The founder of the two organizations is the same person. He is also the CEO of both organizations. The place of registration of organizations and the place of residence of the founder is the Russian Federation.
Organizations, except for the simplified tax system, do not apply other special tax regimes. It is planned to conclude loan agreements between organizations, or a loan agreement will be concluded between organization 1 and the founder (borrower), and then with the founder (lender) and organization 2.
Loans are planned to be issued in the amount of 4-5 million rubles.
Based on what rate is recognized in the tax accounting of organizations income (expense) under loan agreements? What is the minimum interest rate on a loan that should be set in the contracts so that organizations do not face tax risks?
What kind tax consequences and risks arise for an individual under loan agreements (including under an interest-free loan agreement)?

Tax risks interest-free loans from organizations are not considered within the scope of the question.

After considering the issue, we came to the following conclusion:
If an interest-bearing loan agreement does not meet the characteristics of a controlled transaction, income (expense) in the form of interest under such an agreement is recognized by organizations applying the simplified tax system based on the actual interest rate, in other words, from the rate provided for by the agreement, without any restrictions. In this case, the rate does not affect the tax obligations of the parties to the loan agreement.
Income in the form of interest on a loan received by an individual (in your situation, the founder of an organization) from Russian organization- the borrower is subject to personal income tax at a rate of 13%. At the same time, the borrowing organization is recognized as a tax agent for personal income tax and is obliged to calculate, withhold from an individual and pay the calculated amount of tax to the budget.
In the case of issuing an interest-free loan, the founder - an individual does not have an obligation to pay personal income tax.
When a founder receives a loan from an organization, he may receive income in the form of material benefits subject to personal income tax at a rate of 35%, in the event that interest on the loan is not provided for by the agreement, or the loan agreement sets a rate below two-thirds of the key rate of the Bank of Russia (current on date of actual receipt of income by the taxpayer).

Rationale for the conclusion:
Under a loan agreement, one party (lender) transfers money or other things defined by generic characteristics to the ownership of the other party (borrower), and the borrower undertakes to return to the lender the same amount of money (loan amount) or an equal amount of other things received by him of the same kind and quality (GK RF).
The rate under the loan agreement can be set by the parties to the loan agreement in any amount (, Civil Code of the Russian Federation).
When granting an interest-free loan, the loan agreement must necessarily provide that the payment for the use of the granted in cash not charged (, Civil Code of the Russian Federation).

Lender and borrower - organizations applying the simplified tax system

Controllability of transactions

Income and expenses in the form of interest on a loan

Individual - lender

Prepared answer:
Legal Consulting Service Expert GARANT
auditor Ovchinnikova Svetlana

Response quality control:
Reviewer of the Legal Consulting Service GARANT
auditor, member of the RAMI Gornostaev Vyacheslav

The material was prepared on the basis of an individual written consultation provided as part of the Legal Consulting service.

25 Feb 2010 09:17

Often the same person is the sole executive body (director) of several firms. Everyone knows that this is not prohibited by law. However, doubts arise when the contract is signed by the same person on both sides. Is this allowed by law? Are there any restrictions on the conclusion of such transactions?

Legal status of the sole executive body ( CEO, president and others) companies with limited liability established by Art. 40 of the LLC Law. Yes, by general rule The general director of an LLC is elected by the general meeting of the company's participants for a period determined by the company's charter, both from among the company's participants and from outside. An agreement (labor) is concluded between the LLC and the general director. On behalf of the company, it is signed by the person who chaired the general meeting of participants at which the director was elected, or specially authorized to do so by decision general meeting participants. The charter of an LLC may vest the authority to elect a director and conclude an agreement with him on the board of directors.

Similarly, the sole executive body of a joint-stock company is elected by the general meeting of shareholders, if the JSC charter does not refer this issue to the competence of the board of directors (Article 69 of the JSC Law). The agreement with the general director on behalf of the JSC is signed by the chairman of the board of directors or a person authorized by the board of directors.

One director in two companies

The ban on the performance of the functions of the sole executive body in several business companies at once is not established by law, however, some restrictions are provided.

In particular, according to paragraph 3 of Art. 69 of the JSC Law, the combination of positions in the management bodies of other organizations by a person exercising the functions of the sole executive body of the company (director, general director) and members of the collegial executive body of the company (board, directorate) is allowed only with the consent of the board of directors (supervisory board) of the company. There is no such provision in the LLC Law. However, in Art. 276 of the Labor Code of the Russian Federation contains a rule common to all organizations: the head of an organization can work part-time for another employer only with the permission of the authorized body of the legal entity, or the owner of the property of the organization, or a person (body) authorized by the owner. Thus, it is not out of place in the charter of the LLC and the employment contract with the director to indicate the need for appropriate coordination with the general meeting of the company's participants or the board of directors. This allows you to make paragraph 4 of Art. 40 of the LLC Law.

So the current director economic society may conclude labor contract and start performing the duties of the head of another company only with the consent of the authorized body of his first employer.

Interested party transactions

The sole executive body of the company acts on behalf of the company without a power of attorney, including when concluding transactions (clause 1, article 53 of the Civil Code of the Russian Federation). Thus, the situation is not ruled out when the contract will be signed on both sides by the same person. What does the law say about this?

From paragraph 1 of Art. 45 of the LLC Law, it follows that a person exercising the functions of the sole executive body of a company is recognized as interested in the company's transaction if it is itself a party to the transaction, acts in the interests of third parties in their relations with the company, or holds a position in the management bodies of a legal entity that is party to the transaction. Therefore, an agreement between companies that have the same director is recognized as an interested party transaction for these companies. To ensure the legitimacy of this transaction, it is necessary to observe special rules formulated in Art. 45 of the LLC Law, namely:

The director of the company must bring to the attention of the general meeting of participants in the company information about the legal entities in which he holds a position in the management bodies (in writing);

A transaction in which there is an interest must be approved by a decision of the general meeting of the company's participants, which is adopted by a majority vote of the total number of votes of the company's participants who are not interested in making such a transaction (the decision on approving the transaction must indicate the person or persons who are parties, beneficiaries in the transaction, price, subject of the transaction and its other essential conditions).

In accordance with paragraph 7 of Art. 45 of the LLC Law, if the company has a board of directors, the decision to approve the transactions in question may be referred by the charter to its competence, except in cases where the transaction price exceeds 2% of the value of the company's property according to financial statements for the last reporting period.

A transaction in which there is an interest and which has not been approved by the company's participants may be declared invalid at the suit of the company or its participant (clause 5, article 45 of the LLC Law).

Similar norms are provided for by the JSC Law (Chapter XI). Features of informing about interest in a transaction and making a decision on its approval in joint stock company differ from the rules applicable to an LLC and are determined by the legal form.

Special case: the director is the only member of the company

The situation subject to special regulation is if the head of the organization is the sole participant (shareholder) of the company.

First of all, according to Art. 273 of the Labor Code of the Russian Federation, the provisions of Ch. 43 of the Labor Code of the Russian Federation, devoted to the peculiarities of labor regulation of the head of the organization. This means that the head is not obliged to seek the consent of the company's management body to work part-time. Moreover, this statement is true not only in a situation where one person is the only member of two organizations.

Thus, a person hired as a director of a business company and not being its sole founder should not ask permission from his employer to create new organization in which it will be the sole member and director. The explanation is simple: if a citizen is both the sole founder and the sole executive body, it is impossible to conclude an employment contract with himself (see Letters of the Ministry of Health and Social Development of Russia dated August 18, 2009 N 22-2-3199, Rostrud dated December 28, 2006 N 2262-6- one). Consequently, an employment contract with another employer is not concluded, the performance of the functions of a director does not correspond to the concept of part-time work (Article 282 of the Labor Code of the Russian Federation), which means that there is no need to seek consent (Letter of Rostrud dated July 28, 2008 N 1731-6-0).

Note that the requirement of paragraph 3 of Art. 69 of the JSC Law on combining the functions of a director in a JSC and positions in the management bodies of other organizations only with the consent of the board of directors of a JSC is still valid.

Thanks to the reservations in paragraph 6 of Art. 45 of the LLC Law and paragraph 2 of Art. 81 of the JSC Law, companies consisting of one participant and a shareholder, respectively, who simultaneously performs the functions of the sole executive body of the company, are not subject to the provisions on interested party transactions. Thus, two societies, individually created and managed by the same citizen, can freely conclude agreements between themselves. However, if one party to the transaction is a similar company, and the other is a company with several participants, the director of the second company must declare his interest in the transaction and obtain the approval of its participants.

Tax risks

The conclusion of transactions by the same citizen on behalf of two organizations is not a reason for recognizing taxpayers as dishonest (Decision Arbitration Court of Moscow dated 02.07.2008 N A40-18480/08-20-35), and the resulting tax benefit - unreasonable (naturally, in the absence of other signs of bad faith).

Having sufficient grounds to believe that the simultaneous management of two organizations by one person is capable of influencing the results of transactions between them, the court may recognize these organizations as interdependent (clause 2, article 20 of the Tax Code of the Russian Federation). And this will give the inspectors a chance to prove the use of prices that do not correspond to market prices, and recalculate taxes based on market prices (clause 1, clause 2, article 40 of the Tax Code of the Russian Federation).

Antitrust requirements

It should be taken into account that economic companies in which the same individual performs the functions of the sole executive body are recognized as a group of persons, which are subject to all prohibitions established by law on actions (inaction) of an economic entity (clause 4 clause 1, clause 2 Article 9 federal law dated July 26, 2006 N 135-FZ "On Protection of Competition").

The current legislation does not limit the number of legal entities that one citizen has the right to establish and which he can manage. The conclusion of transactions at the same time is also completely in the power of this citizen. However, in a situation where a business company has several participants, their rights and interests are protected: they agree to the work of the director of their company in other organizations in combination and can challenge an interested party transaction made without approval. Tax risks consist only in the possible control of prices applied in transactions.

Management in LLC

The Civil Code of the Russian Federation directly provides for both the possibility of establishing an LLC by one founder, and the admissibility of the operation of an LLC, initially established by several persons, later with one participant.

This can happen either as a result of the retirement of the remaining founders from the LLC over time, or in the event of the acquisition by one person of 100% of the shares of the LLC (part 2 of article 88 of the Civil Code of the Russian Federation). If in business practice usually use the term "founder of an LLC", the legislator prefers to use the term "participant of an LLC". From a legal point of view, these terms are almost identical: the founder is the participant who was involved in the creation of the LLC. In what follows, we will ignore this minor difference.

Management in an LLC can be:

1. Three levels including:
   • general meeting of participants (GMS);
   • board of directors (BoD);
   • one or more executive bodies.
2. Two-level, without SD formation. For an LLC with 1 participant, the presence of a SD in the management system does not make practical sense; in this case, a two-level management system is used.

Executive power in an LLC can be organized in 3 ways:

1. sole executive body. In practice, this body/position is most often referred to as the "general director", although there are other names.
2. The sole executive body together with the collegial executive body (usually there are the names "board" or "management").
3. Management company - other entity acting as an executive body.

When matched founder and director of LLC in one person usually the 1st variant of the organization of the executive body is used.

The main governing body of the LLC is the OSU, it makes decisions on critical issues operation of the LLC. The competence of the OSU is determined by art. 33 of the Law "On Limited Liability Companies" dated February 8, 1998 No. 14-FZ (hereinafter - Law No. 14-FZ). A number of issues relate to the exclusive competence of the GMS, i.e. their resolution cannot be transferred to another body of the LLC by the charter of the company. If there is only one participant in the LLC, then he makes decisions on behalf of the GMS alone. Such decisions must be made in writing. In this case, a number of provisions defined by Law No. 14-FZ in relation to the OSU do not apply (Article 39 of Law No. 14-FZ).

Can a founder be a director of an LLC?

A direct and positive answer to this question is contained in Part 2 of Art. 88 Civil Code. Note that when the director and founder are in one person, the management system in an LLC does not become one-level. Although all decisions at any level of management in such an LLC are made by the same person, from a legal point of view, this is a two-level management system. The issue of differentiation of competence is solved as follows:

• the powers of the participant are determined by the charter of the LLC;
• all other issues are resolved by the general director on a residual basis (in the absence of a board of directors in the management system).

For an LLC with one participant (aka director), the rules of Law No. 14-FZ on interested party transactions and big deals(part 1, paragraph 5, article 45 and part 1, paragraph 9, article 46 of the said law).

In an LLC with a single member, there is no conflict of interest, it is simple in administration and resembles an individual entrepreneur from a managerial point of view. However, legally there are significant differences between an individual entrepreneur and such an LLC.

Founder and CEO in one person: employment contract

One of the main issues that arise in practical life is the issue of an employment contract (TD) with the director. The features of drawing up a TD in this case are discussed in the article "Employment contract with the general director of an LLC (sample)". Chapter 43 is devoted to the issues of the employment contract with the director (as well as members of the board). Labor Code RF (TK). However, in the event of a coincidence of a participant in an LLC and its director, its regulation does not apply (part 2 of article 273 of the Labor Code). At the same time, the director of an LLC is not included in the list of persons to whom the regulation of the Labor Code does not apply and with whom an employment contract is not concluded (part 8 of article 11 of the Labor Code). There is some legal uncertainty.

An additional complication lies in the following: if an LLC concludes a TD with a director, then who signs it on behalf of the employer?

It turns out a kind of legal paradox: TD on behalf of the employee and on behalf of the employer must be signed by the same individual. Note that in this case, an individual is in a different status: in one case, he acts on his own behalf (employee), and in the other, he is a representative of a legal entity. Note that the ban on the conclusion of transactions for a representative in relation to himself as an individual is contained in paragraph 3 of Art. 182 of the Civil Code. But the regulation of the Civil Code on labor Relations does not apply, and there are no such prohibitions in the Labor Code.

Law enforcement practice: TD with a director in an LLC with one participant (aka director)

As a result, different law enforcers expressed different views on this subject and formed different law enforcement practices in their activities. Let's consider the expressed points of view.

1. Rostrud, in a letter dated 03/06/2013 No. 177-6-1, stated that an employment contract with the director was not concluded in this case.
2. On the site onlineinspection.rf ( informational portal Rostrud) on March 10, 2015, an answer was given that TD (and no other contract) is concluded in such a situation, the director’s salary is not accrued, deductions to the Pension Fund and the Social Insurance Fund are not made. But on March 17, 2016, the opposite answer was given to the same question: the TD is concluded, the salary is accrued.
3. The Ministry of Health and Social Development believes that in this case, labor relations arise regardless of whether a TD is concluded or not (Order No. 428n of June 8, 2010). In this case, the director is subject to compulsory social insurance. Note that this department does not currently exist, and its successor, the Ministry of Labor, did not give an official explanation (there are only the above-mentioned consultations of Rostrud, a service subordinate to the Ministry of Labor and Social Protection).
4. The Ministry of Finance believes that in this situation a TD is not concluded (letters No. 03-11-06/2/7790 dated February 19, 2015, No. 03-11-11/52558 dated October 17, 2014). At the same time, the accrued salary cannot be included in the composition of costs that reduce the taxable base. The first of the above letters is applicable to organizations that are on the simplified taxation system (simplified taxation system), the second is for enterprises paying UST (agricultural tax).
5. The judicial authorities are of the opinion that in such a situation, labor relations arise (decree of the FAS ZSO dated November 9, 2010 in case No. A45-6721 / 2010 and a number of other precedents). In an important definition of the Armed Forces of the Russian Federation of February 28, 2014 No. 41-KG13-37, it was concluded that such labor relations are regulated general provisions Labor Code (recall that Chapter 43 of the Labor Code does not regulate them). This point of view is confirmed in paragraph 1 of the decision of the Supreme Arbitration Court of June 2, 2015 No. 21). A number of court decisions have concluded that labor decisions arise from the decision sole member, while registration of TD is not required (determination of the Supreme Arbitration Court dated June 5, 2009 No. VAC-6362/09).

Founder and director are one person: risks

How to be an entrepreneur in such a situation? There is no single answer. But we believe that the risk of adverse consequences is much higher in the absence of TD with the director. Rostrud, which is the control body in the field of labor and is authorized to conduct inspections and impose administrative penalties, as mentioned above, often changes its point of view on this issue.

Sole founder - CEO in 2 companies

The legislation does not contain prohibitions for the sole participant of an LLC to hold the position of director in 2 or more such LLCs. But only one AP in this case is the main one. In the rest of the LLC, the director must draw up a TD on part-time work. All part-time contracts are subject to the rules of Ch. 44 of the Labor Code, including the norm on the length of the working day not exceeding 4 hours (Article 284 of the Labor Code) and the norm on the calculation of wages in proportion to the established working hours (Article 285 of the Labor Code).

IMPORTANT! The rule on the need for a permit to work part-time by a higher management body of an LLC, contained in Art. 276 of the Labor Code, does not apply to the founding director, since it is located in Ch. 43 of the Labor Code, and this chapter does not apply to this situation.

notice, that a large number of simultaneously occupied director positions - this is a reason for verification by the tax inspectorate. Thus, one of the criteria for the possible unreliability of the information included in the Unified State Register of Legal Entities is the combination by an individual holding a director's position of more than 5 such positions in different organizations (letter of the Federal Tax Service dated August 3, 2016 No. GD-4-14 / [email protected]).

An LLC with one participant (aka a director) is a very common and convenient in business life. practical tool entrepreneurship. In order to avoid problems with state regulatory authorities, we recommend (at the moment) to conclude an employment contract with a director in such an LLC. Before creating a trading house with a director, it is necessary to draw up a written decision of the sole participant of the LLC on his appointment.

There are two organizations in which Gen. the director is one person, he is also the founder of one of these firms. Is it possible to conclude a loan agreement between these legal entities, interest? Can there be any negative consequences and reactions from the tax authorities?

In your situation, a loan agreement may be concluded between the two organizations. The current legislation does not contain any restrictions in this regard. At the same time, such a transaction may be recognized as controlled due to the fact that it is concluded between interdependent organizations. Organizations ( individuals) that make controlled transactions are required to notify the tax authorities about them. Notification of a controlled transaction must be submitted by each of its participants. In addition, the correctness of the application of prices for tax purposes is controlled by representatives of the Federal Tax Service of Russia during special audits.

The rationale for this position is given below in the materials of the recommendations of the Glavbukh System.

How to draw up a contract

Loans provided by the organization may be:
- cash or property (in kind);
- interest-bearing or interest-free.

This follows from the provisions of the articles of the Civil Code of the Russian Federation.

The amount of interest on the loan can be specified in the agreement *. If there is no such clause, the loan recipient (borrower) must pay interest to the organization at the refinancing rate in force on the date of repayment (of the entire loan amount or part of it).

The procedure for paying interest can also be provided for in the contract. But if this condition is absent, the borrower must pay interest monthly until the loan is fully repaid.

If the organization provides an interest-free loan, this condition must be expressly stated in the contract. The exception is loans in kind. By default, they are interest-free. But if the organization intends to receive interest from the borrower, their amount and payment procedure should be provided for in the contract.

In 2013, controlled transactions fell under special tax control if their total income exceeded 80 million rubles. For controlled transactions made after December 31, 2013, the minimum value of the total income for these purposes is not established. Therefore, the tax authorities can check the application of prices in such transactions without restrictions.*

This procedure is provided for by Article 105.17 of the Tax Code of the Russian Federation and paragraph 7 of Article 4 of the Law of July 18, 2011 No. 227-FZ.

Special checks are carried out:

• on the basis of notifications of controlled transactions that organizations (individuals) are required to send to tax inspections (only organizations or individuals that sent the notification can be subject to verification);
• on the basis of notices from tax inspectorates conducting on-site (desk) inspections (only organizations or individuals specified in the notice can be the object of inspection);
• when controlled transactions are identified during repeated field tax audits conducted by the Federal Tax Service of Russia.

Notice of controlled transactions

Organizations (individuals) making controlled transactions are required to notify tax inspectorates about them. Notification of a controlled transaction must be submitted by each of its participants.* If it is found that one of the parties to the transaction has not submitted a notification, tax office will send a notice of transactions made by it to the Federal Tax Service of Russia and at the same time can report this to the inspection at the location of the other party to the transaction. If it turns out that the other party to the transaction has not filed a corresponding notification, it may also be subject to tax liability.

This procedure follows from the provisions of paragraphs and article 105.16 of the Tax Code of the Russian Federation and the letter of the Ministry of Finance of Russia dated September 6, 2012 No. 03-01-18 / 7-127.

Help article:Related parties – in tax law, citizens and (or) organizations, relations between which may affect the conditions and (or) results of transactions and (or) economic results of their activities (activities of the organizations they represent)*. The composition of interdependent persons and the grounds under which citizens and organizations are recognized as interdependent are defined in