According with paragraph 1 of Art. 807 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) under a loan agreement, one party (the lender) represents money or other things specified by generic characteristics in the ownership of the other party (borrower), and the borrower undertakes to return to the lender the same amount of money (loan amount) or equal the number of other things he has received of the same kind and quality.
According to paragraph 1 of Art. 810 of the Civil Code of the Russian Federation, the Borrower is obliged to return to the lender the amount of the loan received on time and in the manner prescribed by the loan agreement. In cases where the repayment period is not established by the contract or determined by the moment of demand, the loan amount must be returned by the borrower within thirty days from the day the lender submits a demand for this, unless otherwise provided by the contract. Therefore, in accordance with Art. 810 of the Civil Code of the Russian Federation, the funds transferred by the participant should be returned by the organization (LLC) to this participant within thirty days from the date of presentation of a demand for return of this amount.
As for the limitation period, in according with Art. 196 Civil Code in the general case, it is 3 years. The running of the limitation period starts from the day when the person found out or should have learned about the violation of his right. This is stated in paragraph 1 of Art. 200 Civil Code of the Russian Federation. Therefore, according to general rules, the running of the limitation period under the loan agreement will be calculated from the day fixed by the agreement for loan repayment.
If the loan repayment term is not established by the agreement or determined by the demand moment, the loan amount, as specified in cl. 810 of the Civil Code of the Russian Federation, must be returned by the borrower within 30 days from the day the lender submits a claim for this, unless otherwise provided by the contract. Thus, if there is no condition in the loan agreement for the date of its repayment or loan repayment is determined by the time of demand, then the limitation period starts to run at the end of 30 days from the day the creditor claims the return (unless otherwise stipulated by the loan agreement).
The Tax Code of the Russian Federation (hereinafter the Tax Code of the Russian Federation) does not contain conditions that allow the tax authority, when checking the correctness of the USN calculation, to put the amount of a cash loan returned to the Company in the proceeds to the Company if the lender did not file a claim for return of the amount.
Funds, received under a cash loan agreement, don`t apply to the borrower's income (subparagraph 1, clause 1, Article 346.15, subparagraph 10, clause 1, Article 251 of the Tax Code of the Russian Federation).
The amount of money returned to an individual (lender) within the money loan received from him is not his income (Article 41, subparagraph 1, clause 1, article 208 of the Tax Code of the Russian Federation, Letter of the Moscow Department of the Federal Tax Service of Russia for 30.09. 2009 No. 20-14 / 3/101546). Moreover, the physical person in this case can`t arise and material benefit (Article 212 of the Tax Code of the Russian Federation).
Furthermore, in according with Art. 41 of the RF Tax Code, income is recognized as an economic benefit in cash or in kind, taken into account if it is possible to evaluate it and to the extent that such benefit can be assessed, and determined in accordance with the chapters "Personal Income Tax", "Income Tax organizations "of the Tax Code. The procedure for determining the material benefit and its valuation in obtaining an interest-free loan ch. 25 of the Tax Code is not established. Thus, the material benefit received by the organization from the use of an interest-free loan does not increase the tax base for income tax and, therefore, is not taken into account when determining the income of an organization located on the USN. Given the foregoing, we can conclude that this borrowing scheme does not contain tax risks.
If the borrowing weren`t made in cash but in securities, the tax risks for participants in the transaction would be significant (this applies to loan agreements concluded after January 1, 2010).
Thus, the procedure for taxation of loans with securities is established art. 282.1 of the Tax Code. Until January 1, 2010, the Tax Code of the Russian Federation did not contain special provisions regulating the taxation of such operations (clause 29 of Article 2, part 1 of Article 17 of Law No. 281-FZ). In this case, the provisions of Art. 282.1 of the Tax Code of the Russian Federation are applied only in respect of loan agreements concluded since January 1, 2010 (see also Letter No. 03-03-06 / 2/30 of the Ministry of Finance of the Russian Federation of February 16, 2010). If the loan agreement was concluded in 2009 and earlier, in 2010, for the taxation of this transaction, the provisions of Ch. 25, which acted in 2009.
The subject of a loan can only be things that certain generic attributes indicate. That is, things that do not have individual characteristics (Section 1, Article 807 of the Civil Code of the Russian Federation). Therefore, the subject of the Federal Law No. 39-FZ of April 22, 1996 "On the Securities Market" and para. 5 p.1 Art. 14 of the Federal Law of November 29, 2001 No. 156-FZ "On Investment Funds"). Non-equity securities, such as, for example, bills, assign to the holder an individual volume of rights, and therefore can`t be the subject of a loan.
According to paragraph 2 of Art. 282.1 of the Tax Code of the Russian Federation in the event that the loan agreement was fixed for the loan repayment period, but after one year from the loan commencement date, the securities were not returned by the borrower to the creditor, then after one year from the loan commencement date, the borrower recognizes non- the amount calculated on the basis of the market price (the settlement price) of securities, determined in accordance with Art. 280 of the Tax Code, as of the date of the loan commencement. Upon subsequent sale of securities received under a loan agreement, the costs of their acquisition are recognized as equal to the amount of income included in the tax base, in accordance with Art. 250 of the Tax Code.