There are times when a company does not have enough money for some purpose, for example, paying salaries to employees. You can get out of the situation by concluding a loan agreement between the founder and LLC. In the article we will talk about the nuances that should be taken into account.
Opportunity
When opening an LLC, the founder or founders contribute the authorized capital to it. In the future, the cash register is maintained separately. By law, the founder can not freely use the funds of this company. This is done according to accounting statements and with statements. All checks and documentary evidence of the purpose of the money can be checked by tax inspectors. Therefore, they should be maintained.
A loan agreement between the founder and LLC can be concluded either directly or in reverse. The main norms that are guided in this case are paragraphs. 10 p. 1 of Article 251, as well as Art. 247 of the Tax Code. According to their provisions, money is returned without displaying in income. Therefore, the amount is not taxed for the LLC.
Decor
Before signing the corresponding contract, you need to understand further accounting entries. If the loan period is less than one year, then subaccount 66.03 “Short-term loans” is used, and if longer, then subaccount 67.03 “Long-term loans”.
In the loan agreement between the founder and LLC, you must indicate that the loan is interest-free. Otherwise, interest will be calculated on it.
Basic rules for drafting a contract
The law does not provide for a special form of the document, but certain sections must be contained in it.
The term is counted from the moment the money was issued, and not from the moment the contract is concluded. If it is not indicated, then the thirty-first day after the creditor's request for a refund in writing is considered the final date.
A loan agreement between the founder and the LLC is not required to be certified by a notary.
Matching
At this stage, the following points should be agreed:
- On the parties to the contract. Both legal entities and individuals can appear on both sides. Participants are determined on the basis of economic necessity, since interest-free contracts are actually one of the options for preferential financing in order to achieve different goals in the activities of a legal entity.
- About the amount. Restrictions in its relation are not established. However, the relationship between the corresponding amount and the maturity should be considered. The source of return is the working capital of the borrower. The parameter that sets the amount that the borrower returns to the lender can be an indicator of net profit.
- About currency. Money can be transferred both in rubles and in foreign currency. In this case, certain restrictions are set. So, when choosing a foreign currency, settlements are carried out in rubles at the exchange rate on the corresponding date. Therefore, the difference in quotes can do a disservice to the parties to the contract. In addition, settlements in foreign currency can only be carried out if one of the parties is a non-resident. Usually in this case, the same and common currency is selected, which also has resistance to exchange rate fluctuations.
- About the deadline. The contract indicates the deadline when the loan must be repaid. If an interest-free loan between the founder and LLC is attracted for a specific transaction or for a one-time project with an urgent result, then the term is indicated based on the expected income. In Art. 810 of the Civil Code provides an option in which the period of return is not indicated at all. If at the time of conclusion of the contract it is not possible to establish the exact date for the return, it is possible to indicate the expected period in it. If renewal is necessary, an additional agreement is concluded.
- A priori, the contract is considered to be interest-bearing (unless otherwise indicated therein). Then the interest is set by the refinancing rate, which is valid for the registration of the borrower.
- About the appointment. The contract provides for a condition on the purpose. According to Art. 814 of the Civil Code, the borrower must give the opportunity to control the lender for the targeted use of the loan.
- About return. As a rule, the document prescribes its order. The schedule may be on a calendar, including amounts that are returned for each period. This item depends only on the will of the parties. But it is better to provide a uniform return throughout the entire period.
- About the forms of giving and returning. The loan is transferred to the current account. Settlement in cash is possible only when transferring an amount not exceeding 100 thousand rubles. (if it is carried out between a legal entity and an individual). Returns can be carried out from r / s or through the cashier. In the latter case, the calculation is done only with the money that arrived at the cashier's office with r / s.
Sample contract with examples
The following items must be included in the contract:
- Subject indicating parties and contacts.
- Rules and obligations, where it is necessary to register the obligation to return the money at the appointed time.
- Responsibility with a penalty.
- The procedure for termination of the agreement by agreement of the parties or unilaterally.
- The solution of disputes.
- Unforeseen situations (force majeure).
- Other conditions.
- Details of the parties.
In the presented example, the loan agreement between the LLC and the founder is interest-free. It indicates information that funds are transferred without interest.
The following example is a loan agreement between an LLC and an interest founder.
Related moments
When concluding an agreement, the following points should be taken into account:
- When a party is not a resident. In this case, issues must be resolved not only with the currency, but also with some others, for example, the law of which country is used when disagreements arise and so on. The contract is drawn up in two languages. And if the amount exceeds the limit set by the Central Bank, it may be necessary to draw up a foreign exchange transaction passport.
- This type of transaction is considered interdependent. In accordance with Art. 105.14 of the Tax Code, an agreement is considered a controlled transaction if its amount is higher than one billion rubles per year. In this regard, the parties must submit a report to the tax service.
- Surety or pledge - will be or not. Under a loan agreement to the lender may provide for the performance of obligations. The guarantee is issued by a bank or other person on a paid basis. In the case of a guarantee, a surety can be both an individual and a legal entity. Fulfillment of obligations may be secured, among others, by pledge. Often the use of various forms of ensuring the fulfillment of obligations under an agreement between the founder and LLC is not accompanied by economic necessity, since there are other measures of influence on the legal entity.
- If an interest-free loan agreement is concluded for an amount exceeding 600 thousand rubles, then it is controlled by Rosfinmonitoring. In this case, the bank will require the client to provide documents confirming the legality of the transaction. This is stated in paragraphs. 2 and 4 p. 1 art. 6 of the Law "On counteracting the legalization (laundering) of proceeds of crime and the financing of terrorism" No. 115-. However, in practice, banks may require documents when transferring much smaller amounts.
- According to Art. 46 of the Law "On LLC" No. 14-, other founders must approve the relevant transaction concluded in a large amount. A major transaction is an amount exceeding 25% of the book value of LLC assets.
Issue
Money can be issued in any way that is convenient for the borrower. In addition, material values or goods may be transferred as a loan. Then, in the contract between the founders and the director of the LLC, the supply, volume, nominal value are additionally prescribed, an inventory is made, materials and other characteristics are indicated. After the transfer of money or goods (materials), a return is expected.
Since the issue of whether the director, who is the founder, can issue a loan to himself independently, the court can decide in favor of the founders and against them if disputes arise.
Conclusion
A loan between the founder and the LLC may be drawn up either one way or the other, interest or interest free, with or without deadlines. In this case, an agreement must be concluded in which the essential conditions are indicated. All payment documents must be retained in the event of a tax audit.