Controlled debt to a foreign organization. “Controlled” interest on loans from foreigners Limiting interest on controlled debt

Controlled debt is a term that appeared in the tax legislation in 2002. Represents outstanding debt between companies where the debtor is a Russian company and the creditor is a foreign company. How is loan interest calculated? What are the nuances of taxation?

Legislative regulation

“Peculiarities of accounting for interest on debt obligations” - Article 269 of the Tax Code of the Russian Federation. This is the main article to rely on when it comes to controlled debt. In 2005, Federal Law No. 58 appeared, which legalized the expansion of the article in terms of the circle of creditors. Federal Law No. 25, adopted at the beginning of 2018, made it possible to supplement the article of the Tax Code. The new wording refers to situations in which the debt is not recognized as controlled. These include:

A foreign company - a creditor, has placed bonds and receives income.

A legal entity or individual - the creditor is an interdependent organization, a resident of the Russian Federation during the reporting period.

A creditor that has an affiliated foreign enterprise has no debts to it during the reporting period.

There have been changes in the rules for calculating interest on such loans.

How is controlled debt formed?

A debt that has arisen to a foreign company becomes controllable in the following situations:

The loan was taken from a foreign company that owns at least a fifth of the Russian one. It doesn't matter if it's direct or indirect.

The debt appeared before a Russian company, but it is affiliated with a foreign one.

The creditor is Russian, but a foreign company acted as a guarantor or guarantor.

The share of foreign capital in the authorized capital of the creditor cannot be less than 20%. Otherwise, debt control by a foreign company is not possible.

Outstanding loans subject to debt control include:

exceeding the capitalization of the debtor company by 3 times;

exceeding the capitalization of a group of companies, financial institutions - 12.5 times.

As soon as the debt becomes controllable, it is necessary to pay interest to foreign partners for using the money. The legal way of their deduction is dividends.

Debt calculation

The Tax Code, in an effort to reduce the tax burden on businesses, provides for a number of restrictions on interest. The system includes the following conditions:

Debt in Russian rubles is subject to an interest rate of 75 to 125%. It is subject to review annually.

A loan in foreign currency depends on the rate of a foreign country. It is allowed to increase it by 4-7 points. This applies to the euro and pound sterling.

Debt in Japanese yen and Swiss francs is calculated at the LIBOR rate. For the yen, it increases by 2 points, and for the franc by 5.

Interest on debt can be written off as expenses at the end of the reporting period. The tax rate is calculated taking into account the capitalization ratio.

The nuances of debt formation

The Ministry of Finance issued Letter No. 23476 in 2013. It contains a number of clarifications in determining the relationship between the debtor and the creditor. The following points must be met:

The required share of foreign capital from the creditor company must be confirmed.

With cross ownership, there is an entry of founders from two sides.

Ownership by ring type is proved by building a chain of beneficiaries.

It is also required to comply with the concept of affiliates, as partners who are in a legal or factual relationship and are able to influence each other's actions.

In a situation where during the year the ratio between its own capital and foreign capital has changed, the Ministry of Finance makes clarifications:

There is no need to recalculate expenses in the current year.

The calculation of the costs associated with the transfer of interest is carried out in a discrete or discontinuous way.

The calculation for the end date of each month is made separately. If you need to recalculate the old periods, you need to re-generate the report for each month.

If the foreign firm has left the founders of the creditor, then the loan ceases to be controlled.

To avoid double taxation, it has been established at the global level that companies must include an appropriate clause in the agreement between them, explaining the procedure for paying taxes. For example, if a domestic company deducts payments to a foreign company, then the income of the second party is recorded in the country of the payer.

If the debt to a foreign creditor significantly exceeds equity, then a number of nuances are taken into account when calculating controlled debt:

The loan interest limit is set to 0.

Any income is treated as a dividend.

When determining costs, interest paid is not taken into account.

Since 2017, the interdependence between companies is confirmed only by an extract from the Unified State Register of Legal Entities, which lists a foreign investor partner.

This concept appeared in the Tax Code after 2002, when Article 25 of the Tax Code of the Russian Federation “Corporate Income Tax” became legal. Controlled debt is a rather complex phenomenon that has been subject to many discussions related to its insufficient regulation. As a result, numerous amendments were made to existing laws. The last update took place in February 2020.

What it is

Dear readers! The article talks about typical ways to solve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:

APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and 7 days a week.

It's fast and IS FREE!

Before dealing with this concept in detail, its essence and causes should be clarified. The lack of own funds from the company leads to the fact that it borrows money from other organizations. Moreover, the loan takes any form. If it is taken from a foreign firm, controlled debt can form.

Debt becomes controllable if it arises:

To a foreign company that owns at least a fifth of the authorized capital of the Russian company-debtor. Ownership can be either direct or indirect.
Before a domestic firm, which is considered an affiliate of this foreign enterprise.
To a domestic company, for whose debt a foreign company or its affiliated facility ensures the fulfillment of a credit obligation by means of a surety, provision of a guarantee or other means.

In this case, the debt must be three times the difference between the sum of assets and credit obligations of the debtor. For enterprises engaged in leasing operations, this excess should be 12.5 times.

An affiliate is a natural or legal person that can significantly influence the work of organizations or individual entrepreneurs.

Previously, debt became controllable only if the loan was taken from a foreign company. Debts to domestic organizations, even those affiliated, were not taken into account. Despite the presence of a common owner, the inspection authorities failed to prove the presence of a controlled debt of one Russian company to another. In this regard, amendments were made to the current regulations.

Legislation

Everything related to controllable debt is regulated by Article 269 of the Tax Code of the Russian Federation. Its name is “Peculiarities of accounting for interest on debt obligations”. The first innovations that expanded the circle of creditors, under which domestic firms began to fall, occurred in June 2005. Then Federal Law No. 58 was signed, which affected the changes in the second part of the Tax Code.

In 2020, a new law No. 25 was issued, with the help of which changes were also made to the second part of the code. The article is supplemented by the conditions under which the debt will not be declared controlled, for example, in the event of a debt arising from the placement of bonds by foreign companies and receiving dividends from them.

Another exception to the non-recognition of non-controllable liabilities to domestic affiliates occurs when both conditions are met simultaneously:

the debt was formed to an interdependent individual or legal entity, which during the entire reporting period was a tax resident of the Russian Federation;
the individual or legal entity to which the debt has arisen has no outstanding obligations to an affiliated foreign enterprise during the reporting period.

The updated version establishes a scheme for recognizing liabilities as comparable, and also corrects the rules for accounting for interest on such debts. The changes will come into effect at the beginning of 2020.

How interest is calculated

Before you begin to study the calculation rules, you should understand what is included in the composition of controlled debt. It consists of interest accrued on controlled liabilities, the amount of which does not exceed the total value of interest included in the calculation.

To calculate the marginal interest rate, the following rules must be followed:

At the end of each reporting period, the payer must transfer the maximum possible amount of interest. This value is the ratio of the amount of interest calculated on controlled debt at the end of the period to the capitalization ratio.
This ratio is also taken at the end date of the interval and is obtained by dividing the total amount of outstanding controlled liabilities by the size of the authorized capital and by 3 or 12.5 for leasing firms.
At the same time, arrears on fees and loans, deferred and overdue payments are not included in the authorized capital.

The basic rule for calculating controllable debts is that it is carried out on the final date of the tax interval. And the estimated stages of determining income tax, according to the law, are 3, 6 and 9 months.

The percentage of controlled liabilities, taken into account in income tax expenses, is calculated according to the following lines of the balance sheet:

column 300 - assets;
column 690 plus 590 - obligations;
column 623 plus 624 - tax debts.

It is more convenient to write the calculation in the form of a formula that clearly reflects its essence:

Spread = Sfact% x CoefCap, where:

Spread - a limit on the amount of interest that becomes expenses and contributes to a decrease in the tax base;
Сfact% – accrued interest amount;
Coefficient Cap - coefficient of capitalization.

To find the latter, the following formula is used:

Coefficient Cap \u003d Skz / Sobcap / 3, where:

Skz - the amount of outstanding controlled debt;
SobKap - the size of the equity fund of the borrowing enterprise.

If the amount of own funds is equal to zero at the end of the period, interest on controlled debt in this reporting period is not taken into account.

Controlled Debt Management

Interest on such debt is recognized as dividends. But their accounting differs from the control of standard dividends. For them, the third sheet of the income tax declaration is filled out, and for interest dividends, a special form of KND 1151056 is issued, referred to as “Tax calculation on the amounts of income paid to foreign organizations and taxes withheld”.

There are difficulties in taxing such dividends. There are three main difficulties:

The tax base is formed on an accrual basis. Along with this, the payment of taxes on interest dividends, as well as the recognition of debt as controlled, is carried out on the final day of the reporting period. Data in the reporting form are entered taking into account the amounts paid to foreign companies.
Interest dividends paid by a foreign company to which there is a controlled debt are subject to a tax rate, taking into account the guidelines of international agreements. In some cases, the tax authorities consider that it is possible to apply the controlled debt provision when interest on loans is deducted from the tax base. This will avoid double taxation.
If there is indirect affiliation, which is accompanied by the emergence of controlled debt, the borrower is not required to calculate and withhold tax. He must take into account the interest on the loan as part of the expense item.
The submission of reporting documentation and the transfer of funds may be accompanied by the fact that the tax authorities reclassify the payment into interest dividends, as well as vice versa.

It is possible to overcome all difficulties if you clearly know the interpretation of legislative norms. When submitting reports to the tax office, you should additionally draw up an explanation indicating the applicable regulations in accordance with which the report was generated.

Controlled and uncontrolled liabilities

Agreements on loans and other debt payments, including those on securities, are valid for one reporting period. Upon its outcome, they become realized and are subject to attribution to the number of non-operating expenses.

The same rule applies to interest on loans. After the reporting period, they should be attributed to non-operating expenses. Therefore, in the absence of controlled debt at the end of the period, interest accruals for this period are not taken into account.

If the debt in the previous stages was not recognized as controlled, but was attributed to it only in the current one, recalculation for previous intervals will not be carried out. And the maximum amount of interest is calculated starting from the current period and future periods.

Based on the tax rate and taxable income, taxpayers calculate the amount of the advance payment. If the debt was controlled in the current period, and lost this recognition in subsequent periods, interest payments are not recalculated.

Controlled debt to a foreign organization is a rather serious issue. The financial crisis has contributed to the fact that many legal entities have become insolvent. Hence their debts to creditors began to grow. And the financial activities associated with loans began to take the form of capital transactions.

Any deviation from the legislative norms, the tax authorities will establish immediately. Therefore, it is extremely important to be guided by federal laws and acts when recognizing such a debt and calculating interest. At the same time, it is necessary to follow all the innovations regarding this issue. Do not use the old provisions.

Interest on controlled debt is accounted for in a special manner. It all depends on the amount of debt and the size of the equity capital of the organization.

If the amount of controlled debt is more than 3 times the amount of the organization's own capital, then interest should be normalized according to the rules of clause 2 of Art. 269 of the Tax Code of the Russian Federation. If there is no such excess, then also take into account the interest based on the actual rate specified in the contract.

Interest on controlled debt

For debt obligations in a controlled transaction, the organization has the right to take into account, when calculating income tax, interest calculated on the basis of the actual rate, but only if this rate is less than the maximum value of the limit value range.

Interest limits on controlled debt can be tied to:

to the key rate of the Bank of Russia;
international rates EURIBOR, SHIBOR, LIBOR.

It all depends on the currency in which the obligations are drawn up. So, for example, for a contract in euro, an interval is set from the EURIBOR + 4% rate to the EURIBOR + 7% rate. This follows from the provisions of paragraph 3 of clause 1, clauses 1.1, 1.2 of Article 269 of the Tax Code of the Russian Federation.

As a general rule, include accrued interest in expenses without restrictions, based on the actual rate stipulated by the terms of the transaction. If the transaction is recognized as controlled, then in the calculation of income tax, interest can be taken into account, calculated on the basis of the limit value. This follows from the provisions of Article 269 of the Tax Code of the Russian Federation.

Controlled Debt: Interest Calculation

The procedure for accounting for interest on controlled debt for tax purposes depends on its amount as of the last day of the reporting (tax) period. It is equal to the total amount of controlled debts for all debt obligations that arise in different cases. Debt obligations are loans (including commodity and commercial), loans, bank deposits and accounts and other borrowings, regardless of the method of registration. The amount of interest accrued on them is not included in the amount of debt obligations (clause 1 of article 269 of the Tax Code).

If the amount of controlled debt on the last day of the reporting (tax) period exceeds the equity of the organization by no more than three times, then the interest accrued for this period should be taken into account in the general manner. Compare with equity the total amount of all controlled liabilities.

An organization engaged in leasing activities is entitled to apply the general procedure for accounting for interest if the amount of controlled debt exceeds its own capital by no more than 12.5 times. This rule is for organizations whose income from leasing activities for the reporting (tax) period is at least 90 percent of all income. The calculation includes income that is taken into account when calculating income tax (paragraph 2, clause 3, article 269 of the Tax Code).

If the amount of controlled debt on the last day of the reporting (tax) period exceeds the equity capital of the organization by more than three times, then take into account the interest accrued for this period in a special manner. An organization that engages in leasing activities is required to apply a special interest accounting procedure if the amount of controlled debt exceeds its equity capital by more than 12.5 times.

BASIC: income tax

When calculating income tax, take into account interest on controlled debt as part of non-operating expenses (subclause 2, clause 1, article 265 of the Tax Code). If the organization uses the accrual method, then include the accrued interest in the expenses for the last day of the reporting (tax) period (paragraph 1, clause 3, article 269 of the Tax Code). If the organization uses the cash method, then include the accrued interest in expenses for the last day of the reporting (tax) period in which they were paid (paragraph 1, clause 3, article 269, clause 3, article 273 of the Tax Code).

How to apply the “thin capitalization rules” to interest on controlled debt? When taxing profits, interest on controlled debt can only be taken into account within the limits (paragraph 3 of article 269, subparagraph 2 of paragraph 1 of article 265 of the Tax Code). Use the following rules to determine the percentage limit.

On the last day of each reporting (tax) period, calculate the maximum amount of interest on controlled debt taken into account when calculating income tax. In this case, the calculation of interest on controlled debt is carried out according to the formula:

The amount of interest accrued in the reporting (tax) period means interest accrued in the last quarter (month) of the reporting (tax) period. Thus, determine the maximum amount of interest separately at the end of each reporting period, and not on an accrual basis. When changing the ratio of the amount of outstanding controlled debt and the amount of equity in the subsequent reporting period compared to the previous one, it is not necessary to recalculate the amount of interest taken into account when calculating income tax (paragraph 1, clause 4, article 269 of the Tax Code).

Calculate the capitalization ratio based on the amount of outstanding controlled debt for all debt obligations, and not separately for each creditor. This follows from paragraph 3 of article 269 of the Tax Code, letter of the Ministry of Finance dated 10.08.2016 No 03-03-07 / 46763.

The specified procedure for determining the values of the capitalization ratio and the maximum amount of interest on controlled debt applies to organizations that use both the accrual method and the cash method (clause 4 of article 269 of the Tax Code). That is, with the cash method, it is also necessary to calculate the indicators for the last day of each reporting (tax) period, regardless of the period in which the interest was paid (accounted for as expenses).

Compare the maximum amount of interest obtained by calculation with the amount of interest actually accrued (paid) on a loan (credit).

If the actually accrued (paid) interest is less than the limit value, take it into account in tax expenses in full. If more, only the marginal value can be taken into account when calculating income tax. Calculate the maximum interest on the reporting date. This is the last day of each reporting (tax) period (clauses 3 and 4 of article 269 of the Tax Code).

The remaining amount (the positive difference between the amount of accrued (paid) interest and the limit value) is considered dividends for tax accounting purposes. From this amount, the organization must withhold income tax or personal income tax (clause 6 of article 269 of the Tax Code).

If the value of the organization's equity capital is negative or equal to zero, then it is impossible to determine the capitalization ratio. In this case, do not include interest on controlled debt in expenses (marginal interest is zero). In other words, the entire amount of interest will be recognized as dividends. Abroad, the recognition of interest (part of interest) as dividends in such cases is called the “rule of thin capitalization”.

Tax the interest equivalent to dividends that you pay on controlled debt to a foreign organization, taking into account the norms of an international treaty (clause 1, article 7 of the Tax Code). At the same time, apply the rules of international agreements that are provided specifically for dividends, and not for interest (letters of the Ministry of Finance dated 12/27/2017 No 03-03-06/1/87340, dated 06/17/2013 No 03-03-06/1/22382, p 14 of the review approved by the Presidium of the Supreme Court on February 16, 2017). Document your eligibility for benefits. If such interest was paid to a foreign company before the reporting date, transfer the tax withheld to the budget on the reporting date (Letter of the Ministry of Finance dated 24.05.2017 No 03-03-РЗ/31710).

This follows from paragraph 6 of Article 269, paragraph 3 of Article 284 of the Tax Code. Similar clarifications are contained in the letters of the Ministry of Finance of July 16, 2010 No 03-03-06 / 1/465, the Federal Tax Service of April 10, 2012 No ED-4-3 / 6008, the Federal Tax Service for Moscow of April 18, 2006 No 20-12 / 31077 . The courts also point out that in case of insufficient capitalization, it is impossible to take into account “excess interest” when calculating income tax and they are recognized as dividends (see, for example, decisions of the Presidium of the Supreme Arbitration Court of November 15, 2011 No 8654/11, the Arbitration Court of the Moscow District of January 26, 2011). 2015 No Ф05-16095/2014).

One of the characteristics of business is the cyclical nature of development. Whatever the enterprise, it sooner or later enters a phase of crisis. It is during this period that the management of companies includes a maximum of tools that can take the company to a new level. Among the effective mechanisms used by business representatives are borrowed funds from foreign companies. Appeal to foreign partners is often associated with the low activity of the banking sector, which often has a personal orientation of the public sector.

What is controlled debt?

The definition of controlled debt refers to the debt that arises from a Russian organization in relation to a foreign company. The use of funds and their repayment are characterized by some specifics of accounting. Controlled debt in respect of loans from foreign entities is subject to Russian law. The main guiding document for reporting on foreign debts is the Tax Code of the Russian Federation. debt subject to special control must meet the following conditions:

The emergence of a controlled obligation is inextricably linked with the processes of involving foreign investors in the circle of participants in the company that lends money. Simply put, the owner of the capital becomes the founder of the company. Thus, the lender gets control over the current processes, gets the right to participate in the life of the company. the Russian legislator establishes a minimum threshold for the entry of a foreign capitalist to control the debt issued by him. The share in the authorized capital should not be less than 20 percent.

In practice, controlled debt credit relationships arise between Russian companies, one of which is controlled by an affiliate from abroad. The foreign firm essentially acts as a guarantor.

To classify a legal entity as a dependent organization occurs in accordance with the requirements.
The debts that are considered outstanding include loans that exceed the total capitalization of the borrowers' companies by more than 3 times. If the organizations that attract financing are financial institutions (leasing companies or banking institutions), the debt-to-equity ratio should be at least 12.5 times.

It is generally accepted that attracting foreign investment is one of the ways to aggressively optimize taxation. That is why tax inspectorates especially carefully check the statements of those companies that have foreign assets in the capital structure. From the day when the debt of enterprises becomes controllable, interest is already accrued for the use of attracted funds. Usually, payments to foreign investors are assigned in the form of dividends. According to the current legislation, this method of payment to the founders is recognized as legal. It is not difficult to issue such a withdrawal of funds - the company does not need to show reporting on such expenses in the income tax return. For them, a special form KND 11510056 is provided.

Tax Code of the Russian Federation

A separate article of the Tax Code, number 269, is devoted to controlled debt to foreign companies. In order to limit the burden on business, the Tax Code of the Russian Federation provides for a system of restrictions that are imposed on the amount of interest on servicing controlled debt:

If the obligations are drawn up in the Russian currency - rubles and are recognized in accordance with the rules as controlled, then the rate on such loans can be set in the range from 75 to 125 percent. Limit values change annually. If the debt that has arisen is not the result of attracting foreign capital, a percentage of the refinancing rate should be applied.
For debts that are issued in the currency of the state of the lender, for example, the euro, the value of EURIBOR (offer rate for European banks), increased by 4 points, is applied. The maximum value of the interest rate can reach EURIBOR, increased by seven points.
The Russian legislator has provided restrictions for transactions that are made in pounds sterling. Similar to the euro, a 4- to 7-pip LIBOR overshoot range applies.
For controlled liabilities issued by Russian companies in yen and Swiss francs, the range of LIBOR rates is applied, which are exceeded by 2 and 5 points, respectively.

Article 269 of the Tax Code provides a precise definition of controlled debt. This is primarily the balance of an unpaid loan from an organization founded by a foreign firm or citizen. An entity that maintains records of such debts is allowed to charge interest on controlled debt at the end of the reporting period as an expense. Typically, this is the last date of the month. The financial burden is calculated by dividing the amount of accrued interest by a pre-calculated capitalization ratio. The last parameter, in turn, is calculated as the ratio between the total amount of the remaining loan and the amount of equity capital (authorized).

Loan commitments

As noted above, a certain tax regime can often be used to optimize the tax burden. Other ministries and departments have also joined the tax legislation on this issue. Thus, the Ministry of Finance of the Russian Federation, in its letter of 2013 No. 23476, cites factors that are clarifying in determining the explicit relationship between the borrower and the lender. So, when determining controlled debt, the following points should be checked (as well as organizations should monitor their implementation):

In a company that attracts financing from foreign sources, the participation of the capitalist must be confirmed by the ownership of a certain block of shares.
When classifying debt as controlled, the concept of cross-ownership is often used. Strengthening partnerships is often accompanied by the mutual involvement of founders from both sides in the process of enterprise capitalization. For example, firm H, which lends some money to company A, acquires 25 percent of the shares of company A. In turn, company A acquires a 50 percent stake in company H. It's simple.
Article 105.2 of the same Tax Code provides the concept of ring-type ownership. With this method of interaction between partners, indirect participation in the capital is observed. The provability of such a fact is confirmed by the construction of a chain of beneficiaries.

Continuing the issue of controlled debt, the Ministry of Finance refers to the rather conservative, and at the same time, has not lost its relevance in modern realities, the Law of the RSFRD on competition, monopoly and other activities carried out in commodity markets. Even then, the regulatory document cited those who are directly or indirectly involved in business management in order to make a profit.

Controlled debt to a foreign organization: if the ratio changes

In general, such a process is considered quite natural, since the financial directors of companies cannot but offer to reduce the burden on the enterprise through the partial repayment of large controlled debts. For this reason, the ratio between equity capital and previously attracted loan may change during the year. A number of Russian companies turned to the Ministry of Finance for clarification. The answer was not long in coming. The content is as follows:

If in the reporting period there is a change in the ratio between equity and borrowed capital, the organization is not required to recalculate previously incurred expenses.
The company's cost of paying interest on controlled debt should be determined in discrete or discontinuous ways.
To carry out calculations on the limit amounts, it is necessary to use the calculation algorithm applied on the end date of each month. In order to recalculate already committed expenses, you will have to generate reports for each month. Cumulative totals do not need to be generated.

For cases when there is a change in the share of participation of a foreign company in the fate of the borrower, an agreed procedure for accounting for debt interest is provided. So, if until a certain moment the size of the capital investment of a foreign representative exceeded the own fund of a Russian company by 3 or 12.5 times, respectively, the recalculation is carried out in a similar way. The situation arises quite often, since a share in the authorized capital can be sold, which is tantamount to paying off the debt. Features of the application of the preferential regime are as follows:

If, before the change, the share of foreign capital exceeded 20 percent, the rules described in paragraph two of Article 269 of the Tax Code of the Russian Federation should be applied.
There are situations when foreign investors completely refuse to establish a Russian company. In this case, the size of the share reaches zero, which entails the termination of the procedure for calculating interest on the use of a controlled loan. The legislator sends the accountant to the rules described in paragraph one of Article 269 of the Tax Code of the Russian Federation.
For cases when at the end of the tax period (year), previously accrued interest on controlled debt has already been repaid, there is no need for recalculation.

Application of special rules

Referring to the same article 269 of the Tax Code, it can be noted that the legislator provides for the operation of an enterprise in a special tax regime if it has controlled debt on its balance sheet. So, if the total amount of debt exceeds the authorized capital of the company (and this is not difficult, since most companies are companies with a fixed capital of 10-000 rubles when established), the organization already falls under the preferential regime. True, for banks and leasing companies, which already have high default capital, the condition is difficult to achieve. Only large corporations can afford to participate in schemes involving foreign capital for such organizations.

In practice, it often happens that the debt to a foreign enterprise becomes uncontrollable. Due to the fact that the calculation of interest on loans is carried out after each month, the terms of cooperation between companies on borrowed capital can also change. To resolve the issue, one should refer to Article 272 of the Tax Code. The norm clearly states that the calculation should be based on the accounting policy of the organization, which establishes the frequency for reporting on income tax.

Conclusion of additional agreements in order to avoid double taxation

One of the leading principles for the development of Russian and international legislation on controlled debt taxes is the exclusion from the activities of economic entities of cases where the tax base is calculated simultaneously by several countries. It is possible to prevent such precedents based on the norms of international law. To do this, it is enough to conclude an additional agreement or write down the corresponding clause in the main contract between the companies.

Principle one. If a Russian company makes payments in favor of foreign legal entities, then the income received by the second party must be taken into account on the side of the payer. This action implies precisely fixing the tax base, in connection with which the recipient of dividends paid under the guise of interest on controlled debt will have completely different entries. The rule of reflection in the accounting of both countries should be prescribed in an international treaty. Based on the section of the contract, you can make changes to the accounting policy of the borrower's enterprise.

If interest on controlled debt is accrued in a timely manner, all the conditions of Article 269 of the Tax Code are met and double taxation is excluded by the relevant clause of the agreement between the borrower and the lender, there are all grounds for calculating the maximum discount rate on the loan. The calculation of the rate must be made taking into account the capitalization of the organization, which has controlled debt.

Accounting in the absence of equity

The equity capital of Russian companies using the practice of controlled debt is necessarily used as the main parameter in the calculations. For cases when the difference between financial indicators becomes equal to zero or goes into the red, the following rules should be followed:

The limit for accruing interest, regardless of the currency of the attracted capital, becomes equal to zero.
The amount of all accrued income is equal to the paid dividends.
For the purpose of determining expenses, interest on existing debt is not taken into account.

According to the explanation of the Ministry of Finance, the tendency of the calculated indicators to zero or to go negative makes it impossible to accrue interest on the obligations assumed. In this case, it is quite logical to apply a zero rate for calculating expenses.

Nuances

In its desire to stop crimes of an economic nature, the legislator is constantly working to improve the standards. The practice of distributing financial flows in organizations that use controlled debt as an effective tool shows a clear avoidance of clarifying the tax base. It turns out that the prevailing majority of transactions between enterprises with common beneficiaries came out of the legal field of the tax regime. It was the latest changes in the legislation that made it possible to arm the guardians of financial discipline with a new tool for controlling negligent enterprises. After clarification of the parameters for bringing to the conditions of controlled transactions, a certain part of international economic contracts began to fall out of the preferential taxation regime. That is, some transactions are no longer recognized as controlled.

The second issue, which has been brewing for years, required clarity on the definition of thin capitalization rules. So, starting from 2017, the conditions for issuing loans in a special tax regime became possible only with the direct entry of capital owners into the business of the financed enterprise. This began to mean only one thing - in order to recognize interdependence, a foreign investor must appear in an extract from the unified state register. Thus, the legislator actually recognized that the legal field for recognizing international transactions on loans worthy of tax benefits was imperfect.

The tool was quickly mastered by companies as a tax avoidance tool. The new version of the draft law is based on the inviolable principle of fiscal policy: all doubts and contradictions must be interpreted in favor of those who pay taxes.