Loan from LLC to the founder: procedure for registration, issuance and return, nuances

2024 Author: Howard Calhoun | [email protected]. Last modified: 2023-12-17 10:16

Issuing a loan to the founder of an LLC from an organization is quite acceptable today. Such a transaction is subject to many provisions of the Civil Code of the Russian Federation, which regulate the procedure for concluding an agreement. Let's take a closer look at this topic.

Basic concepts - why might you need to apply for a loan of this kind?

A loan to the founder from an LLC involves the conclusion of a special agreement, on the basis of which the company transfers funds for a certain period of time to a member of the organization, who is then obliged to return them either with or without interest.

The conclusion of such transactions is regulated by the following regulations:

1. FZ "On LLC" dated February 8, 1998 No. 14.
2. Chapter 42 of the Civil Code of the Russian Federation (paragraph 1).
3. The tax code, which determines the procedure for taxation of funds transferred under the contract.

It should be noted that a loan to the founder can be provided not only to LLC, but also to organizations of other organizational and legal forms, tofor example, PAO, etc. Property can also be transferred, but not any, but only that which is united by common generic characteristics, for example, computers, bricks, etc.

New rules on consensual contract

The deal to provide a loan to the founder from the LLC is considered real, that is, the agreement is concluded from the moment it is received. It is important to note that since 2018, some new rules have been introduced, according to which, in cases where a loan is provided by an organization, the contract is considered consensual, and not real, that is, it is valid immediately from the moment of signing. In this case, even if the money was not transferred, the borrower, if available, has the right to demand that the LLC issue funds.

As a rule, a loan to the founder from an LLC can be issued when the company has the necessary funds and all its participants voted for the allocation of such funds in order to lend money to the founder. However, some use the considered legal mechanism in order to withdraw finances from the LLC, that is, to cash them out.

Form of the contract and the procedure for issuing this document

The lender in the transaction in this case is an organization, and the recipient of the loan is an individual, founder or member of the company. They, in addition, may be a legal entity acting as a member of the LLC. In these cases, it is necessary to conclude a written agreement in accordance with Art. 808 of the Civil Code of the Russian Federation. If the form of the transaction is not observed, there are contradictions regarding its execution, it will be necessary to prove the fact of its conclusion. In this case, it will not be possible to refer totestimony of witnesses by virtue of the requirements of Article. 162 of the Civil Code of the Russian Federation.

Share of the founder - this must be taken into account

Another important feature that is important to pay attention to if an LLC gives a loan to the founder is its share in the organization. If it is more than ½ part, then, by virtue of the current legislation, this participant is recognized as a controlling person. The contract with him is a deal with interest. This type of transactions characterizes the peculiarity expressed in the fact that 14 days before the conclusion of the contract, it is necessary to notify the other participants of the LLC about this. In this case, a simple notification is sufficient, since consent to the transaction from other participants should not be received.

Sample Agreement

An example of an LLC founder's interest-free loan is often searched online. We also provide it in our article to familiarize the reader with this form.

Essential terms of the contract

When making any transaction, the essential conditions are the circumstances that must be agreed upon without fail. In accordance with paragraph 1 of Art. 432 of the Civil Code of the Russian Federation, under the contract, only its subject matter is agreed, the direct issuance of funds from the borrower to the founder. Based on this, in order for these conditions to be agreed, it is necessary:

1. Specify the amount of money to be transferred.
2. Indicate that the finances are subject to return within a certain period.

This agreement can be both gratuitous and compensated. In this case, the condition on the amount of interest is stipulated in the agreement or not stipulated at all. If this condition is not stipulated, then in accordance with paragraph 1 of Art. 809 of the Civil Code of the Russian Federation, interest is determined by the amount of the key rate of the Central Bank of the Russian Federation.

If it is assumed that the loan to the founder of the LLC will be free of charge, then the borrower is not obliged to pay interest on this transaction. This circumstance must be specified in the loan agreement. Otherwise, this loan can be considered paid with all the consequences, for example, in the form of the obligation of the participant to pay interest on the use of funds.

It is very important to take into account the fact that the federal law has made some changes to the procedure for determining the amount of interest in such an agreement. Their total amount, therefore, cannot be more than twice the size of the total loan amount. Otherwise, the court will lower it if, for example, a dispute arises between the parties.

Rules and procedure for the transfer of funds under the agreement

It is possible to issue a loan to the founder of an LLC in different ways, since its participants in such an agreement are the organization and its founder (participant).

Firstly, it is possible to issue a cash loan to the founder, but this will require a cash transaction. In this case, it will be necessary to fill out a cash receipt and expenditure order (form KO-1). Due to the requirements of the law, funds are issued according to cash settlements onlyin the situation if they come to the cash desk from the current account.

The second option is to provide the founder with a loan through a cashless transfer of funds. To do this, it will be necessary to draw up an appropriate payment order, the form of which is determined by certain provisions approved by the Central Bank.

In both situations described above, it is required to indicate the details of the concluded agreement, according to which finances are transferred. In addition, it must be indicated that the funds are refundable. All this is necessary so that in the event of a dispute, the court does not recognize the transaction as one that does not relate to a loan transaction.

Taxes and interest

The amount of tax liabilities of an organization that provides a loan to the founder depends on whether the agreement is compensatory or not. In the case of an interest-bearing loan to the founder from an LLC, the organization receives income regulated by this agreement. Accordingly, the LLC must pay income tax on these incomes (according to the regular taxation system). If an institution is on a simplified taxation system or any of its other forms, then the amount of income must still be paid, since it forms a taxable base.

In cases where the founder of an LLC receives an interest-free loan, this organization does not receive income, therefore it is not obliged to pay any tax payments

The founder of an LLC, which in this case acts as a borrower, with an interest-free nature of lending, mustwill pay 35% of the income received from savings on interest amounts. In addition, such a tax must be paid if the loan is interest-bearing, but the amount of such interest is less than 2/3 of the refinancing rate of the Central Bank. These conclusions follow from the information obtained from the Tax Code of the Russian Federation. In this regard, the founder of an LLC needs to carefully consider how convenient it is for him to negotiate the terms of an interest-free loan of the founder from the LLC.

When debt is forgiven, the borrower receives a certain income, respectively, he will be required to pay income tax in the amount corresponding to the law. In order to avoid paying such a tax, some additional agreements can be concluded, on the basis of which the deadlines will be extended.

Nuances to be specified

When a founder receives a loan from an LLC, a special agreement is drawn up, which must contain the following data:

1. Description and parameters of the loan.
2. The size of it. The main nuance is that it is almost unlimited: some can issue amounts up to 1 million rubles to the founder of an LLC.
3. Term of repayment of the loan by the founder of the LLC. Since the size of the loan is usually quite large, the debt is repaid over several years.
4. Interest calculation procedure. In most cases, the founders try to get an interest-free loan from the organization, but these cases are fraught with the fact that the borrowing organization will end up paying high taxes. Therefore, it is more profitable for a company to pay a purely symbolic percentage for the use ofloan funds.
5. Purposes of the loan. The founder must indicate the purpose for which he receives a loan (for example, to purchase a car, real estate, land, etc.).
6. Repayment order. It is allowed to return funds in a single amount at the end of the loan period or through several payments.

A sample loan from an LLC founder is shown above.

Requirements for the founder

As part of this form of lending, the borrowers are subject to the following requirements:

1. Age. The founder must be at least 18 years of age at the time of loan application.
2. Citizenship. Only a Russian citizen can receive a loan from a Russian LLC.
3. Term of foundation in LLC. The borrower must be a founder in the lending company for at least 5 years.
4. Having a passport. This document is needed to identify the person and verify his data.

The founder of an LLC who receives a loan should not only indicate the purposes for which the loan is needed, but also subsequently report on the use of funds (provide documentation on the purchase of goods). In this case, the type of document provided depends on what exactly the money was taken for.

We hope that this article was useful to readers and answered all their questions.