulas.
If a loan in rubles is issued with interest, but the interest rate is lower than 2/3 of the refinancing rate, apply the formula:
| Material benefit from a loan issued in rubles at interest | = | 2/3 | × | - | Interest rate under the agreement | × | Loan amount | : | 365 (366) days | × |
|
If a loan in foreign currency is issued with interest, but the interest rate under the loan agreement is below 9 percent per annum, calculate the material benefit using the formula:
| Material benefit from a loan issued in foreign currency at interest | = | 9% | - | Interest rate under the agreement | × | Loan amount | : | 365 (366) days | × | Number of calendar days in a month or days of loan provision in a calendar month |
Calculate the material benefit from an interest-free loan issued in rubles using the formula:
| Material benefit from an interest-free loan issued in rubles | = | 2/3 | × | × | Loan amount | : | 365 (366) days | × | Number of calendar days in a month or days of loan provision in a calendar month |
If an interest-free loan is issued in foreign currency, calculate the material benefit as follows:
If the loan was repaid in parts within a month, calculate the material benefit as follows:
| Material benefit from a loan issued in rubles at interest with partial repayment | = | 2/3 | × | - | Interest rate under the agreement | × | Loan amount before partial repayment | : | 365 (366) days | × | Number of calendar days of loan provision in a calendar month until the day of partial repayment (inclusive) | + |
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Follow the same procedure for partial repayment of a loan in foreign currency and an interest-free loan.
This procedure follows from the provisions of paragraph 2 of Article 212 of the Tax Code of the Russian Federation.
Situation: what refinancing rate should be used when calculating the material benefit (for personal income tax purposes) received by an employee from using an interest-bearing loan? Interest paid in arrears.
When calculating the material benefit, use the refinancing rate set on the last day of each month of using the loan.
And even if the employee is late in paying interest, he will have taxable income on this date. This procedure follows from subparagraph 7 of paragraph 1 of Article 223 of the Tax Code of the Russian Federation.
An example of determining the material benefit of a loan provided to an employee. Interest is calculated monthly based on 1/2 the refinancing rate
On May 28, Alpha LLC issued a loan in the amount of 1,800,000 rubles to one of its employees. at 1/2 the refinancing rate (conditionally). Under the agreement, interest is accrued monthly and repaid at the end of the agreement. The loan is not related to the purchase of housing. The employee must repay the debt on January 11 of the following year.
The number of days in 2016 is 366.
Refinancing rates (conditionally):
- from May 28 to July 31 - 8 percent;
- from August 1 to November 30 - 10 percent;
- from December 1 to January 31 - 12 percent.
The accountant calculates personal income tax at the end of each month of using the loan.
May
The amount of interest accrued based on the refinancing rate in effect on the last day of May was:
RUB 1,800,000 × 2/3 × 8% : 366 days. × 3 days = 787 rub.
RUB 1,800,000 × 1/2 × 8% : 366 days. × 3 days = 590 rub.
Material benefit:
787 rub. - 590 rub. = 197 rub.
Personal income tax on material benefits for May:
197 rub. × 35% = 69 rub.
August
The amount of interest accrued based on the refinancing rate in effect on the last day of August was:
RUB 1,800,000 × 2/3 × 10% : 366 days. × 31 days = 10,164 rub.
The amount of interest accrued based on the actual rate under the agreement:
RUB 1,800,000 × 1/2 × 10%: 366 days. × 31 days = 7623 rub.
Material benefit:
RUB 10,164 - 7623 rub. = 2541 rub.
Personal income tax for material benefits for August:
2541 rub. × 35% = 889 rub.
December
The amount of interest accrued based on the refinancing rate in effect on the last day of December was:
RUB 1,800,000 × 2/3 × 12%: 366 days. × 31 days = 12,197 rub.
The amount of interest accrued based on the actual rate under the agreement:
RUB 1,800,000 × 1/2 × 12% : 366 days. × 31 days = 9148 rub.
Material benefit:
RUB 12,197 - 9148 rub. = 3049 rub.
Personal income tax on material benefits for December:
3049 rub. × 35% = 1067 rub.
January
The amount of interest accrued based on the refinancing rate in effect on the last day of January was:
RUB 1,800,000 × 2/3 × 12% : 365 days. × 11 days = 4340 rub.
The amount of interest accrued based on the actual rate under the agreement:
RUB 1,800,000 × 1/2 × 12% : 365 days. × 11 days = 3255 rub.
Material benefit:
4340 rub. - 3255 rub. = 1085 rub.
Personal income tax on material benefits for January:
1085 rub. × 35% = 380 rub.
Personal income tax rate
Personal income tax must be withheld from material benefits at a rate of 35 percent (clause 2 of Article 224 of the Tax Code of the Russian Federation). If the loan is issued non-resident, then the personal income tax rate is 30 percent (clause 3 of article 224 of the Tax Code of the Russian Federation). This rate applies even if the material benefit arose from a non-resident who is highly qualified specialist . This is explained by the fact that the income of non-residents - highly qualified specialists received from their work activities (paragraph 4, paragraph 3, article 224 of the Tax Code of the Russian Federation) is taxed at a rate of 13 percent.
Loan issued for the purchase of housing
Withholding personal income tax on material benefits for loans issued residents for the purchase (construction) of housing, land, do it in a special order.
If borrowing costs are not included in composition of property tax deduction , which employee receives when purchasing (constructing) housing or land , material benefits are subject to personal income tax for residents at a rate of 35, for non-residents at a rate of 30 percent. If an employee who is a resident has the right to receive a property tax deduction related to the purchase (purchase) of housing (land), the material benefit is not recognized as income subject to personal income tax. Even if at the time of the material benefit the property tax deduction has already been spent (or has not yet been used). Since a prerequisite for exemption from personal income tax is the citizen’s right to a deduction in relation to housing (land), for the construction or acquisition of which a loan was allocated.
This procedure follows from the provisions of subparagraph 1 of paragraph 1 of Article 212 and paragraph 2 of Article 224 of the Tax Code of the Russian Federation, as well as letter of the Ministry of Finance of Russia dated September 4, 2009 No. 03-04-05-01/671.
A loan provided to an employee to repay a mortgage loan for the purchase of housing is not a targeted loan. If an organization issues such a loan to an employee, the latter receives a material benefit from savings on interest, subject to personal income tax at a rate of 35 or 30 percent (letter of the Ministry of Finance of Russia dated October 7, 2009 No. 03-04-05-01/727).
The amount of material benefit from an interest-free loan issued to an employee for the purchase (construction) of housing or land is not subject to personal income tax. This rule applies only to those employees who have the right to receive a property tax deduction . Moreover, even if the loan amount exceeds the maximum amount of property tax deduction (2 million rubles), income in the form of material benefits is not subject to personal income tax in full. The legislation does not provide for such a condition for the exemption of material benefits from personal income tax as the maximum amount of property deduction. This follows from the provisions of subparagraph 1 of paragraph 1 of Article 212 and subparagraph 3 of paragraph 1 of Article 220 of the Tax Code of the Russian Federation.
Material benefits from an interest-free loan , provided for in paragraph 2 of Article 212 of the Tax Code of the Russian Federation.
A similar point of view is expressed in letters of the Ministry of Finance of Russia dated April 14, 2008 No. 03-04-06-01/85 and dated January 25, 2008 No. 03-04-06-01/20.
Property deduction for housing
An employee can confirm the right to exemption from personal income tax for material benefits received from savings on interest for the use of borrowed funds with the following documents from the tax office:
- notification, the form of which was approved by order of the Federal Tax Service of Russia dated January 14, 2015 No. ММВ-7-11/3;
- a certificate, the form of which is recommended by the letter of the Federal Tax Service of Russia dated July 27, 2009 No. ШС-22-3/594.
To receive a notification (certificate), an employee must contact the tax office at his place of residence with a set of supporting documents required when receiving a property deduction (documents confirming ownership of housing or acquisition of rights to housing under construction, as well as payment of expenses for the purchase (construction) of housing, land). It is enough for the employee to receive a supporting document (notification, certificate) and submit it to the organization once. If an organization has issued a long-term loan and the material benefit from interest savings occurs in different tax periods, then there is no need to annually require the employee to provide a new supporting document from the tax office.
This follows from the provisions of subparagraph 1 of paragraph 1 of Article 212, paragraph 3 of Article 220 of the Tax Code of the Russian Federation and clarifications of the Ministry of Finance of Russia in letters dated September 17, 2010 No. 03-04-05/6-559, dated September 14, 2010 No. 03- 04-06/6-211.
Insurance premiums
The amount of material benefit does not need to be accrued:
- contributions for compulsory pension (social, medical) insurance (part 1 of article 7 of the Law of July 24, 2009 No. 212-FZ, letters of the Ministry of Labor of Russia dated February 17, 2014 No. 17-4 / B-54, the Ministry of Health and Social Development of Russia dated May 19, 2010 No. 1239-19);
- contributions for insurance against accidents and occupational diseases (clause 1 of article 20.1 of the Law of July 24, 1998 No. 125-FZ).
Accounting
In accounting, reflect the deduction of personal income tax from material benefits by posting:
Debit 70 (73) Credit 68 subaccount “Personal Income Tax Payments”
- personal income tax is withheld from the salary (other income) of the employee.
This procedure follows from the Instructions for the chart of accounts (accounts 70, 73, 68).
An example of calculating personal income tax on material benefits for an interest-free loan provided to an employee in rubles. The loan is repaid in one lump sum (in full)
On July 19, 2016, Alpha LLC provided its employee with an interest-free loan in the amount of 50,000 rubles. with a maturity date of March 19, 2017 (243 days). The loan is not related to the purchase of housing. The employee repays the loan in full at the end of the contract.
During the period of using the interest-free loan, the employee received material benefits in the form of savings on interest. The Alpha accountant withheld personal income tax from her monthly. He calculated the amount of material benefit based on the refinancing rate on the last day of each month during the loan period. The refinancing rate did not change - 11 percent (conditionally).
Debit 73-1 Credit 50
For July 2016, material benefits amounted to:
- 120 rub. (RUB 50,000 × 12 days: 366 days × 2/3 × 11%).
- 42 rub. (120 rubles × 35%) - personal income tax is charged on the amount of material benefits received under an interest-free loan.
Debit 50 Credit 73-1
- 50,000 rub. - the loan amount has been repaid.
For March 2017, material benefits amounted to:
- 191 rub. (RUB 50,000 × 19 days: 365 days × 2/3 × 11%).
Debit 70 Credit 68 subaccount “Personal Income Tax Payments”
- 67 rub. (191 rubles × 35%) - personal income tax is charged on the amount of material benefits received under an interest-free loan.
The accountant withheld tax when paying the next salary.
An example of calculating personal income tax on material benefits for an interest-free loan provided to an employee in rubles. The loan is repaid in installments
On July 19, 2016, Alpha LLC provided its employee with an interest-free loan in the amount of 50,000 rubles. for eight months. The loan is not related to the purchase of housing. The loan repayment deadline is March 19, 2017.
- 25,000 rub. - March 11, 2017;
- 25,000 rub. - March 19, 2017.
During the period of using the interest-free loan, the employee received material benefits in the form of savings on interest. The Alpha accountant withheld personal income tax from her monthly. He calculated the amount of material benefit based on the refinancing rate on the last day of each month during the loan period. The refinancing rate did not change - 11 percent (conditionally).
In Alpha's accounting, transactions related to the issuance and repayment of a loan are reflected in the following entries.
Debit 73-1 Credit 50
- 50,000 rub. - an interest-free loan was issued.
Debit 50 Credit 73-1
- 25,000 rub. - the loan amount has been partially repaid.
Debit 50 Credit 73-1
- 25,000 rub. - the remaining loan amount has been repaid.
The accountant reflected personal income tax on material benefits monthly by posting:
Debit 70 Credit 68 subaccount “Personal Income Tax Payments”
- 42 rub. (RUB 50,000 × 12 days: 366 days × 2/3 × 11% × 35%) - personal income tax was accrued in July 2016 from the amount of material benefit on an interest-free loan.
The accountant made similar entries at the end of each month.
Debit 70 Credit 68 subaccount “Personal Income Tax Payments”
- 53 rub. (50,000 rubles × 11 days: 365 days × 2/3 × 11% × 35% + (50,000 rubles - 25,000 rubles) × 8 days: 365 days × 2/3 × 11% × 35%) - personal income tax was accrued in March 2017 from the amount of material benefit on an interest-free loan.
The accountant did not accrue contributions for compulsory pension (social, medical) insurance and contributions for insurance against accidents and occupational diseases for the amount of material benefits.
An example of calculating personal income tax on material benefits for an interest-free loan provided to an employee in rubles. The loan is repaid monthly in installments
On December 15, 2015, Alpha LLC provided its employee with an interest-free loan in the amount of 60,000 rubles. for three months. The loan is not related to the purchase of housing. The loan repayment deadline is March 15, 2016.
The employee repays the loan in installments:
- 20,000 rub. - January 15, 2016;
- 20,000 rub. - February 15, 2016;
- 20,000 rub. - March 15, 2016.
During the period of using the interest-free loan, the employee received material benefits in the form of savings on interest. The Alpha accountant withheld personal income tax from her monthly. He calculated the amount of material benefit based on the refinancing rate on the last day of each month during the loan period. The refinancing rate did not change - 11 percent (conditionally).
In Alpha's accounting, transactions related to the issuance and repayment of a loan are reflected in the following entries.
Debit 73-1 Credit 50
- 60,000 rub. - an interest-free loan was issued.
Debit 70 Credit 73-1
As of January 31, 2016, the accountant calculated personal income tax on material benefits for the period from December 16, 2015 to January 31, 2016.
The number of days in 2015 is 365, in 2016 - 366.
Debit 70 Credit 68 subaccount “Personal Income Tax Payments”
- 176 rub. (60,000 rubles × 16 days: 365 days × 2/3 × 11% × 35% + 60,000 rubles × 15 days: 366 days × 2/3 × 11% × 35% + 40,000 rubles . × 16 days: 366 days × 2/3 × 11% × 35%) - personal income tax was accrued in January 2016 on the amount of material benefit on an interest-free loan.
Debit 70 Credit 73-1
- 20,000 rub. - the loan amount has been partially repaid.
Debit 70 Credit 68 subaccount “Personal Income Tax Payments”
- 62 rub. (RUB 40,000 × 15 days: 366 days × 2/3 × 11% × 35% + RUB 20,000 × 14 days: 366 days × 2/3 × 11% × 35%) - personal income tax charged in February 2016 from the amount of material benefits on an interest-free loan.
Debit 70 Credit 73-1
- 20,000 rub. - the loan amount has been repaid in full.
Debit 70 Credit 68 subaccount “Personal Income Tax Payments”
- 21 rub. (RUB 20,000 × 15 days: 366 days × 2/3 × 11% × 35%) - personal income tax was accrued in March 2016 from the amount of material benefit on an interest-free loan.
The accountant withheld tax monthly when paying the next salary.
The accountant did not accrue contributions for compulsory pension (social, medical) insurance and contributions for insurance against accidents and occupational diseases for the amount of material benefits.
From January 1, 2016, the procedure for calculating and withholding personal income tax has changed from material benefits arising from savings on interest on loans with a low interest rate or interest-free, which employers often provide to employees. The refinancing rate of the Bank of Russia, which is involved in calculating material benefits, has become higher, and personal income tax on 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 using 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 (clause 1 of Art. 2, part 3, article 4 of the Federal Law of May 2, 2015 No. 113-FZ, hereinafter referred to as Law No. 113-FZ). That is, the tax burden on workers increases.
Let's consider this change using the example of various situations, such as the repayment in 2016 of a loan (credit) provided in 2015, the lack of taxable income for the employee to whom the loan (credit) was issued.
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 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.
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 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 specified in the agreement. In a situation where the amount is not established in the agreement, they are calculated based on the refinancing rate of the Bank of Russia, which is in effect at the location (place of residence) of the lender on the day the borrower pays the debt amount or part thereof.
If, under a loan agreement, it is not money, but things that are transferred, then such an agreement, as a rule, is interest-free. However, the parties to the agreement may stipulate in it a condition on the accrual of interest (clause 3 of Article 809 of the Civil Code of the Russian Federation).
A loan is a contractual relationship under which only funds can be transferred, and the creditor must be either a bank or another credit organization (clause 1 of Article 819 of the Civil Code of the Russian Federation).
Interest on the loan amount is accrued without fail, 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, paragraph 1 of Article 823 of the Civil Code of the Russian Federation).
Personal income tax on material benefits
So, as a general rule, personal income tax is assessed on income in the form of material benefits received from savings on interest for the use of borrowed (credit) funds that an organization or individual entrepreneur 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 tbsp. 212 of the Tax Code of the Russian Federation, such savings arise in cases where the taxpayer:
1) an organization or individual entrepreneur 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) was issued in foreign currency, 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 04/08/2010 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).
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From January 1, 2016, the refinancing rate became equal to the key rate (directive of the Bank of Russia dated December 11, 2015 No. 3894-U). There will be no more separate 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, there is no 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 late monetary obligations (penalties accrued on the amount of the 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 16.10.2012 No. 03-04-06/4-304, dated 10.09.2012 No. 03-04-05/4-1092, dated 31.08.2012 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 providing a loan from one individual to another (letters of the Ministry of Finance of Russia dated August 18, 2009 No. 03-11-09/284, dated January 19, 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 benefits is obliged to calculate and pay tax to the budget (Resolution of the Federal Antimonopoly Service of the Volga District dated June 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 05/08/2013 No. 03-04-06/16299, dated 04/04/2011 No. 03-04-05/6-217, dated 12/08/2009 No. 03-04-05-01 /885).
There are situations when material benefits in the form of savings on interest are exempt from personal income tax by direct indication of this in the norms of the Tax Code of the Russian Federation.
Thus, personal income tax is not levied on material benefits received from savings on interest for the use of borrowed (credit) funds provided:
For new construction or acquisition on the territory of the Russian Federation of a residential building, apartment, room or share(s) in them, land plots provided for individual housing construction, and land plots on which the purchased residential buildings are located, or share(s) in them ( paragraph 3 subparagraph 1 article 212 of the Tax Code of the Russian Federation);
Banks located on the territory of the Russian Federation, for the purpose of refinancing (on-lending) the specified loans (credits) (paragraph 4, subparagraph 1, clause 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 premises;
The borrower provided a notification from the tax authority confirming the right to a property tax deduction for expenses for the purchase of housing specified in the loan agreement. In this case, the details of the loan agreement must be indicated in the notification (letter of the Federal Tax Service of Russia dated November 11, 2015 No. BS-4-11/19755@, Ministry of Finance of Russia dated June 2, 2015 No. 03-04-05/31759, resolution of the Arbitration Court of the Volga District dated September 17 .2014 No. A65-21754/2013), and the amount of 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 benefits from saving 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 based on 2/3 of the current refinancing rate of the Bank of Russia, over the amount of interest calculated based on 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 = Credit (loan) amount x (Interest based on 2/3 of the refinancing rate - Interest under the terms of the agreement) x number of days of 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 personal income tax base. 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 were provided.
Example 1
On January 1, 2016, an employee of PJSC Alpha received an interest-free loan in the amount of RUB 1,000,000. 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 01/31/2016:
(2/3 x 11% – 0%) x 31 days: 366 x 1,000,000 x 35% = 2173.95 rubles,
as of 02/29/2016:
(2/3 x 11% - 0%) x day 29: 366 x 1,000,000 x 35% = 2033.70 rub.
Total: 2173.95 rub. + 2033.70 rub. = 4207.65 rub.
Let us recall that until January 1, 2016, the date of receipt of income was considered the date of payment of interest on the loan (credit) (subclause 1, clause 2, article 212, subclause 3, clause 1, article 223 of the Tax Code of the Russian Federation of previous editions), and for interest-free for borrowings, such a date was considered the date of repayment 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. 03-04-06/34520, dated March 26, 2013 No. 03-04-05/4 -282, dated 02/27/2012 No. 03-04-05/9-223, dated 07/25/2011 No. 03-04-05/6-531, dated 12/25/2012 No. 03-04-06/3-366, Federal Tax Service of Russia in Moscow dated 05/04/2009 No. 20-15/3/043262@, resolutions 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, Ural District dated December 4, 2012 No. F09-11970/12 in case No. A60-7752/2012). Therefore, if interest was not paid during 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. 03-04-08/6-18, Resolution of the Federal Antimonopoly Service of the Volga District dated July 19, 2012 No. A65-26834/2011). The above was also true for the case when the interest on the loan was actually paid on a time limit 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 was not paid by the borrower, but was included in the amount of the principal debt, the material benefit arose on the date the interest was added to the amount of debt (letter dated October 8, 2010 No. 03-04-06/6-247).
Based on the above, according to the old rules, personal income tax from the employee’s income (in example 1) was subject to withholding only as 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 arising before 2016. This means that under loan agreements issued before 2016, including interest-free loans, an individual’s income in the form of material benefits will be determined as of January 31, 2016, February 29, 2016, etc.
Thus, if in example 1 the loan is repaid before January 31, 2016, the grounds for paying tax on income in the form of material benefits received from saving on interest for the entire period of using borrowed funds under such a loan agreement have not been established. That is, in the event of termination of a debt obligation (by execution, debt forgiveness and other means) not on the last day of the month, the calculation of the tax base for income in the form of material benefits 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 loan in the amount of RUB 1,200,000 for three months. at 2% per annum to your 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 end. Let's consider how much personal income tax will need to be withheld from the employee.
Personal income tax = (1,200,000 x (7.33% - 2%) x 31 days: 366 days) x 35% = = 1896.08 rubles.
On February 5, 2016, the employee returned part of the principal debt and interest in the amount of 400,000 rubles. and (1,200,000 rub. x 2% x 31 days: : 366 days) = 2,032.79 rub. respectively.
Personal income tax = (800,000 x (7.33% - 2%) x 29 days: 366 days) x 35% = = 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. + 1049.18 rub. == 1377.05 rub.;
Personal income tax = (400,000 x (7.33% - 2%) x 31 days: 366 days) x 35% = = 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 . + 677.60 rub. = 896.28 rub.
We calculate material benefits from 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 of article 224 of the Tax Code of the Russian Federation).
In the form of a formula, this norm looks like this:
Tax base = Amount of credit (loan) 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%).
Personal income tax withholding periods
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 next cash payment to an individual (clause 4 of Article 226 of the Tax Code of the Russian Federation). The employing organization can do this when paying wages: the tax agent will withhold the accrued amount of income tax in the form of a material benefit upon actual payment of wages, but in an amount not exceeding 50% of the payment amount.
Note!
If the employee fails to repay the loan after the expiration of the statute of limitations and the said debt is written off from the organization’s balance sheet as bad, the employee will have income in the amount of the written off debt (subclause 5, clause 1, article 223 of the Tax Code of the Russian Federation).
Personal income tax reporting
Information about 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 a certificate in form 2-NDFL - for 2015 (approved by order of the Federal Tax Service of Russia dated November 17, 2010 No. MMV- 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 October 14, 2015 No. ММВ-7-11/450@).
In addition, if there is no payment of funds in 2016, the tax agent should inform the taxpayer and the tax authority about the calculated but not withheld amount of tax on material benefits 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 October 19, 2015 No. BS-4-11/18217). In such circumstances, the tax is paid by the individual independently (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 follow. for each document not submitted (clause 1 of Article 126 of the Tax Code of the Russian Federation).
Important!
Insurance premiums are not charged on material benefits from interest savings:
To state extra-budgetary funds (Part 1, 3 of 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 02/17/2014 No. 17-4/B-54 (clause 1), the Ministry of Health and Social Development of Russia dated 05/19/2010 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-FZ “On compulsory social insurance against industrial accidents and occupational diseases”) .
When individuals receive borrowed (credit) funds that are interest-free or the interest on which is below 2/3 of the refinancing rate of the Central Bank of the Russian Federation (9% per annum for foreign currency loans), these individuals generate income in the form of material benefit . Let us consider the procedure for taxation of personal income tax on this income.
The tax base
In accordance with paragraph 1 of Art. 210 of the Tax Code of the Russian Federation, when determining the tax base for personal income tax, all income of the taxpayer received by him both in cash and in kind, or the right to dispose of which he has acquired, as well as income in the form of material benefits, determined in accordance with Article 212 of the Tax Code, are taken into account RF.
According to paragraphs. 1 clause 1 art. 212 of the Tax Code of the Russian Federation, taxpayer income in the form of material benefits is material benefit received from saving on interest for the use of borrowed (credit) funds received from organizations or individual entrepreneurs.
The exception is:
1) received from banks located on the territory of the Russian Federation in connection with transactions with bank cards during the interest-free period established in the agreement on the provision of a bank card;
2) material benefits received from savings on interest for the use of borrowed (credit) funds provided for new construction or acquisition in the territory of the Russian Federation of a residential building, apartment, room or share(s) in them, land plots provided for individual housing construction, and land plots on which the purchased residential buildings are located, or shares (shares) in them;
3) material benefits received from savings on interest for the use of borrowed (credit) funds provided by banks located on the territory of the Russian Federation for the purpose of refinancing (on-lending) loans (credits) received for the purposes specified in the previous paragraph.
The material benefit specified in clauses 1 and 2 is exempt from taxation provided that the taxpayer has the right to receive a property tax deduction (clause 3, clause 1, article 220 of the Tax Code of the Russian Federation), confirmed by the tax authority (clause 8, article 220 of the Tax Code of the Russian Federation) ).
In accordance with paragraph 2 of Art. 212 of the Tax Code of the Russian Federation when the taxpayer receives income in the form of material benefits,the tax base defined as:
1) excess of the amount of interest for the use of borrowed (credit) funds expressed in rubles, calculated on the basis of 2/3 of the current refinancing rate established by the Central Bank of the Russian Federation on the date of actual receipt of income , over the amount of interest calculated based on the terms of the agreement;
2) excess of the amount of interest for the use of borrowed (credit) funds expressed in foreign currency, calculated on the basis of9% per annum , over the amount of interest calculated based on the terms of the agreement.
In accordance with paragraphs. 3 p. 1 art. 223 Tax Code of the Russian Federation date of actual receipt of income when receiving income in the form of material benefits, it is defined as date of payment of interest by the taxpayer on borrowed (credit) funds received.
When determining the tax base for income in the form of material benefits for the use interest-free loan , the dates of receipt of income are dates of actual repayment of borrowed funds (Letter from the Ministry of Finance of the Russian Federation dated February 27, 2012 N 03-04-05/9-223). In this case, the agreement may provide for the repayment of an interest-free loan (credit) at any frequency (for example, one-time, monthly or quarterly, etc.).
Tax rate
Personal income tax on material benefits is calculated at the following rates:
If tax resident of the Russian Federation – at a rate of 35% (clause 2 of Article 224 Tax Code of the Russian Federation);
If the taxpayer is not a tax resident of the Russian Federation - at a rate of 30% (clause 3 of Article 224 Tax Code of the Russian Federation).
Calculation, deduction and transfer of personal income tax
In accordance with paragraph 1 of Art. 226 of the Tax Code of the Russian Federation, Russian organizations, as a result of relations with which the taxpayer received income in the form of material benefits, are obliged to calculate, withhold and pay the appropriate amount of personal income tax to the budget.
In this case, organizations are recognized tax agents .
In accordance with paragraph 4 of Art. 226 of the Tax Code of the Russian Federation, tax agents are required to withhold the accrued amount of tax directly from any income of the taxpayer when it is actually paid to the taxpayer himself or on his behalf to third parties. In this case, the withheld tax amount cannot exceed 50% of the payment amount.
Tax agents are required to transfer personal income tax amounts from material benefits to the budget no later than the day following the day of their actual withholding.
An organization can withhold personal income tax only if it is the taxpayer's employer.
Otherwise, the organization, in accordance with clause 5 of Art. 226 of the Tax Code of the Russian Federation, it is necessary, no later than one month from the end of the tax period in which the relevant circumstances arose, to inform the taxpayer and the tax authority at the place of registration in writing about the impossibility of withholding the tax and the amount of the tax. The form of the message and the procedure for its submission were approved by the Order of the Federal Tax Service of Russia dated November 17, 2010. N ММВ-7-3/611@ (as amended on November 14, 2013) “On approval of the form of information on the income of individuals and recommendations for filling it out, the format of information on the income of individuals in electronic form, reference books.” In this case, the obligation to pay personal income tax is assigned to (clause 4, clause 1, article 228 of the Tax Code of the Russian Federation). The taxpayer in accordance with paragraph 3 of Art. 228 and art. 229 of the Tax Code of the Russian Federation, in this case, is obliged to submit the corresponding tax return to the tax authority at the place of registration no later than April 30 of the year following the expired tax period.
Example 1.
Calculation of personal income tax on material benefits from savings on interest on a loan issued in rubles.
On June 30, 2014, the organization provided its employee, a tax resident of the Russian Federation, with a loan in the amount of 100,000 rubles. for a period of 6 months at 4% per annum. Interest is paid in a lump sum upon repayment of the loan. On December 30, 2014, the employee repaid the loan and also paid interest in the amount of RUB 2,005.48. (Calculation: RUB 100,000 x 4% / 365 days x 183 days = RUB 2,005.48). The refinancing rate on the date of interest payment is 8.25% (Instruction of the Bank of Russia dated September 13, 2012 N 2873-U “On the amount of the refinancing rate of the Bank of Russia”).
100,000 rub. x (2/3 x 8.25% - 4%) / 365 days. x 183 days =752.05 rub.
RUB 752.05 x 35% = 263 rub.
Example 2.
Calculation of personal income tax on material benefits from savings on interest on a loan issued in foreign currency.
On June 30, 2014, Znak Bank provided A.V. Petrov, who is not an employee of this bank, a tax resident of the Russian Federation, with a loan for consumer purposes in the amount of $12,000 for a period of 6 months at 7% per annum. Interest is paid in a lump sum upon repayment of the loan.
December 30, 2014 Petrov A.V. repaid the loan and also paid interest in the amount of RUB 23,870.82. (the official US dollar exchange rate as of December 30, 2014 was set by the Central Bank of the Russian Federation in the amount of 56.6801 rubles/US dollars. Calculation: $12,000 x 7% / 365 days x 183 days = $421.15 x 56, 6801 = 23,870.82 rubles).
The material benefit from saving on interest on the loan will be:
$12,000 x (9% - 7%) / 365 days. x 183 days = $120.33 x 56.6801 = RUB 6,820.25
Personal income tax on material benefits will be:
RUB 6,820.25 x 35% = 2,387 rub.
Since the borrower is not an employee of the lending bank, he is obliged to independently declare the specified income and pay personal income tax on it. For this purpose, no later than April 30, 2015 Petrov A.V. will have to submit a personal income tax return for 2014 to the tax authority at the place of residence.
Example 3.
Calculation of personal income tax on material benefits from savings on interest on an interest-free loan issued in rubles to a non-resident.
On June 30, 2014, the organization provided its employee, who is not a tax resident of the Russian Federation, with an interest-free loan in the amount of 100,000 rubles. for a period of 4 months. According to the terms of the agreement, the loan must be repaid on the following dates: July 31, August 29, September 30 and October 30, 2014 - 25,000 rubles each. The employee repaid the loan within the specified time frame. The refinancing rate on the loan repayment dates is 8.25%.
Let's calculate the material benefit from saving on interest on the loan and the corresponding personal income tax amounts:
July 31, 2014 The amount of material benefit will be: 100,000 rubles. x 2/3 x 8.25% / 365 days. x 31 days = 467.12 rub. Personal income tax will be: 467.12 rubles. x 30% = 140 rub.
August 29, 2014 The amount of material benefit will be: (RUB 100,000 – RUB 25,000) x 2/3 x 8.25% / 365 days. x 29 days = 327.74 rub. Personal income tax will be: 327.74 rubles. x 30% = 98 rub.
September 30, 2014 The amount of material benefit will be: (RUB 100,000 – RUB 50,000) x 2/3 x 8.25% / 365 days. x 32 days = 241.10 rub. Personal income tax will be: 241.10 rubles. x 30% = 72 rub.
October 30, 2014 The amount of material benefit will be: (RUB 100,000 – RUB 75,000) x 2/3 x 8.25% / 365 days. x 30 days = 113.01 rub. Personal income tax will be: 113.01 rubles. x 30% = 34 rub.
Since January 1, 2016, numerous amendments have been made to Chapter 23 “NDFL” of the Tax Code (hereinafter referred to as the Code). In this article we will talk about changes related to the calculation of personal income tax on amounts of material benefits (Federal Law No. 113-FZ dated May 2, 2015 (hereinafter referred to as Law No. 113-FZ)).
The economic essence of a material benefit is to relieve the taxpayer from any costs that he could have incurred, but did not actually incur. According to the Code, material benefit accrues to an individual in the following cases:
- when savings occur on interest for the use of borrowed or credit funds received from legal entities or individual entrepreneurs (subclause 1, clause 1, article 212 of the Tax Code of the Russian Federation);
- when purchasing goods (work, services) from individuals, organizations and individual entrepreneurs who are interdependent in relation to the taxpayer (subclause 2, clause 1, article 212 of the Tax Code of the Russian Federation);
- when purchasing securities, financial instruments of futures transactions (subclause 3, clause 1, article 212 of the Tax Code of the Russian Federation).
Let us note that until 2016, types of material benefits not subject to personal income tax were listed only in subparagraph 1 of paragraph 1 of Article 212 of the Code. From February 15, 2016, material benefits received from the acquisition of securities from a controlled foreign company by a taxpayer who is recognized as a controlling person of such a foreign company, as well as a Russian related party of such a controlling person, are also not subject to taxation. Moreover, in order to obtain an exemption, it is necessary that the income of such a controlled foreign company from the sale of the specified securities and expenses in the form of the purchase price of the securities are excluded from the profit (loss) of this foreign company on the basis of paragraph 10 of Article 309.1 of the Code (corresponding amendments were made by Federal Law dated 15.02. 2016 No. 32-FZ, came into force on February 15, 2016 and apply to legal relations that arose from January 1, 2015).
There are situations when a taxpayer must pay personal income tax on a material benefit independently, for example, if he purchased goods from an individual who is interdependent in relation to him (clause 1 of Article 228 of the Tax Code of the Russian Federation). However, in the general case, the responsibility for calculating material benefits rests with the tax agent, that is, the organization or individual entrepreneur, as a result of relations with which an individual receives this type of income (clause 1 of Article 226 of the Tax Code of the Russian Federation).
The tax agent must not only calculate the personal income tax, but also withhold it from the taxpayer, and then transfer it to the budget in a timely manner. In addition, you must remember to reflect the material benefit in your personal income tax reporting. Let's consider the procedure for fulfilling these obligations in 2016.
Calculation of material benefits
Before talking directly about tax calculations, you need to understand at what point such calculations are made.Previously, the Code did not contain a direct answer to this question. However, the cumulative interpretation of the provisions of Chapter 23 of the Code made it possible to come to the conclusion that the settlement date should be determined according to the rules established by Article 223 of the Code. Since 2016, the gap has been closed. The necessary changes have been made to paragraph 3 of Article 226 of the Code (subparagraph “a” of paragraph 2 of Article 2 of Law No. 113-FZ), which now clearly states: “calculation of tax amounts is carried out by tax agents on the date of actual receipt of income, determined in accordance with Article 223 of the Code."
Until 2016, Article 223 of the Code provided for the following procedure for determining the date of actual receipt of income in the form of material benefits (subparagraph 3, paragraph 1, Article 223 as amended, in force until 2016):
- when calculating the material benefit from savings on interest - as the day the taxpayer pays interest on borrowed (credit) funds received;
- when calculating material benefits from transactions between interdependent persons - as the day of acquisition of goods (works, services);
- when calculating the material benefit from the acquisition of securities, financial instruments of futures transactions - as the day of acquisition of the securities.
As for saving on interest when receiving borrowed funds, for such material benefits the procedure for determining the date of occurrence of income has changed dramatically. Now such material benefit is determined not at the time of payment of interest, but on the last day of each month during the period for which the borrowed (credit) funds were provided (subclause 7, clause 1, article 223 of the Tax Code of the Russian Federation; Law No. 113-FZ).
What was the impact of the amendment under consideration? First of all, its inclusion in the Code made it possible to reduce budget losses in terms of personal income tax, which is not paid in addition from the material benefit of unscrupulous borrowers. The previous procedure, in essence, made it possible to defer the obligation to pay tax for an indefinite period: the borrower does not pay interest to the lender, therefore, he does not receive income in the form of material benefits (letter of the Ministry of Finance of Russia dated 01.02.2010 No. 03-04-08/6 -18).
In addition, the old version of Article 223 of the Code did not contain provisions regulating the procedure for determining the date of receipt of income when concluding an interest-free loan agreement. In this regard, the question of the need to calculate material benefits when concluding such agreements until recently was classified as controversial:
- the official position was that the actual date of receipt of income in the form of material benefits when receiving an interest-free loan should be considered the corresponding dates of the return of the borrowed funds by the taxpayer (letters of the Ministry of Finance of Russia dated June 10, 2015 No. 03-04-05/33645, dated July 15, 2014 No. 03 -04-06/34520, dated 03/26/2013 No. 03-04-05/4-282);
- in the author's materials there was a point of view that income from material benefits did not arise at all with an interest-free loan.
According to the Ministry of Finance of Russia (letter of the Ministry of Finance of Russia dated 02/15/2016 No. 03-04-06/9399, dated 02/02/2016 No. 03-04-06/4762), the new procedure for recognizing the income in question applies starting from January 1, 2016, regardless from the date of conclusion of the loan (credit) agreement. That is, if, for example, borrowed obligations that arose in 2015 and interest on them were not repaid before January 1, 2016, the amount of income in the form of material benefits must be calculated as of January 31, 2016 for all days of use of borrowed funds from the date of their receipt . If in 2015 interest was partially repaid and taxable income in the form of material benefits was determined for the borrower (for example, the last time income was determined on December 20, 2015), then as of January 31, 2016, you need to calculate the amount of income in the form of material benefits received during the period of use borrowed funds, starting from the date of the last determination of income (12/20/2015).
Let us note that this point of view is not controversial. Transitional provisions governing the procedure for determining the date of receipt of income in the form of material benefits from savings on interest when receiving funds under loan agreements, including interest-free, concluded before 2016 and in force in 2016, are not established by Law No. 113-FZ. In the part that changes the procedure for recognizing income in the form of material benefits from savings on interest, Law No. 113-FZ, in the author’s opinion, does not have retroactive effect (Clause 2 of Article 5 of the Tax Code of the Russian Federation), that is, it does not extend its effect to previous tax periods. Consequently, the previous rules must apply to such income: income arises on the date of payment of interest or repayment of borrowed funds.
No changes directly related to the procedure for calculating material benefits have been made to the Code since 2016. As before, the tax base for such income is determined according to the rules established in paragraphs 2-4 of Article 212 of the Code.
Let's take, for example, one of the most common types of material benefits - savings on interest on a loan or credit. Such savings arise if an individual receives borrowed funds at an interest rate less than the minimum established by law:
- for ruble loans, the minimum interest rate is 2/3 of the refinancing rate of the Central Bank of the Russian Federation in effect on the settlement date;
- for foreign loans and credits the minimum percentage is 9 (subclause 1, clause 2, article 212 of the Tax Code of the Russian Federation).
As mentioned above, the very principle of calculating personal income tax on such material benefits remains the same. However, an important event occurred in 2016, which, among other things, influenced the calculation of the material benefits from interest savings. Since this influence is quite significant, the author considers it necessary to draw the attention of taxpayers and tax agents to it.
The fact is that from January 1, 2016, the Bank of Russia equated the value of the refinancing rate to the value of the key rate (directive of the Bank of Russia dated December 11, 2015 No. 3894-U). Note that in the Russian Federation the key rate since its introduction (September 2013 (information from the Bank of Russia dated September 13, 2013)) has always been higher than the refinancing rate. Thus, since August 2015, the key rate has been 11 percent per annum (information from the Bank of Russia dated July 31, 2015), while the value of the refinancing rate has not changed since September 2012 and amounted to 8.25 percent per annum (directive of the Bank of Russia dated September 13, 2012 No. 2873 -y).
Equating the rates under consideration to each other, in fact, led to an increase in the refinancing rate, which, in turn, entailed an increase in the minimum interest amount, on the basis of which income in the form of material benefits on ruble loans is calculated. If previously such a material benefit arose when issuing borrowed or credit funds at an interest rate below 5.5 percent per annum (2/3 of 8.25%), now the tax must be paid to borrowers whose interest on the loan (credit) is less than 7.3 (2/3 of 11%).
Obviously, in the context of calculating material benefits, such a change is negative, since it leads to an increase in the tax burden on individuals.
On January 1, 2015, the organization issued borrowed funds to an employee in the amount of 1,000,000 rubles at 6% per annum for a period of 1 month.
The employee did not receive income in the form of material benefits in 2015:
1,000,000 rub. × (5.5% - 6%) × × 31 days: 365 days. = 0 rub.
Now let’s assume that the same loan on the same terms was issued not in 2015, but in 2016.
Income in the form of material benefits will be:
1,000,000 rub. × (11% - 6%) × × 31 days: 366 days. = 4234 rub. 97 kopecks
Personal income tax on material benefits
The tax on material benefits has been calculated, but it is too early to talk about paying it to the budget. Let us remind you that only tax amounts that are previously withheld from the taxpayer can be transferred to the budget; payment of personal income tax at the expense of tax agents is not allowed (clause 9 of Article 226 of the Tax Code of the Russian Federation). Simply put, personal income tax can be paid to the budget only if the funds for its payment are previously taken from an individual.It is necessary to withhold the accrued tax amount on the date of actual payment of income to the taxpayer (clause 4 of Article 226 of the Tax Code of the Russian Federation).
Different types of material benefits are subject to personal income tax at different rates. For example, when calculating the material benefit from savings on interest, a rate of 35 percent is used (clause 2 of Article 224 of the Tax Code of the Russian Federation), and when calculating the benefits from transactions between related parties, a rate of 13 percent is used (clause 1 of Article 224 of the Tax Code of the Russian Federation).
Do not confuse this date with the date of actual receipt of income!
The date of actual receipt of income is the date on which personal income tax is calculated on material benefits. The tax agent cannot physically withhold any amounts from the taxpayer on this date: there is simply nothing to withhold from, because no money is paid to the individual at the time the tax is calculated.
The date of actual payment of income is the date on which the tax agent pays the taxpayer any funds: wages, vacation pay, money for purchased goods, etc. (letter of the Ministry of Finance of Russia dated September 7, 2015 No. 03-04-06/51392) Personal income tax must be withheld from the amounts paid. Please note: the withheld tax amount should not exceed 50 percent of the amount of income paid (paragraph 2, paragraph 4, article 220 of the Tax Code of the Russian Federation).
The amounts of calculated and withheld tax in 2016 must be transferred no later than the day following the day of payment of income to the taxpayer (clause 6 of Article 226 of the Tax Code of the Russian Federation as amended by Law No. 113-FZ). Previously, the deadline for transferring personal income tax to the budget was set as the day of actual receipt of cash from the bank for payment of income.
If it was not possible to withhold the tax, for example, the amount of available income was not enough to completely withhold personal income tax, or the income was not paid to the taxpayer at all, the impossibility of withholding the tax must be reported in writing to the Federal Tax Service and the taxpayer himself. As before, such a message is submitted in form 2-NDFL, in the header part of which sign 2 must be indicated (clause 5 of Article 226 of the Tax Code of the Russian Federation; section II of Appendix No. 2 to the order of the Federal Tax Service of Russia dated October 30, 2015 No. MMV-7- 11/485@).
From January 1, 2016, paragraph 5 of Article 226 of the Code was set out in a new edition. The new wording present in this norm, together with the fact that paragraph 2 of Article 231 of the Code (clause 4 of Article 2 of Law No. 113-FZ) was repealed from the same date (clause 4 of Article 2 of Law No. 113-FZ), allows us to come to the conclusion that it is possible to withhold personal income tax from a taxpayer’s income only in the calendar year in which these incomes were accrued to him. After the end of the year, tax amounts not withheld for any reason cannot be withdrawn from the taxpayer. In this regard, at the moment the question remains open about the possibility of withholding personal income tax from material benefits accrued to the taxpayer in December (as of December 31, 2015).