The rate of interest on a loan agreement. Taxation of interest with corporate income tax
The accrual of interest on a loan depends on the method of its repayment. So, if the borrower repays the loan at a time, interest is calculated on the entire loan amount. If the terms of the loan provide for the possibility of partial early repayment debt, interest is first charged on the entire amount of the loan, and then on its remaining part until full repayment. In case of non-repayment of money on time, the calculation of interest under the loan agreement will be made until the final repayment of the debt by the borrower.
It should be borne in mind that in addition to this option for calculating interest on a loan, legislation Russian Federation also provides for other ways to calculate them, namely:
Remuneration in a fixed amount with a lump sum or monthly payment;
Accrual of interest on the entire amount of the debt during the term of the loan, excluding its repayment;
The accrual of interest may not be stipulated by the contract. In this case (but only if it is not a grant loan in which maximum amount debt is limited to 50 minimum wages and which can only be issued by one individual to another), interest will be accrued at the refinancing rate of the Bank of Russia, which from January 1, 2016 is equal to key rate.
Apart from simple interest Russian legislation provides for the possibility of charging compound interest. Their calculation implies that if the borrower cannot repay the interest in the required time period (for example, the current month), in the next payment period, interest will accrue on the remainder of the debt plus the amount of previous unpaid interest. Compound interest can only be applied under agreements between parties engaged in entrepreneurial activity, if this is necessary in accordance with the terms of the agreement. Most often, this type of interest is used in banking and investment activities.
To correctly calculate interest on a loan agreement, you need to know the loan amount, term, interest rate, as well as the procedure for paying interest. As a rule, in most cases, interest payments are monthly and less often - quarterly. However, there are cases when the procedure for paying interest is not specified in the contract. In this case, by default, interest is calculated and paid monthly.
1. The formula for calculating simple interest is as follows:
Loan interest amount = Loan amount * Interest rate / 365 (366) days * Number of days of using the loan;
2. Compound interest (in other words, capitalized) is calculated by multiplying the original loan amount by a value equal to (1 + r) n, where r is the interest rate (expressed in shares), and n is the number of past payment periods.
It should be understood that the final calculation formula will differ depending on whether the fixed or floating rate is provided for under the loan agreement. Calculating interest using a floating rate will be more difficult, but loans at a similar rate are now extremely rare, and most often the rate is fixed.
It is extremely important in the process of servicing the debt that all payments stipulated by the contract be made within the strictly stipulated time frame. In case of their violation, the terms of all loan agreements provide for a penalty (penalty). The late fee is also taken into account when calculating the total amount of interest on the loan. According to the law "On consumer credit (loan)" maximum size penalties cannot exceed 20% per annum (0.05% per day). If the terms of the contract do not stipulate the penalty, it is calculated according to the key rate of the Bank of Russia, information on the value of which can be found on the official website of the regulator.
federal law dated 02.12.1990 N 395-I "On banks and banking"(hereinafter referred to as the Law on Banks) specifies a number of conditions subject to mandatory agreement by the parties to the loan agreement, including interest on the loan.
So the size interest rate for a loan or the procedure for determining it is an essential condition of the loan agreement (see resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 06.03.2012 N 13567/11, FAS of the Volga District dated 06.12.2013 N F06-10306 / 13), without the agreement of which the agreement cannot be recognized as concluded.
The parties have the right to provide in the loan agreement a condition on determining the amount of the fee for the loan depending on the refinancing rate set by the Central Bank, including the right of the bank to unilaterally change the interest rate on the loan due to a change in the refinancing rate during the period of the agreement, the borrower of which is entity or individual entrepreneur(part two of Article 29 of the Banking Law). However, in order for the condition on the interest rate on the loan in this case to be considered agreed, the agreement must provide for the ratio of the interest rate to the refinancing rate of the Central Bank (for example, the agreement may contain a condition that the loan fee is equal to the refinancing rate or is set at a certain value (number of percentage points), greater or less than that rate). If the agreement only indicates the right of the bank to set the interest rate on the loan depending on the refinancing rate, but does not provide for the procedure for calculating the fee for the loan, such an agreement is recognized as not concluded. This is explained by the fact that with such a wording of the condition on the right of the bank to change the interest rate, it is impossible to establish the procedure for determining the interest rate when the CBR refinancing rate changes and the upper limit of a possible increase in the interest rate. Consequently, the condition on the interest rate is not recognized as agreed (Decree of the Federal Antimonopoly Service of the West Siberian District of September 15, 2009 N F04-5139 / 2009 (13347-A46-30)).
However, in judicial practice There is another point of view on the issue of the legal consequences of the absence of an agreement between the parties regarding the conditions specified in Art. 30 of the Banking Law. According to this position, the essential terms of the loan agreement include the conditions on the amount of the loan, the term and procedure for its provision to the borrower, the amount of interest for using the loan, the term and procedure for paying interest on the loan and repaying the loan amount. However, the fact that under any of these conditions there is no expression of the will of the parties is not a basis for recognizing the loan agreement as not concluded, since the corresponding relations of the parties can be applied general provisions Civil Code of the Russian Federation on civil law contracts and obligations, for example, Art. 311, paragraph 2 of Art. 314, Art. 316 of the Civil Code of the Russian Federation (clause 12 of the Review of Judicial Practice for Resolving Disputes Related to the Application of the Provisions Civil Code of the Russian Federation on a loan agreement sent by an information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 13, 2011 N 147).
Interest rates on loans and (or) the procedure for determining them, including determining the amount of the interest rate on a loan, depending on changes in the conditions stipulated in the loan agreement, are established by the credit institution by agreement with customers, unless otherwise provided by federal law (Article 29 banking law).
The condition on the amount of the interest rate on the loan can be agreed upon by the parties to the loan agreement both in the form of a fixed percentage, and in the form of a mechanism for determining the amount of the interest rate on the loan, depending on changes in the conditions provided for in the loan agreement. Such a condition may be, for example, the volume of turnover on the borrower's current account or the cost of attracting funds by the bank (the key rate of the Bank of Russia). In other words, the interest rate on a loan may change depending on the volume of turnover on the borrower's current account, changes in the key rate in the interbank lending market, etc. The appropriate procedure for determining the interest rate on loan agreement is used in practice and is not considered by the courts as contrary to the law (determination of the Ryazan Regional Court of May 20, 2009 N 33-774, decisions of the Arbitration Court of the Volga District of October 20, 2015 in case N A65-5644 / 2015, FAS of the Moscow District of May 11, 2010 N KG -A41 / 4035-10, the Eleventh AAC of 09/08/2015 N 11AP-11030/15, the First AAC of 09/01/2015 N 01AP-4950/15, the Seventeenth AAC of 08/03/2015 N 17AP-8011/15).
A number of features for determining the amount of interest under a consumer loan agreement are established by the Federal Law of December 21, 2013 N 353-FZ "On consumer credit(loan)" (hereinafter referred to as the Law on Consumer Credit). So, when concluding a consumer loan agreement, in the individual conditions of such an agreement, agreed upon by the bank and the borrower, the interest rate must be determined, which can be both constant and variable. The constant rate represents a rate in a fixed amount of percent per annum, and a variable - a rate in percent per annum, the value of which may vary depending on the change in the variable. Individual conditions the agreements must contain the procedure for determining the variable interest rate in accordance with the requirements of the Consumer Credit Law. In particular, the values of the variable used in calculating the variable interest rate should be determined on the basis of circumstances beyond the control of the creditor and its affiliates (clause 8 part 4, paragraph 4 part 9, part 11 article 5 , part 1. 2 article 9
The individual terms and conditions of a consumer loan agreement, including on interest on a loan, must comply with information on the conditions for granting, using and repaying a consumer loan, including information on interest rates (fixed and variable), which the bank is obliged to place in the places where services are provided (points of acceptance consumer loan applications, including on the Internet).
The bank is obliged to notify the borrower of a change in the variable interest rate no later than 7 days from the beginning of the loan period, during which the changed variable interest rate will be applied. In this case, the bank also brings to the attention of the borrower information about the full cost of the loan, calculated based on the changed value of the variable interest rate, as well as about the change in the payment schedule under the agreement (if it was previously provided to the borrower) in the manner provided for in the consumer loan agreement. 4 article 9 of the Consumer Credit Law).
According to the general rule under Art. 29 of the Law on Banks, under a loan agreement concluded with a citizen borrower, a credit institution cannot unilaterally increase the amount of interest. Exceptions to this rule are established by federal law. So, if the consumer loan agreement provides for the obligatory conclusion by the borrower of an insurance agreement (in particular, insurance against the risks of loss or damage to property, the pledge of which ensures the fulfillment of the borrower's obligations), such an agreement may also provide for the right of the bank to unilaterally increase the interest rate on the issued loan if the borrower fails to fulfill the insurance obligation for more than 30 calendar days. However, the law provides for restrictions on increasing the interest rate in this situation: it can be increased to the level of the interest rate in force at the time of conclusion of the consumer loan agreement on comparable (amount, loan repayment period) consumer loan conditions without the obligatory conclusion of an insurance contract, but not more than the rate that was applied by the bank at the time it decided to increase the interest rate due to the borrower's failure to fulfill the insurance obligation (part 11, article 7 of the Law on Consumer Credit).
The rules on a consumer loan agreement also apply to a consumer loan agreement, the lender under which can be not only a bank, but also another organization that has the right to carry out professional activities to provide consumer loans, in particular, a microfinance organization, a pawnshop, credit cooperative(clauses 1, , 5, part 1, article 3, of the Consumer Credit Law, part 2.1, article 3 of the Federal Law of July 2, 2010 N 151-FZ "On microfinance activities and microfinance organizations", part 2, article 4 of Federal Law No. 190-FZ of July 18, 2009 "On Credit Cooperation", Part 1.1 of Article 2 of Federal Law No. 196-FZ of July 19, 2007 "On Pawnshops").
For the purpose of fulfilling obligations under a loan agreement, there are two loan repayment schemes: annuity and differentiated. The difference between them is that with annuity payments, the loan is repaid monthly. equal amounts while the differentiated payments are recalculated every month. Interest is charged on the balance of the debt, due to which the amount of differentiated payments decreases with each subsequent month.
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with interest in a person acting on the basis of , hereinafter referred to as " Lender”, on the one hand, and in the person acting on the basis of , hereinafter referred to as “ Borrower”, on the other hand, hereinafter referred to as the “Parties”, have concluded this agreement, hereinafter “ Treaty" about the following:1. THE SUBJECT OF THE AGREEMENT
1.1. Under this agreement, the Lender provides the Borrower with a loan in the amount of rubles, and the Borrower undertakes to repay the Lender the loan amount and pay accrued interest for using the loan in accordance with the terms and conditions established by this agreement.
1.2. The interest rate for this agreement is % per annum.
1.3. Interest for using the Loan is accrued based on the actual number of calendar days of using the loan, while the actual number of calendar days in a year (365 or 366) is taken as the base, and the number of settlement days in a month corresponds to the actual number of calendar days in a month.
1.4. The period for accruing interest for the use of the loan begins on the day the Lender actually issues the loan amount to the Borrower or transfers the loan amount to the specified account of the Borrower and ends on the day the Loan is returned to the Lender. The Borrower undertakes to pay the accrued interest for the use of the loan on a monthly basis, not later than the last business day of the month.
2. TERMS OF ISSUANCE AND REPAYMENT OF THE LOAN
2.1. The loan is provided on the basis of this agreement.
2.2. The loan is provided by issuing the loan amount from the Lender's cash desk or transferring the loan amount to the specified account of the Borrower.
2.3. The Borrower has the right to repay the debt under the Loan and (or) interest for using it by depositing cash Money to the Lender's cash desk or transfer to non-cash form amounts owed to the settlement account of the Lender;
3. RIGHTS AND OBLIGATIONS OF THE PARTIES
3.1. The Lender undertakes to ensure the provision of a loan within working days from the date of signing by the parties of this agreement.
3.2. The Lender undertakes to provide the Borrower with a loan on the terms of this Agreement.
3.3. The Lender undertakes to advise the Borrower on all issues related to the execution of this Agreement.
3.4. The Borrower undertakes to repay the loan and pay interest for its use within the terms specified in this Agreement and in full.
4. REPAYMENT OF DEBT
4.1. The Borrower repays the Loan in accordance with the terms established by this Agreement.
4.2. The Borrower has the right to repay the Loan ahead of schedule.
4.3. In the event that the Borrower makes the final early repayment of the Loan, the Borrower shall, simultaneously with the repayment of the principal debt under the Loan, repay all accrued interest.
4.4. The date of repayment of any payments is the date of actual receipt of funds to the relevant account (accounts) of the Lender or the date of payment of the amount of the debt to the Lender's cash desk.
4.5. If the Borrower misses the maturity of any payments, the outstanding term debt is treated as overdue debt with interest accruing at the Higher Interest Rate from the date of its occurrence.
4.6. Overdue debt is considered urgent (primary) to be repaid at any time.
4.7. Repayment of the debt to the Lender is made in the following order:
- penalty fee;
- overdue interest on the Loan;
- overdue principal debt;
- urgent interest on the Loan;
- term debt principal.
5. PROCEDURE FOR SECURING THE OBLIGATIONS OF THE BORROWER
5.1. In order to ensure the repayment of the Loan, the Parties undertake to conclude Collateral Agreements and provide for other security measures.
5.2. Interim measures include: pledge of real estate; pledge Vehicle; pledge of claims, including securities; granting by the Borrower to the Lender the right to extrajudicial foreclosure directly on the subject of pledge provided for in the Collateral Agreements; guarantee; bank guarantee; retention of collateral and funds belonging to the Borrower; other measures agreed by the Parties.
5.3. The Lender shall have the right to choose the methods of securing obligations under this Agreement and their assessment.
5.4. The collateral for the Loan, taking into account liquidity, must cover the principal and accrued interest. In the event of an increase in term debt or an overdue debt, the Borrower is obliged to increase the collateral to the required size and quality.
5.5. The Security Agreements signed in pursuance of this Agreement are valid in conjunction with it and are inseparable from it. Simultaneously with the signing of this Agreement, the Guarantee Agreement No. dated "" 2020 and (or) the Guarantee Agreement No. dated "" 2020 are concluded to secure it. In the event of an increase in collateral, newly concluded contracts are indicated in the Agreements.
5.6. In case of deterioration of the physical qualities of the subject of pledge or other loss of liquid qualities by it, as well as any other security measure, the Lender has the right to demand a replacement of the method of security and choose it at its own discretion.
6. TERM OF THE CONTRACT
6.1. The term for using the loan is days from the date of the actual issuance by the Lender of the loan amount to the Borrower or the transfer of the loan amount to the specified account of the Borrower. The Borrower undertakes to make the final settlement on payment of the loan amount and accrued interest for the use of the loan to the Lender before ""2020.6.2. This agreement shall enter into force from the moment the Lender actually issues the loan amount to the Borrower or transfers the loan amount to the specified account of the Borrower and is valid until its full repayment and payment of accrued interest for using it.
7. EARLY PERFORMANCE OF OBLIGATIONS
7.1. In case of early repayment of the loan, the Borrower must notify the Lender of the early repayment no later than working days in advance.
7.2. In case of early repayment of the loan, the interest for using the loan is paid by the Borrower for the actual term of using the loan.
8. RESPONSIBILITY OF THE PARTIES
8.1. If the Borrower violates the deadlines established for making the next payment for the repayment of the loan and paying accrued interest for using it, the Lender has the right to terminate the agreement and demand from the Borrower early return the amount of the loan and the payment of interest due for the use of the loan.
8.2. From the moment the overdue debt on the Loan arises, the Borrower shall pay the Lender increased interest for the use of the overdue Loan in the amount of % per annum (hereinafter referred to as the increased Interest).
8.3. Increased Interest is accrued on the amount of the overdue Loan from the date of occurrence of the delay until the day of full repayment of the overdue Loan.
8.4. In case of late payment of Interest, the Borrower shall pay to the Lender, regardless of the payment of Interest, provided for in clause 1.2. of this Agreement, the Penalty in the amount of %, accrued on the amount of the overdue payment of Interest for each day of delay, from the date following the date of occurrence of the delay to the date of its repayment (inclusive).
8.5. The Borrower's obligations to repay the Loan and pay Interest (including increased interest) shall be deemed fulfilled in full from the date of receipt of funds to the settlement account and (or) to the Lender's cash desk.
8.6. With the consent of the Lender, the obligations of the Borrower to repay the Loan and pay Interest may be fulfilled in other ways that do not contradict the current legislation of the Russian Federation.
8.7. In the event that the Borrower violated the deadline set for making the next payment for the repayment of the loan and paying accrued interest for using it, and the Lender did not exercise the right provided for in clause 7.1. of this agreement, the Borrower is obliged to pay the Lender interest for the use of the loan, accrued according to the rules provided for in paragraphs 1.2-1.5 of this agreement for the entire actual period of using the loan.
8.8. The Borrower shall reimburse the Lender for all costs associated with the collection of debt under this Agreement.
8.9. The Borrower's refusal to repay the debt to repay the loan and pay the accrued interest for using it, or the violation of the terms of repayment of the Borrower's debt established by this Agreement, serves as a basis for limiting its possibilities for further borrowing.
9. FINAL PROVISIONS
9.1. In everything that is not reflected in this agreement, the parties will be guided by the current legislation of the Russian Federation.
9.2. The date of fulfillment of obligations under the agreement by the Borrower is the date of full repayment of the debt to repay the loan and pay accrued interest for its use.
9.3. All disputes and disagreements arising during the validity of this agreement, the parties will try to resolve through negotiations.
9.4. If the dispute is not settled, then it is subject to resolution in the manner prescribed by the current legislation of the Russian Federation.
9.5. Changes and additions to this Agreement are carried out in the manner prescribed by applicable law.
9.6. This Agreement is made in two copies of equal legal force, one for each party.
10. LEGAL ADDRESSES AND BANK DETAILS OF THE PARTIES
Lender
Borrower Jur. address: Postal address: TIN: KPP: Bank: Settlement/account: Corr./account: BIC:
There is an unwritten law in the economy, according to which even money costs money. It is in very good agreement with the provisions on legal interest, which were introduced into the Russian market in 2015. The then norm dramatically changed the taxation of all organizations using the accrual method. A year later, the wording of the law was changed.
What is meant by "legitimate interest", how they affect taxation, what has changed for businessmen with changes in the legislative norm, we will understand in this article.
What is legal interest
Civil Code of the Russian Federation in Art. 317.1 says that interest must be charged for any use of money within a specified period. In the text of the law, they are not referred to as "legal", this term has simply entered into the everyday life of businessmen. speech goes about " percent on monetary obligations ».
According to the norm of the legislation, a monetary obligation is considered:
- financial loan;
- money paid with a delay;
- deferment or installment payment;
- advances;
- prepayment, etc.
All types of monetary obligations on which interest should be paid are listed in Art. 823 of the Civil Code of the Russian Federation.
ATTENTION! Legal interest is not a penalty that accrues for late payments or improper withholding of money. Liability in the form of a fine provides for the payment of interest under paragraph 1 of Art. 395 of the Civil Code of the Russian Federation for the use of other people's finances. And legal interest is paid regardless of whether the payment was overdue or not - simply for the very fact of using the counterparty's money.
Initial legal interest
Federal Law No. 42 dated March 08, 2015 introduced into force Article 317.1 of the Civil Code of the Russian Federation, which contained requirements for the payment of interest on monetary obligations. Commercial structures operating under contracts already concluded before July 1, 2015, when the law came into force, were somewhat confused. According to the norm of the law, unless otherwise stipulated otherwise, the aforementioned legal interest is calculated automatically. But what about already existing agreements in which this issue was not addressed?
If the parties are not going to take into account the newly introduced interest, they will have to renegotiate contracts, make changes to them. If the contract is not changed and legal interest is accrued, then they must be reflected when calculating income tax (clause 6 of article 271 of the Tax Code of the Russian Federation) or included in expenses (clause 8 of article 272 of the Tax Code of the Russian Federation).
Both are rather problematic in the scale of short terms and a large number of contracts.
In connection with this complexity, on July 3, 2016, the President of the Russian Federation signed Law No. 315-FZ on the introduction of an amendment to this legislative norm.
Modern edition of the rule on legal interest
From August 1, 2016, the already updated version of Art. 317.1 of the Civil Code of the Russian Federation, which eliminated the above misunderstandings. The amendment states that legal interest is applied only if it is expressly provided for in the text of the agreement, that is, their accrual "by default" has been abolished, that very thing that has introduced confusion and misunderstanding.
IMPORTANT! In the "risk zone" there are agreements concluded during the period of "interlegislation" - from June 1, 2015 to August 1, 2016, because laws do not have retroactive effect. Therefore, under such contracts, special attention should be paid to whether legal interest is taken into account as part of income (or expenses). This requires an audit of past documentation and, based on its results, either a recalculation or the conclusion of an additional agreement on the non-accrual of legal interest during this time.
New provisions of Art. 317.1 are expanded in the sense that they no longer apply only to commercial organizations, but also to individuals and non-profit organizations.
Taxation on legal interest
The Ministry of Finance of the Russian Federation in a letter dated August 03, 2016 No. 03-03-06/1/45600 came to the conclusion that if the parties to the agreement exercised the right to establish the payment of legal interest, then the creditor will thereby increase tax base regarding VAT. Naturally, this applies to those finances that went to pay for goods, works, services subject to VAT.
This letter took place after the introduction of the amendment, and before that, the Ministry of Finance adhered to the position that VAT is not allocated from the amount of legal interest.
Thus, with contracts concluded after August 1, 2016, everything is clear - legal interest is included in VAT. And what about the agreements of the period of "interlegislation" and concluded before July 1, 2015? Indeed, under most of the agreements, the creditor did not intend to receive additional income in the form of legal interest. There are 2 possible reasons for this situation:
- Potential income that the party did not intend to receive, since legal interest had not yet been introduced at the time of the conclusion of the contract, cannot be considered a receipt, which means that it is not included in the VAT base.
- The nature of legitimate interest is almost identical to ordinary commercial loans, which means that it is possible to extend to the former an extremely clear position on VAT in relation to the latter. According to the letters of the Ministry of Finance of the Russian Federation dated July 4, 2015 No. 03-07-05 / 32290 and May 21, 2015 No. 03-07-05 / 29303, interest on a commercial loan is not subject to value added tax.
SO: VAT charges on contracts that do not contain legal interest agreements are not required. They must be recognized at the end of the reporting period, whenever they are actually paid. These amounts are included in the composition (clause 6 of article 250 of the Tax Code of the Russian Federation).
Calculation of legal interest
As we noted, legal interest is not a monetary sanction, therefore, its amount cannot be calculated according to the norms of Art. 395 of the Civil Code of the Russian Federation, as was done earlier for the payment of penalties for monetary obligations. It is necessary to calculate the remuneration for the use of other people's finances, performed lawfully, and not with violations.
The interest rate at which the calculation is made may be specified in the contract or not specifically agreed. If there is no indication of it in the text of the agreement, then the data of the Central Bank of the Russian Federation on the refinancing rate are used, from January 1, 2016 equal to the key rate, which is 9% as of July 2017. But it should be taken into account when exactly the contract was concluded, because at different times different legal norms were in force:
- before June 1, 2015 - legal interest is not charged;
- from June 1, 2015 to August 1, 2016 (“interlegislation”) - calculation at the rate for late payments on bank deposits;
- after August 1, 2016 - at the key rate of the Central Bank of the Russian Federation.
As a rule, the calculation is performed for each day of the fulfillment of the monetary obligation.
FOR EXAMPLE. The company entered into an agreement on the supply of raw materials in the amount of 20,000 rubles, which, according to the terms of the agreement, must be paid within a week. The text of the agreement included a condition on the calculation of legal interest. The rate was not specified. Payment was made on time, on the 7th day.
Legal interest must be charged on the payment amount for 7 days of using the funds. Because there was no special conditions regarding the increase or decrease in the rate, it will be equal to the key one - 9% per year. The legal interest will be: 9% / 365 (days per year) - 0.024% per day, and per week - 0.168%. In this case, taking into account the amount of the transaction, the buyer must pay 33.6 rubles. for a week of using funds that have become strangers since the conclusion of the contract.
Legislation (Article 819 of the Civil Code of the Russian Federation) establishes an imperative requirement for the payment of interest on a loan. The amount of interest is determined in the relevant agreement.
In accordance with Art. 30 of the Federal Law "On Banks and Banking", among other essential terms of the loan agreement, interest rates on loans should be indicated. In addition, Art. 819 of the Civil Code of the Russian Federation stipulates that the loan agreement is interest-bearing. The price condition can be determined using auxiliary norms. If there is no condition on the amount of the interest rate in the loan agreement, then, in our opinion, one should be guided by Art. 809 of the Civil Code of the Russian Federation. The norm of this article can be regarded as a special case arising from general rule established by paragraph 3 of Art. 424 of the Civil Code of the Russian Federation. The possibility of applying to the regulation of the loan agreement is established in paragraph 2 of Art. 819 of the Civil Code of the Russian Federation. In the absence of a clause on the amount of interest in the agreement, their amount is determined by the existing rate at the place of residence of the lender (if the lender is a legal entity, then at its location) rate bank interest(refinancing rate) on the day the borrower pays the amount of the debt or its corresponding part (clause 1, article 809 of the Civil Code of the Russian Federation).
Based on the second paragraph of Art. 30 of the Federal Law "On Banks and Banking", some experts consider the condition on interest to be an essential condition of the loan agreement. Moreover, the application of paragraph 1 of Art. 809 of the Civil Code of the Russian Federation in this case allegedly prevents the meaning of paragraph 2 of Art. 819 of the Civil Code of the Russian Federation, which consists in the unconditionally compensated nature of the loan agreement. The absence of an interest rate in the loan agreement is compared with the failure of the store to set price tags for goods. It is assumed that if the lender and the borrower in the loan agreement do not reach an agreement on the interest payable, such a loan agreement will be considered not concluded. In this, in particular, a loan agreement differs from a cash loan agreement. The loan agreement is considered concluded even if there is no interest clause in it, since clause 1 of Art. 809 of the Civil Code of the Russian Federation allows the existence of a loan agreement in which there is no condition on the amount of interest. Some lawyers, analyzing the legal concept of a loan agreement in Art. 819, go even further, recognizing as an essential condition of the loan agreement, by virtue of the indication of the law, not only the amount of interest, but even the procedure for their payment. Meanwhile, the legislator determined that, unless otherwise provided by the agreement, interest is paid monthly until the day the loan amount is returned (clause 2, article 809 of the Civil Code of the Russian Federation).
Other lawyers, on the contrary, believe that the absence of an agreement on the price in the loan agreement as a general rule does not discredit the legal force of the agreement. In Russian law, in the absence of a clause on interest in the contract, the creditor has the right to demand their payment in the amount determined in accordance with paragraph 1 of Art. 809 of the Civil Code of the Russian Federation, i.e. at the refinancing rate at the location of the creditor on the day the borrower pays the amount of the debt or its corresponding part.
This position is confirmed judicial practice. The absence in the loan agreement of a specific interest rate for the use of the loan does not entail the recognition of a transaction that has not been concluded as a whole (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated June 18, 2002 No. 2327/02). A more general conclusion was made in the joint resolution of the plenum of the Supreme Court of the Russian Federation and the plenum of the Supreme Arbitration Court of the Russian Federation dated July 1, 1996 No. 6/8 “On Certain Issues Related to the Application of Part One of the Civil Code of the Russian Federation” (p. 54).
In accordance with the regulatory requirements of the Bank of Russia, interest on credit transactions credit organizations are accrued either under simple interest formulas or compound interest formulas, using either a fixed or floating interest rate. The method of calculating interest applicable to a particular loan is determined by the relevant agreement.
It is important to emphasize that interest is accrued not from the moment the contract is concluded, but from the moment it is received loan funds to the borrower's account.
If the Central Bank of the Russian Federation changes the refinancing rate, the lender has the right to unilaterally increase the amount of interest for the use of borrowed funds only if this right is provided for in the loan agreement (clause 1, article 450 of the Civil Code of the Russian Federation). In this regard, often loan agreements contain the following conditions: “the lender has the right to unilaterally reduce the interest rate and, at its discretion, increase the interest rate under the agreement, including, but not exclusively, subject to the Bank of Russia making decisions on increase in the discount rate. In this case, the lender is obliged to notify the borrower in writing.
In the course of fulfilling obligations, the most frequent violation of obligations is the failure to repay a loan in set time. In this regard, we focus on the fact that current legislature(Article 811 of the Civil Code of the Russian Federation) provides for the right of the lender to recover from the borrower in addition to the loan amount and interest provided for in the agreement. Also, interest in the amount provided for in paragraph 1 of Art. 395 of the Civil Code of the Russian Federation from the day when the amount was supposed to be returned until the day it was returned to the lender.
In practice, often, loan agreements provide that in case of late repayment of the loan, the borrower pays increased interest and a penalty. In this regard, the question arises about the legality of applying the sanction in the form of increased interest. In judicial practice, increased interest is considered as a measure of civil liability. At the same time, it can be concluded that, on the one hand, this type of liability is not identical to the penalty, but, on the other hand, the recovery of both the penalty and increased interest under the same contract seems difficult. Such a conclusion follows from the joint resolution of the Plenums of the Supreme Court of the Russian Federation No. 13/14 dated October 8, 1998, which notes that “if there are conditions in the contract for accruing increased interest in case of delay in repaying the debt. As well as penalties for the same violation (with the exception of a penalty), the creditor has the right to demand the application of one of the measures of liability, without proving the fact and amount of losses incurred by him in the event of non-fulfillment of the monetary obligation.
To a loan agreement, the borrower of which is a citizen, while the loan is not associated with his entrepreneurial activity, applicable following rules. By virtue of the general rule established by Art. 315 of the Civil Code of the Russian Federation, such a loan can be repaid ahead of schedule if this opportunity not expressly excluded by the loan agreement.
Early repayment of funds under a loan agreement is also possible in case of a corresponding request from the bank. Such a right to demand early repayment of the loan may arise in cases provided for by law and the contract.
The law provides for the following grounds for the bank to have the right to demand early repayment of the loan. In accordance with Art. 813 of the Civil Code of the Russian Federation if the borrower fails to fulfill the obligations stipulated by the loan agreement to ensure the return of the loan amount. And also in case of loss of security or deterioration of its conditions due to circumstances for which the lender is not responsible, the lender has the right to demand from the borrower early repayment of the loan amount and payment of interest due, unless otherwise provided by the agreement.
Another reason may take place when providing a targeted loan. In case of use target loan not for the established purposes, as well as when the borrower cannot ensure the possibility for the lender to exercise control over the intended use of the loan amount.
The following reason occurs when the agreement provides for the return of the loan in installments (in installments) and the borrower has violated the deadline set for the return of the next part of the loan. In this case, the lender has the right to demand early repayment of the entire remaining amount of the loan, together with the interest due. At the same time, “interest due” should be understood as interest not until the day of the actual early repayment of funds, but until the deadline for repayment of the entire loan amount established by the agreement.
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