Tax Code of the Russian Federation, article 212. Tax Code of the Russian Federation (taxation of individuals)
1. The taxpayer's income received in the form of material benefit is:
1) material benefit received from savings on interest for the taxpayer's use of borrowed (credit) funds received from organizations or individual entrepreneurs, with the exception of:
material benefits received from banks located in the territory Russian Federation, in connection with transactions with bank cards during the interest-free period specified in the agreement on the provision of bank card;
material benefits received from savings on interest for the use of borrowed (credit) funds provided for new construction or the acquisition of a residential building, apartment, room or share (stakes) in them on the territory of the Russian Federation, land plots provided for individual housing construction, and land plots on which the acquired residential buildings are located, or shares (stakes) in them;
material benefit received from savings on interest for the use of borrowed (credit) funds provided by banks located in the territory of the Russian Federation for the purpose of refinancing (on-lending) loans (credits) received for new construction or the acquisition of a residential house, apartment in the Russian Federation , rooms or shares (shares) in them, land plots provided for individual housing construction, and land plots on which the acquired residential buildings are located, or shares (shares) in them.
The material benefit specified in paragraphs three and four of this subparagraph is exempt from taxation, provided that the taxpayer has the right to receive a property tax deduction established by subparagraph 3 of paragraph 1 of Article 220 of this Code, confirmed tax authority in the manner prescribed by paragraph 8 of Article 220 of this Code;
2) material benefit received from the acquisition of goods (works, services) in accordance with a civil law contract from individuals, organizations and individual entrepreneurs that are interdependent in relation to the taxpayer;
3) material benefits received from the acquisition valuable papers, derivatives financial instruments, with the exception of securities purchased from a controlled foreign company a taxpayer recognized as a controlling person of such a foreign company, as well as a Russian related person of such a controlling person, provided that the income of such controlled foreign company from the sale of these securities and expenses in the form of the purchase price of securities are excluded from the profit (loss) of this foreign company by on the basis of paragraph 10 of Article 309.1 of this Code.
2. When the taxpayer receives income in the form of material benefits specified in subparagraph 1 of paragraph 1 of this article, the tax base defined as:
1) excess of the amount of interest for the use of borrowed (credit) funds, denominated in rubles, calculated on the basis of two-thirds of the current refinancing rate established The central bank The Russian Federation as of the date of actual receipt by the taxpayer of income, over the amount of interest calculated on the basis of 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 of 9 percent per annum, over the amount of interest calculated on the basis of the terms of the contract.
Determination of the tax base when receiving income in the form of material benefits received from savings on interest when receiving borrowed (credit) funds, calculation, withholding and transfer of tax are carried out by the tax agent in the manner prescribed by this Code.
3. When a taxpayer receives income in the form of a material benefit specified in subparagraph 2 of paragraph 1 of this article, the tax base is defined as the excess of the price of identical (homogeneous) goods (works, services) sold by persons who are interdependent with respect to the taxpayer, under normal conditions to persons who are not interdependent over the selling prices of identical (homogeneous) goods (works, services) to the taxpayer.
4. When a taxpayer receives income in the form of a material benefit specified in subparagraph 3 of paragraph 1 of this article, the tax base is defined as the excess of the market value of securities and derivative financial instruments over the amount of actual expenses of the taxpayer for their acquisition.
For the purposes of this article, the costs of acquiring securities that are the underlying asset of an option contract include the amounts paid to the seller for securities in accordance with such contract, as well as the premiums and variation margin paid on option contracts.
Material benefit does not arise when a taxpayer purchases securities under the first or second part of the REPO, provided that the parties fulfill their obligations under the first and second parts of the REPO, as well as in the case of the properly executed termination of obligations under the first or second part of the REPO on grounds other than proper execution, including the offset of similar counterclaims arising from another REPO transaction.
The market value of securities circulating on the organized securities market is determined on the basis of their market price, taking into account the maximum limit of its fluctuations, unless otherwise established by this article.
The market value of securities not traded on the organized securities market is determined on the basis of the estimated price of securities, taking into account the limiting border of its fluctuations, unless otherwise established by this article.
The market value of securities traded and not traded on the organized securities market is determined at the date of the transaction.
The procedure for determining the market price of securities, the settlement price of securities, as well as the procedure for determining the maximum limit of fluctuations in the market price are established for the purposes of this chapter by the Central Bank of the Russian Federation in agreement with the Ministry of Finance of the Russian Federation, taking into account the provisions of this paragraph.
Estimated price investment share of a closed-end investment fund (interval unit investment fund) not circulating on the organized securities market, the last estimated value of the investment share determined by management company carrying out trust management of property constituting the corresponding mutual investment fund, in accordance with the legislation of the Russian Federation on investment funds, excluding the limiting border of fluctuations in the settlement price of securities.
The market value of an investment unit of a mutual investment fund (circulating and not circulating on the organized securities market) in the event of its acquisition from a management company exercising trust management of property constituting the respective unit investment fund is the last estimated value of the investment unit determined by the specified management company in accordance with with the legislation of the Russian Federation on investment funds, without taking into account the maximum limit of fluctuations in the market or settlement price of securities.
If, in accordance with the legislation of the Russian Federation on investment funds, the issuance of an investment share of a unit investment fund with limited circulation is carried out not at the estimated value of an investment share, the market value of such an investment share is the amount of funds for which one investment share is issued and which is determined in accordance with with the rules of trust management of a mutual investment fund, without taking into account the maximum limit of fluctuations.
The market value of an investment unit of an open-end unit investment fund is the last estimated value of an investment unit determined by the management company that carries out trust management of the property that constitutes the corresponding open-end unit investment fund, in accordance with the legislation of the Russian Federation on investment funds, without taking into account the maximum limit of fluctuations in the market price of securities ...
The market value of derivative financial instruments traded on an organized market is determined in accordance with paragraph 1 of Article 305 of this Code.
The market value of derivative financial instruments that are not traded on an organized market is determined in accordance with paragraph 2 of Article 305 of this Code.
Article 212. Peculiarities of determining the tax base when receiving income in the form of material benefit
1. The taxpayer's income received in the form of material benefit is:
1) unless otherwise provided by this subparagraph, the material benefit received from savings on interest for the taxpayer's use of borrowed (credit) funds received from organizations or individual entrepreneurs, with the exception of:
material benefits 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;
material benefits received from savings on interest for the use of borrowed (credit) funds provided for new construction or the acquisition in the territory of the Russian Federation of a residential building, apartment, room or share (stakes) in them, land plots provided for individual housing construction, and land plots on which the acquired residential buildings are located, or shares (stakes) in them;
material benefit received from savings on interest for the use of borrowed (credit) funds provided by banks located in the territory of the Russian Federation for the purpose of refinancing (on-lending) loans (credits) received for new construction or the acquisition of a residential house, apartment in the Russian Federation , rooms or shares (shares) in them, land plots provided for individual housing construction, and land plots on which the acquired residential buildings are located, or shares (shares) in them.
The material benefit specified in paragraphs three and four of this subparagraph is exempt from taxation provided that the taxpayer has the right to receive a property tax deduction established by subparagraph 3 of paragraph 1 of Article 220 of this Code, confirmed by the tax authority in the manner prescribed by paragraph 8 of Article 220 of this Code ...
The material benefit received from savings on interest for the taxpayer's use of borrowed (credit) funds (with the exception of the material benefit specified in paragraphs two to four of this subparagraph) is recognized as the taxpayer's income received in the form of material benefits, subject to at least one of the following conditions:
the corresponding borrowed (credit) funds received by the taxpayer from an organization or individual entrepreneur who are recognized as an interdependent person of the taxpayer or with which the taxpayer has an employment relationship;
Such savings are in fact material assistance or a form of reciprocal fulfillment by an organization or an individual entrepreneur of an obligation to the taxpayer, including payment (remuneration) for goods supplied by the taxpayer (work performed, services rendered).
It is not recognized as income of a taxpayer received in the form of material benefit, material benefit received from savings on interest for the use of borrowed (credit) funds during grace period established in accordance with article 6.1-1 Federal law of December 21, 2013 N 353-FZ "On consumer credit(loan) ";
2) material benefits received from the acquisition of goods (works, services) in accordance with a civil law contract from individuals, organizations and individual entrepreneurs who are interdependent with respect to the taxpayer;
3) material benefits received from the acquisition of securities, derivative financial instruments, with the exception of securities specified in paragraph 25 of Article 217 of this Code, in the event of their acquisition during the initial placement by the issuer and securities acquired from a controlled foreign company by a taxpayer recognized as a controlling a person of such a foreign company, as well as a Russian related person of such a controlling person, provided that the income of such a controlled foreign company from the sale of these 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 this Code.
2. When a taxpayer receives income in the form of a material benefit specified in subparagraph 1 of paragraph 1 of this article, the tax base is determined as:
1) the excess of the amount of interest for the use of borrowed (credit) funds, expressed in rubles, calculated on the basis of two-thirds of the current refinancing rate established by the Central Bank of the Russian Federation as of the date of the actual receipt of income by the taxpayer, over the amount of interest calculated on the basis of the terms of the agreement;
2) the excess of the amount of interest for the use of borrowed (credit) funds, expressed in foreign currency, calculated on the basis of 9 percent per annum, over the amount of interest calculated on the basis of the terms of the agreement.
Determination of the tax base when receiving income in the form of material benefits received from savings on interest when receiving borrowed (credit) funds, calculation, withholding and transfer of tax are carried out by the tax agent in the manner prescribed by this Code.
3. When a taxpayer receives income in the form of a material benefit specified in subparagraph 2 of paragraph 1 of this article, the tax base is defined as the excess of the price of identical (homogeneous) goods (works, services) sold by persons who are interdependent with respect to the taxpayer, under normal conditions to persons who are not interdependent over the selling prices of identical (homogeneous) goods (works, services) to the taxpayer.
4. When a taxpayer receives income in the form of a material benefit specified in subparagraph 3 of paragraph 1 of this article, the tax base is defined as the excess of the market value of securities and derivative financial instruments over the amount of actual expenses of the taxpayer for their acquisition.
For the purposes of this article, the costs of acquiring securities that are the underlying asset of an option contract include the amounts paid to the seller for securities in accordance with such contract, as well as the premiums and variation margin paid on option contracts.
Material benefit does not arise when a taxpayer purchases securities under the first or second part of the REPO, provided that the parties fulfill their obligations under the first and second parts of the REPO, as well as in the case of the properly executed termination of obligations under the first or second part of the REPO on grounds other than proper execution, including the offset of similar counterclaims arising from another REPO transaction.
The market value of securities circulating on the organized securities market is determined on the basis of their market price, taking into account the maximum limit of its fluctuations, unless otherwise established by this article.
The market value of securities not traded on the organized securities market is determined on the basis of the estimated price of securities, taking into account the limiting border of its fluctuations, unless otherwise established by this article.
The market value of securities traded and not traded on the organized securities market is determined at the date of the transaction.
The procedure for determining the market price of securities, the settlement price of securities, as well as the procedure for determining the maximum limit of fluctuations in the market price are established for the purposes of this chapter by the Central Bank of the Russian Federation in agreement with the Ministry of Finance of the Russian Federation, taking into account the provisions of this paragraph.
The settlement price of an investment unit of a closed-end investment fund (interval unit investment fund) not circulating on the organized securities market is the last estimated value of the investment unit determined by the management company that carries out trust management of the property constituting the respective unit investment fund, in accordance with the legislation of the Russian Federation on investment funds, without taking into account the limit of fluctuations in the settlement price of securities.
The market value of an investment unit of a mutual investment fund (circulating and not circulating on the organized securities market) in the event of its acquisition from a management company exercising trust management of property constituting the respective unit investment fund is the last estimated value of the investment unit determined by the specified management company in accordance with with the legislation of the Russian Federation on investment funds, without taking into account the maximum limit of fluctuations in the market or settlement price of securities.
If, in accordance with the legislation of the Russian Federation on investment funds, the issuance of an investment share of a unit investment fund with limited circulation is carried out not at the estimated value of an investment share, the market value of such an investment share is the amount of funds for which one investment share is issued and which is determined in accordance with with the rules of trust management of a mutual investment fund, without taking into account the maximum limit of fluctuations.
The market value of an investment unit of an open-end unit investment fund is the last estimated value of an investment unit determined by the management company that carries out trust management of the property that constitutes the corresponding open-end unit investment fund, in accordance with the legislation of the Russian Federation on investment funds, without taking into account the maximum limit of fluctuations in the market price of securities ...
The market value of derivative financial instruments traded on an organized market is determined in accordance with paragraph 1 of Article 305 of this Code.
The market value of derivative financial instruments that are not traded on an organized market is determined in accordance with paragraph 2 of Article 305 of this Code.
tax code, N 117-FZ | Art. 212 of the Tax Code of the Russian Federation
Article 212 of the Tax Code of the Russian Federation. Features of determining the tax base when receiving income in the form of material benefits ( current edition)
1. The taxpayer's income received in the form of material benefit is:
1) unless otherwise provided by this subparagraph, the material benefit received from savings on interest for the taxpayer's use of borrowed (credit) funds received from organizations or individual entrepreneurs, with the exception of:
material benefits 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;
material benefits received from savings on interest for the use of borrowed (credit) funds provided for new construction or the acquisition in the territory of the Russian Federation of a residential building, apartment, room or share (stakes) in them, land plots provided for individual housing construction, and land plots on which the acquired residential buildings are located, or shares (stakes) in them;
material benefit received from savings on interest for the use of borrowed (credit) funds provided by banks located in the territory of the Russian Federation for the purpose of refinancing (on-lending) loans (credits) received for new construction or the acquisition of a residential house, apartment in the Russian Federation , rooms or shares (shares) in them, land plots provided for individual housing construction, and land plots on which the acquired residential buildings are located, or shares (shares) in them.
The material benefit specified in paragraphs three and four of this subparagraph is exempt from taxation provided that the taxpayer has the right to receive a property tax deduction established by subparagraph 3 of paragraph 1 of Article 220 of this Code, confirmed by the tax authority in the manner prescribed by paragraph 8 of Article 220 of this Code ...
The material benefit received from savings on interest for the taxpayer's use of borrowed (credit) funds (with the exception of the material benefit specified in paragraphs two to four of this subparagraph) is recognized as the taxpayer's income received in the form of material benefits, subject to at least one of the following conditions:
the corresponding borrowed (credit) funds received by the taxpayer from an organization or individual entrepreneur who are recognized as an interdependent person of the taxpayer or with which the taxpayer has an employment relationship;
Such savings are in fact material assistance or a form of reciprocal fulfillment by an organization or an individual entrepreneur of an obligation to the taxpayer, including payment (remuneration) for goods supplied by the taxpayer (work performed, services rendered).
It is not recognized as a taxpayer's income received in the form of material benefit, material benefit received from savings on interest for the use of borrowed (credit) funds during the grace period established in accordance with Article 6.1-1 of Federal Law No. 353-FZ of December 21, 2013 "On consumer credit (loan)";
2) material benefits received from the acquisition of goods (works, services) in accordance with a civil law contract from individuals, organizations and individual entrepreneurs who are interdependent with respect to the taxpayer;
3) material benefits received from the acquisition of securities, derivative financial instruments, with the exception of securities specified in paragraph 25 of Article 217 of this Code, in the event of their acquisition during the initial placement by the issuer and securities acquired from a controlled foreign company by a taxpayer recognized as a controlling a person of such a foreign company, as well as a Russian related person of such a controlling person, provided that the income of such a controlled foreign company from the sale of these 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 this Code.
2. When a taxpayer receives income in the form of a material benefit specified in subparagraph 1 of paragraph 1 of this article, the tax base is determined as:
1) the excess of the amount of interest for the use of borrowed (credit) funds, expressed in rubles, calculated on the basis of two-thirds of the current refinancing rate established by the Central Bank of the Russian Federation as of the date of the actual receipt of income by the taxpayer, over the amount of interest calculated on the basis of the terms of the agreement;
2) the excess of the amount of interest for the use of borrowed (credit) funds, expressed in foreign currency, calculated on the basis of 9 percent per annum, over the amount of interest calculated on the basis of the terms of the agreement.
Determination of the tax base when receiving income in the form of material benefits received from savings on interest when receiving borrowed (credit) funds, calculation, withholding and transfer of tax are carried out by the tax agent in the manner prescribed by this Code.
3. When a taxpayer receives income in the form of a material benefit specified in subparagraph 2 of paragraph 1 of this article, the tax base is defined as the excess of the price of identical (homogeneous) goods (works, services) sold by persons who are interdependent with respect to the taxpayer, under normal conditions to persons who are not interdependent over the selling prices of identical (homogeneous) goods (works, services) to the taxpayer.
4. When a taxpayer receives income in the form of a material benefit specified in subparagraph 3 of paragraph 1 of this article, the tax base is defined as the excess of the market value of securities and derivative financial instruments over the amount of actual expenses of the taxpayer for their acquisition.
For the purposes of this article, the costs of acquiring securities that are the underlying asset of an option contract include the amounts paid to the seller for securities in accordance with such contract, as well as the premiums and variation margin paid on option contracts.
Material benefit does not arise when a taxpayer purchases securities under the first or second part of the REPO, provided that the parties fulfill their obligations under the first and second parts of the REPO, as well as in the case of the properly executed termination of obligations under the first or second part of the REPO on grounds other than proper execution, including the offset of similar counterclaims arising from another REPO transaction.
The market value of securities circulating on the organized securities market is determined on the basis of their market price, taking into account the maximum limit of its fluctuations, unless otherwise established by this article.
The market value of securities not traded on the organized securities market is determined on the basis of the estimated price of securities, taking into account the limiting border of its fluctuations, unless otherwise established by this article.
The market value of securities traded and not traded on the organized securities market is determined at the date of the transaction.
The procedure for determining the market price of securities, the settlement price of securities, as well as the procedure for determining the maximum limit of fluctuations in the market price are established for the purposes of this chapter by the Central Bank of the Russian Federation in agreement with the Ministry of Finance of the Russian Federation, taking into account the provisions of this paragraph.
The settlement price of an investment unit of a closed-end investment fund (interval unit investment fund) not circulating on the organized securities market is the last estimated value of the investment unit determined by the management company that carries out trust management of the property constituting the respective unit investment fund, in accordance with the legislation of the Russian Federation on investment funds, without taking into account the limit of fluctuations in the settlement price of securities.
The market value of an investment unit of a mutual investment fund (circulating and not circulating on the organized securities market) in the event of its acquisition from a management company exercising trust management of property constituting the respective unit investment fund is the last estimated value of the investment unit determined by the specified management company in accordance with with the legislation of the Russian Federation on investment funds, without taking into account the maximum limit of fluctuations in the market or settlement price of securities.
If, in accordance with the legislation of the Russian Federation on investment funds, the issuance of an investment share of a unit investment fund with limited circulation is carried out not at the estimated value of an investment share, the market value of such an investment share is the amount of funds for which one investment share is issued and which is determined in accordance with with the rules of trust management of a mutual investment fund, without taking into account the maximum limit of fluctuations.
The market value of an investment unit of an open-end unit investment fund is the last estimated value of an investment unit determined by the management company that carries out trust management of the property that constitutes the corresponding open-end unit investment fund, in accordance with the legislation of the Russian Federation on investment funds, without taking into account the maximum limit of fluctuations in the market price of securities ...
The market value of derivative financial instruments traded on an organized market is determined in accordance with paragraph 1 of Article 305 of this Code.
The market value of derivative financial instruments that are not traded on an organized market is determined in accordance with paragraph 2 of Article 305 of this Code.
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Commentary on Art. 212 of the Tax Code of the Russian Federation
1. Specificity of the rules of clause 1 of Art. 212 is that they exhaustively (that is, this list cannot be expanded) provides for the types of material benefits (for the purposes of taxation with personal income tax). These include:
1) material benefit received from savings on interest for the use of borrowed funds by the taxpayer, incl. credit funds... In this case, the following circumstances should be taken into account:
a) the lender (i.e. the person who provided the taxpayer borrowed funds) may be:
Any individual or any organization (other than a bank or other credit institution), having the status of a legal entity, who have entered into a loan agreement with the taxpayer (borrower) (under this agreement, one party (lender) transfers to the ownership of the other party (borrower) money or other things defined by generic characteristics, and the borrower undertakes to return the same amount of money to the lender (loan amount) or an equal number of other things of the same kind and quality received by him. The loan agreement is considered concluded from the moment of transfer of money or other things. Foreign currency and currency values can be the subject of a loan agreement on the territory of the Russian Federation in compliance with the rules of Art. 140, 141, 317 of the Civil Code (Article 807 of the Civil Code).
Unless otherwise provided by law or the loan agreement, the lender has the right to receive interest from the borrower on the amount of loans in the amount and in the manner determined by the agreement. In the absence in the agreement of conditions on the amount of interest, their amount is determined by the refinancing rate existing at the place of residence of the lender (and if the lender is a legal entity, at the place of its location) (while it is the same for the entire Russian Federation) on the day the borrower pays the amount of the debt or its corresponding part ... In the absence of another agreement (in the loan agreement), interest is paid monthly, until the day the loan amount is returned (clauses 1, 2, article 807 of the Civil Code). A loan agreement is considered to be interest-free (unless it expressly stipulates otherwise) in the following cases: when the agreement is concluded between citizens for an amount not exceeding 50 minimum wages (recall that for tax purposes base size 1 minimum wage is from January 1, 2001 100 rubles, Art. 5 of the Law on Minimum Wages), and is not related to the implementation of entrepreneurial activity at least one of the parties; when, under the agreement, the borrower is transferred not money, but other things determined by generic characteristics (clause 3 of article 809 of the Civil Code). However, in subparagraph 1 of paragraph 1 of Art. 212 refers to both cases of granting a loan under non-interest-bearing loan agreements, and cases when interest should be accrued under a loan agreement;
A bank (or another credit institution, if the granting of a loan to an individual is allowed by a license issued to it by the Central Bank of the Russian Federation in the prescribed manner). Borrowed funds in this case, firstly, act only in the form of monetary funds, and, secondly, are provided under a loan agreement (this is a special type of loan agreement).
Under a loan agreement, a bank or other credit organization (lender) undertakes to provide cash(loan) to the borrower in the amount and on the terms stipulated by the contract, and the borrower undertakes to return the amount received and pay interest on it (Article 819 of the Civil Code) (see more about this in the book: A.N. Guev Article-by-article commentary on part 2 Civil Code of the Russian Federation (ed. 3), pp. 424 - 442);
b) "savings on interest" (referred to in subparagraph 1 of paragraph 1 of article 212) is formed due to the fact that:
Cash under a loan agreement (or cash and other funds under a loan agreement) are provided or interest-free agreement loan, or under such a loan agreement (loan agreement), in which the amount of interest is lower than the amount of interest calculated in the manner specified in paragraph 2 of Art. 212 (see below);
Cash or other funds are provided (on the conditions mentioned above) only by organizations (including both commercial and non-commercial) and individual entrepreneurs, but not individuals who are not individual entrepreneurs (for example, if one neighbor gave a loan to another, and however, no interest was established on the loan).
In the practice of the clients of the law firm "YUKANG" a number of questions arose: do the rules of subparagraph 1 of paragraph 1 of Art. 212 of the Tax Code to cases of receipt by an individual entrepreneur of the so-called. commodity credit (under the commodity credit agreement, one party is obliged to provide the other party with things determined by generic characteristics. In this case, the rules on the loan agreement apply to such an agreement, unless otherwise provided by the commodity loan agreement and does not follow from the essence of the obligation. quantity, assortment, completeness, quality, packaging and (or) the conditions for the provided things must correspond to the same conditions in the contract of sale of goods (Articles 454 - 505, 819 - 822 of the Civil Code)? a commercial loan was provided (recall that contracts, the execution of which is associated with the transfer of monetary amounts or other things determined by generic characteristics to the ownership of the other party, may provide for the provision of a loan, including in the form of an advance payment, prepayment, deferral and payment by installments goods, works, services (the so-called commercial loan)? Are the rules on the loan agreement for a commercial loan, unless otherwise provided by the rules on the agreement from which the corresponding obligation arose and do they not contradict the essence of such an obligation (Art. 823 GK)?
By the decision of the Office of the Federal tax service for the Republic of Mordovia from 18.02.2014 N 13-09 / 01738 the decision of the lower tax authority was left unchanged. After evaluating the evidence presented in the case materials, guided by Articles 210, 212, 217, 223, 224, 346.11 of the Tax Code of the Russian Federation, Articles 807, 809 Civil Code In the Russian Federation, the court concluded that in the audited period the Entrepreneur used borrowed funds and received income in the form of savings on interest (interest-free loan). In such circumstances, the court refused to satisfy the requirements ...
The courts of appeal and cassation concluded that the inspectorate did not provide evidence that the disputed amount is a material benefit in the sense of Article 212 of the Tax Code of the Russian Federation and is the entrepreneur's income, and it has not been proven that the entrepreneur has received income from the sale real estate... Incorrect application by the courts by the provisions of Articles 40, 209, 212, 214.1, 280 of the Tax Code of the Russian Federation has not been established ...
1. The taxpayer's income received in the form of material benefit is:
1) unless otherwise provided by this subparagraph, the material benefit received from savings on interest for the taxpayer's use of borrowed (credit) funds received from organizations or individual entrepreneurs, with the exception of:
material benefits 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;
material benefits received from savings on interest for the use of borrowed (credit) funds provided for new construction or the acquisition in the territory of the Russian Federation of a residential building, apartment, room or share (stakes) in them, land plots provided for individual housing construction, and land plots on which the acquired residential buildings are located, or shares (stakes) in them;
material benefit received from savings on interest for the use of borrowed (credit) funds provided by banks located in the territory of the Russian Federation for the purpose of refinancing (on-lending) loans (credits) received for new construction or the acquisition of a residential house, apartment in the Russian Federation , rooms or shares (shares) in them, land plots provided for individual housing construction, and land plots on which the acquired residential buildings are located, or shares (shares) in them.
The material benefit specified in paragraphs three and four of this subparagraph is exempt from taxation, provided that the taxpayer has the right to receive a property tax deduction established by subparagraph 3 of paragraph 1 of Article of this Code, confirmed by the tax authority in the manner prescribed by paragraph 8 of Article of this Code.
The material benefit received from savings on interest for the taxpayer's use of borrowed (credit) funds (with the exception of the material benefit specified in paragraphs two to four of this subparagraph) is recognized as the taxpayer's income received in the form of material benefits, subject to at least one of the following conditions:
the corresponding borrowed (credit) funds received by the taxpayer from an organization or individual entrepreneur who are recognized as an interdependent person of the taxpayer or with which the taxpayer has an employment relationship;
Such savings are in fact material assistance or a form of reciprocal fulfillment by an organization or an individual entrepreneur of an obligation to the taxpayer, including payment (remuneration) for goods supplied by the taxpayer (work performed, services rendered).
It is not recognized as a taxpayer's income received in the form of material benefit, material benefit received from savings on interest for the use of borrowed (credit) funds during the grace period established in accordance with Article 6.1-1 of Federal Law No. 353-FZ of December 21, 2013 "On consumer credit (loan)";
2) material benefits received from the acquisition of goods (works, services) in accordance with a civil law contract from individuals, organizations and individual entrepreneurs who are interdependent with respect to the taxpayer;
3) material benefits received from the acquisition of securities, derivative financial instruments, with the exception of the securities specified in paragraph 25 of Article of this Code, in the event of their acquisition during the initial placement by the issuer and securities acquired from a controlled foreign company by a taxpayer recognized as a controlling person of such a foreign company, as well as a Russian related party of such a controlling person, provided that the income of such controlled foreign company from the sale of these 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 this Code.
2. When a taxpayer receives income in the form of a material benefit specified in subparagraph 1 of paragraph 1 of this article, the tax base is determined as:
1) the excess of the amount of interest for the use of borrowed (credit) funds, expressed in rubles, calculated on the basis of two-thirds of the current refinancing rate established by the Central Bank of the Russian Federation as of the date of the actual receipt of income by the taxpayer, over the amount of interest calculated on the basis of the terms of the agreement;
2) the excess of the amount of interest for the use of borrowed (credit) funds, expressed in foreign currency, calculated on the basis of 9 percent per annum, over the amount of interest calculated on the basis of the terms of the agreement.
Determination of the tax base when receiving income in the form of material benefits received from savings on interest when receiving borrowed (credit) funds, calculation, withholding and transfer of tax are carried out by the tax agent in the manner prescribed by this Code.
3. When a taxpayer receives income in the form of a material benefit specified in subparagraph 2 of paragraph 1 of this article, the tax base is defined as the excess of the price of identical (homogeneous) goods (works, services) sold by persons who are interdependent with respect to the taxpayer, under normal conditions to persons who are not interdependent over the selling prices of identical (homogeneous) goods (works, services) to the taxpayer.
4. When a taxpayer receives income in the form of a material benefit specified in subparagraph 3 of paragraph 1 of this article, the tax base is defined as the excess of the market value of securities and derivative financial instruments over the amount of actual expenses of the taxpayer for their acquisition.
For the purposes of this article, the costs of acquiring securities that are the underlying asset of an option contract include the amounts paid to the seller for securities in accordance with such contract, as well as the premiums and variation margin paid on option contracts.
Material benefit does not arise when a taxpayer purchases securities under the first or second part of the REPO, provided that the parties fulfill their obligations under the first and second parts of the REPO, as well as in the case of the properly executed termination of obligations under the first or second part of the REPO on grounds other than proper execution, including the offset of similar counterclaims arising from another REPO transaction.
The market value of securities circulating on the organized securities market is determined on the basis of their market price, taking into account the maximum limit of its fluctuations, unless otherwise established by this article.
The market value of securities not traded on the organized securities market is determined on the basis of the estimated price of securities, taking into account the limiting border of its fluctuations, unless otherwise established by this article.
The market value of securities traded and not traded on the organized securities market is determined at the date of the transaction.
The procedure for determining the market price of securities, the settlement price of securities, as well as the procedure for determining the maximum limit of fluctuations in the market price are established for the purposes of this chapter by the Central Bank of the Russian Federation in agreement with the Ministry of Finance of the Russian Federation, taking into account the provisions of this paragraph.
The settlement price of an investment unit of a closed-end investment fund (interval unit investment fund) not circulating on the organized securities market is the last estimated value of the investment unit determined by the management company that carries out trust management of the property constituting the respective unit investment fund, in accordance with the legislation of the Russian Federation on investment funds, without taking into account the limit of fluctuations in the settlement price of securities.
The market value of an investment unit of a mutual investment fund (circulating and not circulating on the organized securities market) in the event of its acquisition from a management company exercising trust management of property constituting the respective unit investment fund is the last estimated value of the investment unit determined by the specified management company in accordance with with the legislation of the Russian Federation on investment funds, without taking into account the maximum limit of fluctuations in the market or settlement price of securities.
If, in accordance with the legislation of the Russian Federation on investment funds, the issuance of an investment share of a unit investment fund with limited circulation is carried out not at the estimated value of an investment share, the market value of such an investment share is the amount of funds for which one investment share is issued and which is determined in accordance with with the rules of trust management of a mutual investment fund, without taking into account the maximum limit of fluctuations.
The market value of an investment unit of an open-end unit investment fund is the last estimated value of an investment unit determined by the management company that carries out trust management of the property that constitutes the corresponding open-end unit investment fund, in accordance with the legislation of the Russian Federation on investment funds, without taking into account the maximum limit of fluctuations in the market price of securities ...
The market value of derivative financial instruments traded on an organized market is determined in accordance with paragraph 1 of Article of this Code.
The market value of derivative financial instruments that are not traded on an organized market is determined in accordance with paragraph 2 of Article of this Code.
Commentary on Art. 212 of the Tax Code of the Russian Federation
For the purposes of calculating personal income tax, the Tax Code defines the following cases when the taxpayer receives material benefits.
1. Material benefit from savings on interest for the taxpayer's use of borrowed (credit) funds received from organizations or individual entrepreneurs. The exception is material benefit received from transactions with credit cards within the interest-free period specified in the credit card agreement.
2. Material benefit received from the acquisition of goods (works, services) in accordance with a civil law contract from individuals, organizations and individual entrepreneurs who are interdependent with respect to the taxpayer.
3. Material benefits received from the purchase of securities. Let's consider each of these situations in detail.
Material benefit from interest savings
for the use of borrowed (credit) funds
Material benefit - the amount of savings on interest when taxpayers receive borrowed (credit) funds from organizations or individual entrepreneurs on preferential terms - is determined as follows:
For ruble loans - as an excess of the amount of interest for the use of borrowed funds, expressed in rubles, calculated on the basis of 3/4 of the current refinancing rate established by the Central Bank of the Russian Federation as of the date of receipt of such funds, over the amount of interest calculated on the basis of the terms of the agreement;
For foreign currency loans - as the excess of the amount of interest for the use of borrowed funds, denominated in foreign currency, calculated on the basis of 9% per annum, over the amount of interest calculated on the basis of the terms of the agreement.
When determining the amount of material benefits, the refinancing rate is applied The Central Bank RF, established on the date of receipt of borrowed (credit) funds, regardless of whether it changed during the period of use of these funds.
Since December 26, 2005, the refinancing rate of the Central Bank of the Russian Federation is 12 percent per annum.
The tax base upon receipt of material benefits in the form of savings on interest is determined on the day of payment of interest on the received borrowed (credit) funds (but at least once a calendar year).
Material benefit is determined only if the borrowed funds are received under a loan or credit agreement.
Loan - the transfer of ownership of money or other things, defined by generic characteristics, by the lender to the borrower with the condition of the borrower returning the loan amount or an equal number of other things of the same kind and quality received by him on the basis of an agreement concluded between the parties to the transaction (Article 807 of the Civil Code of the Russian Federation).
A loan agreement between citizens must be concluded in writing if its amount exceeds at least 10 times minimum size remuneration, and if the lender is entity- regardless of the amount (clause 1 of Art. 808 of the Civil Code of the Russian Federation). In other cases, the loan agreement can be concluded orally. A loan agreement is considered concluded from the moment the money or other things are transferred.
Credit - the provision by a bank or other credit institution (lender) of funds (credit) to the borrower in the amount and on the terms stipulated by the agreement, with the return of the received sum of money and paying them interest on the loan (Art. 819 of the Civil Code of the Russian Federation).
Thus, loan agreement is in limited cases, since only banks or other credit institutions, and credit funds can be issued only in cash. Unlike a loan agreement, a loan agreement must always be concluded in writing. Failure to comply with the written form entails the invalidity of such an agreement, and it is considered null and void (Article 820 of the Civil Code of the Russian Federation).
The material benefit received from savings on interest for the use of borrowed (credit) funds by the taxpayer is taxed at the rate of 35 percent (clause 2 of article 224 of the Tax Code of the Russian Federation).
An exception to this rule is "income in the form of material benefits obtained from savings on interest for the use of targeted loans (credits) by taxpayers received from credit and other Russian organizations and actually spent by them on new construction or the acquisition of a residential building, apartment or share (stakes) in them on the territory of the Russian Federation, on the basis of documents confirming the intended use of such funds. "
In this case, the material benefit received by a taxpayer who is a resident of the Russian Federation is subject to personal income tax at the rate of 13 percent.
Please note: for individuals who are not tax residents RF, the tax on income from the amounts of material benefits in the form of savings on interest is withheld at a rate of 30 percent (clause 3 of article 224 of the Tax Code of the Russian Federation).
When determining the amount of material benefits in the form of savings on interest for the use of borrowed (credit) funds, taxable at a rate of 35 percent, tax deductions are not provided (clause 4 of article 210 of the Tax Code of the Russian Federation).
Calculate the tax on material benefits and transfer this amount to the budget. tax agent- organization or individual entrepreneur who provided a loan (credit) to an individual on favorable terms.
The tax can be withheld from any other income of the employee that he receives in the organization or from the entrepreneur (for example, from the amount of salary issued in money, dividends, material assistance, etc.), when the income is first paid in cash. In this case, the withheld tax amount cannot exceed 50 percent of the amount of payments due to be issued to the employee.
Please note: the duties of a tax agent are entrusted to the organization by Article 226 of the Tax Code of the Russian Federation and for their implementation it is not required to obtain powers of attorney from individuals for withholding and transferring tax.
If the employee does not receive other income in the organization or the period during which the tax can be withheld exceeds 12 months, the tax agent must inform his tax office(in the form 2-NDFL) and indicate the amount of tax debt of an individual. This must be done no later than one month after the employee receives income.
Material benefit is not determined in the following cases:
If the borrowed funds are received by the taxpayer from individuals who are not individual entrepreneurs;
When a taxpayer concludes a commercial loan agreement, defined by Article 823 of the Civil Code of the Russian Federation, or an agreement for the purchase of goods on credit or by installments;
In case of untimely return by an employee of the organization of previously reported amounts issued to him.
We argue the last statement.
Employees who received cash against the account are obliged, no later than three working days after the expiration of the period for which they were issued, to submit a report on the amounts spent to the accounting department of the organization and make the final settlement on them. This procedure is established by paragraph 11 of the Procedure for maintaining cash transactions in the Russian Federation, approved by the decision of the Board of Directors of the Central Bank of the Russian Federation of September 22, 1993 N 40.
Consequently, the untimely return of money by the accountable person to the organization's cash desk is a violation of the Procedure for conducting cash transactions. However, there is no punishment for this violation. current legislature does not provide.
In addition, by order of the head of the organization, any period for which money is issued on account, for example, 60 or 90 days, can be set. This will allow not only to avoid violation of cash discipline, but also the claims of the tax authorities. However, in any case, the employee does not receive material benefits.
Even if the money received on account of the employee in set time did not return, ownership of them does not pass to him. Consequently, the funds not returned on time are not the income of the accountable person. (Such income can arise only if the funds not returned on time are debited from the employee at the expense of the organization.)
In this case, there is no material benefit. As mentioned above, the loan agreement must be concluded in writing. When issuing money on account, such an agreement is not concluded, and there is no loan relationship between the organization and the employee. Therefore, there is no reason to calculate material benefits in the form of savings on interest. The employee only has a debt on the return of funds received from the organization against the account.
Material benefit received from the purchase of goods
(works, services) on preferential terms
Material benefit arises if a person buys goods (work, services) at preferential prices from an organization (individual entrepreneur), in relation to which he is an interdependent person.
The amount of material benefit in this situation is defined as the excess of the price of identical (homogeneous) goods (works, services) sold under normal conditions by this organization (individual entrepreneur) over the prices of selling goods (works, services) to the taxpayer.
Tax on the amount of material benefit received is paid by taxpayers - tax residents of the Russian Federation at the rate of 13 percent, and by taxpayers who are not tax residents of the Russian Federation - at the rate of 30 percent.
According to paragraph 1 of Article 20 of the Tax Code of the Russian Federation, organizations or individuals are considered interdependent if the relationship between them affects their economic activity... This situation is possible when:
One organization directly or indirectly (for example, through a subsidiary) owns more than 20 percent authorized capital another organization;
One individual is subordinate to another according to his official position (for example, the director of the enterprise and one of the employees, the head of the department and his subordinate);
Natural persons are spouses or relatives, adoptive parent and adopted child, guardian and ward.
Please note: the Tax Code of the Russian Federation does not provide for other formal grounds on which enterprises are automatically recognized as interdependent. Therefore, until the opposite is proven in court, the organization and its employees are not recognized. interdependent persons.
Thus, if you literally follow the norms of the Tax Code, tax authorities do not have the right to calculate material benefits if an enterprise sells products to its employees at preferential prices.
However, the court can recognize persons as interdependent in other cases. True, for this, the tax authorities must prove to the court that the relationship between these persons influenced the results of transactions for the sale of goods (works, services). This is indicated by paragraph 2 of Article 20 of the Tax Code of the Russian Federation.
Unfortunately, the existing arbitration practice suggests that the judges in many cases recognize the organization and its employees as interdependent persons. For example, in an information letter from the Supreme Of the Arbitration Court RF of March 17, 2003 N 71 indicates that, taking into account specific circumstances, a legal entity and its director can be recognized as interdependent.
The situation is even worse if the goods are sold to their employee by an individual entrepreneur. Then the material benefit will need to be calculated. Indeed, in this case, the employee is subordinate to the entrepreneur, and therefore, according to Article 20 of the Tax Code of the Russian Federation, they are considered interdependent persons.
Therefore, in order to minimize possible fiscal risks, it is necessary to avoid a situation when an organization (individual entrepreneur) sells goods to its employees at preferential prices.
The material benefit received from the purchase of securities is the difference between the amount that the buyer - an individual paid for them, and the market price of the securities, taking into account the maximum fluctuation limit of this price. This is written in paragraph 4 of Article 212 of the Tax Code of the Russian Federation. The tax on such material benefits can be paid by both the buyer of the securities and his authorized representative - the organization that sold these securities. In this case, the market price of the security must be taken on the day when the deal was concluded.
The procedure for determining the market price and the maximum limit of its fluctuations was approved by the Decree of the Federal Commission for the Securities Market of Russia dated December 24, 2003 N 03-52 / ps. Moreover, in this document it comes only about equity securities that circulate on the organized market. This means that if an employee has purchased securities from a firm that are not traded in such a market (for example, non-financial bills of exchange), then about material gain it is not necessary to speak.
The market prices of securities traded in the organized market can be obtained from the organizers of the trades or on their websites on the Internet. The maximum limit of fluctuations in the market price of the Federal Commission for the Securities Market was set equal to 20 percent.
In this situation, the tax on the amount of material benefits received by the taxpayer is calculated at the rate of 13 percent.
Judicial practice under article 212 of the Tax Code of the Russian Federation
Determination of the Supreme Court of the Russian Federation of 10.26.2017 N 303-KG17-15276 in case N A04-11406 / 2016In addition, evaluating the evidence presented in the case materials and being guided by the provisions of the Tax Code article, the courts established that in the audited period the entrepreneur used borrowed funds received from the BlagZhDservice and TST companies under loan agreements and, given the lack of documentary evidence of payment interest for the use of borrowed funds to the specified lenders, received income in the form of savings on interest (interest-free loan), in connection with which the accrual of tax on material benefits for the use of borrowed funds was recognized as legitimate.