The procedure for applying accounting provisions in conditions of controllability. Controlled Debt: New Criteria and Rules Accounting for Interest on Capitalization Controlled Debt

The organization has an outstanding debt obligation to VEB, and the guarantor for this obligation is a foreign related person. Will it be recognized this debt controlled - read the article.

Question: On June 30, 2017, the Ministry of Finance issues letter No. 03-03-06/2/41456 stating that it is planned to amend the provision of Article 269 of the Tax Code of the Russian Federation on recognizing the debt of customers of the Development Bank and Foreign Economic Activity (VEB) as uncontrolled debt. Does this mean that, as of today, paragraph 9 of Article 269 of the Tax Code of the Russian Federation does not apply to VEB's debt obligation? if the Company has an outstanding debt obligation to VEB as of the reporting date, and a foreign related party acts as a guarantor for this obligation, will the debt to VEB be recognized as controlled until the changes are made?

Answer: Controlled debt can arise if Russian organization there is an outstanding debt on a debt obligation to: (an organization or an individual); a creditor that is related to such a foreign person; by anyone, if one of the above persons is a guarantor or guarantor.

If the guarantor is an interdependent foreigner, the debt to any creditor is controllable. There are two exceptions: debt to a bank and interest from a Russian organization on outstanding bonds; on a debt to a bank that is provided by an interdependent foreigner or a creditor associated with him.

In this case, the debt is uncontrollable, if at the same time: the bank is not interdependent either with the Russian organization - the debtor, or with the guarantor; the guarantor has never repaid the debt both in the principal part and in the interest part. This rule from paragraph 9 of Article 269 of the Tax Code of the Russian Federation is in force today.

Rationale

controlled debt

controlled debt may arise if a Russian organization has an outstanding debt under a debt obligation to:
- a foreign related person (organization or individual);
- by a creditor that is interdependent with such a foreign person;
- by anyone, if one of the above persons is a guarantor or guarantor.

For each of these cases, there are conditions under which the debt is controllable and under which it is uncontrollable. Determine interdependence according to the rules of subparagraphs 1-3 and paragraph 2 of Article 105.1 of the Tax Code of the Russian Federation.

When Controlled Debt Occurs - General Rules

There are three cases where debt is considered controlled.

1. A foreign creditor is an interdependent person. The debt of a Russian organization to such a creditor is controlled in three cases:

2. The creditor is related to a foreign related person. The debt of a Russian organization to such a creditor is controlled if:
- it is interdependent with a foreign person in one of three cases;
- the creditor is also interdependent with the same foreign person in one in five cases:

3. Guarantor or guarantor - an interdependent foreigner or a creditor associated with him. A debt to any creditor is controllable if the debt obligation provides:
- foreign related person - in one of three cases;
- a person interdependent with such a foreigner - in one of five cases.

When Controlled Debt Doesn't Arise - Exceptions

There are three exceptions to general rules. In these cases, the debt is not controllable.

Exception 1 - on a debt to a creditor - a Russian organization or an individual who is interdependent with a foreign person. Such debt is not controllable if the creditor simultaneously:
- tax resident of Russia;
- has no outstanding debts under comparable obligations to a foreign related person or other foreign creditor related to such foreign person.

The maturities of debts are comparable if the term of the debt to a Russian organization is not longer than the term of the outstanding debt to a foreign related entity or another foreign creditor that is related to such a foreign entity.

Compare debts according to the following rules:
- take into account the total amount of debt obligations and the period for which you received them;
- add up all debts to a foreign related person and (or) other creditors related to him;
- bring debts to single currency at the exchange rate of the Bank of Russia on the date they arose.

If there are outstanding debts on comparable obligations, then the amount of controlled debt does not exceed the amount of these debts.

(hereinafter - Law No. 25-FZ) amended Art. 269 ​​of the Tax Code of the Russian Federation. They will enter into force on January 1, 2017. The provisions relating to the accounting for debt obligations on controlled debt have been adjusted. Recall that if a company has a controlled debt to foreign organization, for the purposes of income taxation, interest on a debt obligation is recognized in a special manner.

Criteria for recognizing debt as controlled expanded

The concept of controlled debt to a foreign organization is contained in paragraph 2 of Art. 269 ​​of the Tax Code of the Russian Federation. To date, it recognizes the outstanding debt of the Russian organization under the debt obligation:

To a foreign entity that directly or indirectly owns more than 20% authorized capital this Russian organization;

To a Russian organization recognized in accordance with the legislation of the Russian Federation as an affiliate of a foreign organization that directly or indirectly owns more than 20% of the authorized capital of this Russian organization;

In relation to which the above-named affiliate and (or) the foreign organization directly mentioned above act as a surety, guarantor or otherwise undertake to ensure the fulfillment of the debt obligation of the Russian organization.

So next year the criteria for recognizing debt as controlled will change. There will also be three of them, but the essence of them is different.

Criterion one

According to sub. 1 p. 2 art. 269 ​​of the Tax Code of the Russian Federation, controlled debt will be recognized as a debt of a Russian organization under a debt obligation to a foreign entity that is an interdependent person of a Russian organization in accordance with sub. 1, 2 or 9 paragraph 2 of Art. 105.1 of the Tax Code of the Russian Federation, if such a foreign person directly or indirectly participates in a Russian organization that has a debt obligation to this foreign person.

According to the said provisions of Art. 105.1 of the Tax Code of the Russian Federation, the following are recognized as interdependent persons:

Organizations in the event that one organization directly and (or) indirectly participates in another organization and the share of such participation is more than 25% (subclause 1, clause 2, article 105.1 of the Tax Code of the Russian Federation);

An individual and an organization, if such individual directly and (or) indirectly participates in such an organization and the share of such participation is more than 25% (subclause 2, clause 2, article 105.1 of the Tax Code of the Russian Federation);

Organizations and (or) individuals in the event that the share of direct participation of each previous person in each subsequent organization is more than 50% (subclause 9, clause 2, article 105.1 of the Tax Code of the Russian Federation).

Criterion two

Debt under sub. 2 p. 2 art. 269 ​​of the Tax Code of the Russian Federation is controlled by a debt obligation to a person recognized in accordance with subpara. 1, 2, 3 or 9 paragraph 2 of Art. 105.1 of the Tax Code of the Russian Federation of a related person of a foreign entity specified in subpara. 1 p. 2 art. 269 ​​of the Tax Code of the Russian Federation.

As you can see, here one more criterion of interdependence is added, established by subparagraph 3 of paragraph 2 of Art. 105.1 of the Tax Code of the Russian Federation, - organizations are recognized as interdependent if the same person directly and (or) indirectly participates in these organizations and the share of such participation in each organization is more than 25%.

From the rule under sub. 2 p. 2 art. 269 ​​of the Tax Code of the Russian Federation, there is an exception. It is contained in paragraph 8 of Art. 269 ​​of the Tax Code of the Russian Federation. According to this rule, outstanding debt is not recognized as controlled debt if the following conditions are simultaneously met:

A debt obligation arose to a Russian organization or individual that is tax residents of the Russian Federation during the entire reporting (tax) period and recognized as interdependent persons of a foreign entity on the basis of sub. 1, 2, 3 or 9 paragraph 2 of Art. 105.1 of the Tax Code of the Russian Federation;

During the reporting (tax) period, a Russian organization or an individual to which a debt obligation has arisen has no outstanding debt on comparable debt obligations to a foreign person specified in subpara. 1 and (or) 2, paragraph 2 of Art. 269 ​​of the Tax Code of the Russian Federation.

Take advantage of the provisions of paragraph 8 of Art. 269 ​​of the Tax Code of the Russian Federation is possible only if the creditor provides written confirmation of the fulfillment of the conditions established by the specified paragraph (clause 10 of article 269 of the Tax Code of the Russian Federation).

In addition, paragraph 8 of Art. 269 ​​of the Tax Code of the Russian Federation is applied taking into account the features provided for in paragraph 11 of Art. 269 ​​of the Tax Code of the Russian Federation. This provision of the Code sets out the rules for determining the comparability of debt obligations. Let's list them.

1. To determine the comparability of debt obligations, the total amount of these obligations and the period for which they were granted are taken into account.

2. If there are several debt obligations under transactions concluded with a foreign person, to determine the total amount of debt obligations, the amounts of such obligations are summed up.

3. If the currency of the debt obligation to a foreign person differs from the currency of the debt obligation with which the comparison is made, debentures are converted to a single currency at the exchange rate of the Central Bank of the Russian Federation on the date of the debt obligation to the creditor.

4. If the period for which a debt obligation of a Russian organization was granted does not exceed the period for which an outstanding debt under a debt obligation to a foreign person arose, such periods are considered comparable.

And the last moment. If the conditions under sub. 2 p. 2 art. 269 ​​of the Tax Code of the Russian Federation, outstanding debt is recognized as controlled debt in the amount not exceeding the amount of such debt on a comparable debt obligation (clause 12 of article 269 of the Tax Code of the Russian Federation).

Criterion three

In accordance with sub. 3 p. 2 art. 269 ​​of the Tax Code of the Russian Federation, the debt will be recognized as controlled under a debt obligation, according to which the above-mentioned foreign person and (or) its related person act as a surety, guarantor or otherwise undertake to ensure the fulfillment of this debt obligation of the taxpayer - a Russian organization. This rule will not work if the following conditions are simultaneously met (clause 9 of article 269 of the Tax Code of the Russian Federation):

A debt obligation arose to an organization that is a bank (including organizations recognized as banks in accordance with the laws of foreign states), not recognized as an interdependent person both with a Russian organization and with persons acting as a guarantor, guarantor or otherwise obligated to fulfill a debt obligation of a taxpayer;

From the moment the debt obligation of the taxpayer arose, there was no termination (fulfillment) of the specified debt obligation, both in terms of the amount of the principal debt and in terms of payment of interest by a foreign person and (or) its related person acting as a guarantor, guarantor or otherwise obligated to ensure the fulfillment of the said debt obligations.

But in order for the debt not to be recognized as controlled, the creditor must provide written confirmation of the fulfillment of the above conditions (subclause 10, article 269 of the Tax Code of the Russian Federation).

Rules for determining interest limits

Starting next year, the procedure for determining the maximum amount of interest on controlled debt, taken into account for income tax purposes, will be established in paragraphs 3-6 of Art. 269 ​​of the Tax Code of the Russian Federation.

When a special order applies

As now, a special procedure for accounting for interest will be applied if the amount of controlled debt of the taxpayer is more than three times (for banks and organizations engaged in leasing activities - more than 12.5 times) exceeds the difference between the amount of assets and the amount obligations of this taxpayer as of the last day of the reporting (tax) period. The only difference is that the old version of this provision referred to organizations engaged exclusively in leasing activities. Now in paragraph 3 of Art. 269 ​​of the Tax Code of the Russian Federation states that an organization engaged in leasing activities is recognized as an organization in which, in the reporting (tax) period, on the last day of which size limit interest to be included in expenses, income from leasing activities taken into account when determining tax base, make up at least 90% of all taxable income for the specified reporting (tax) period.

In addition, the legislators clarified that when determining the amount of controlled debt of a taxpayer, the amounts of controlled debt arising from all the obligations of this taxpayer specified in paragraph 2 of Art. 269 ​​of the Tax Code of the Russian Federation, in the aggregate.

Formulas for calculation

Let's proceed directly to the calculation of the maximum amount of interest that a company can take into account when calculating income tax. The rules will be established in paragraph 4 of Art. 269 ​​of the Tax Code of the Russian Federation, but the calculation formula itself remained the same. As now, the maximum interest rate is determined on the last day of each reporting (tax) period by dividing the amount of interest accrued by the taxpayer in each reporting (tax) period on controlled debt by the capitalization ratio calculated as of the last reporting date of the corresponding reporting (tax) period .

The approach to determining the capitalization ratio remained the same. Only the wording has changed due to amendments made to the concept of controlled debt. Thus, from the next year, the capitalization ratio is calculated by dividing the amount of the corresponding outstanding controlled debt by the amount equity, corresponding to the share of participation of an interdependent foreign person specified in subpara. 1 p. 2 art. 269 ​​of the Tax Code of the Russian Federation, in a Russian organization, and dividing the result by three (for banks and organizations engaged in leasing activities - by 12.5).

Recall that equity is the difference between the amount of assets and the amount of liabilities of the taxpayer. When calculating the amount of equity capital, the amounts of debt obligations in the form of debts on taxes and fees are not taken into account, including the current debt on payment of taxes and fees, the amounts of deferrals, installments and investment tax credit. This rule still applies today.

But there is one innovation in the calculation of the maximum interest rate. Legislators have established that in the event of a change in the capitalization ratio in the subsequent reporting period or as a result tax period compared to previous reporting periods, the maximum amount of interest to be included in expenses on controlled debt for the previous reporting period is not subject to change.

And a few more innovations. Firstly, from next year, the positive difference between accrued interest and marginal interest, as now, is equated to dividends, but taxed either under paragraph 3 of Art. 224 of the Tax Code of the Russian Federation, or according to 3 Art. 284 of the Tax Code of the Russian Federation (currently the difference is taxed under paragraph 3 of Article 284 of the Tax Code of the Russian Federation).

Secondly, outstanding debt under a debt obligation will not be recognized as controlled debt for a Russian organization if the calculation and withholding of the amount of tax on interest income foreign organization, paid on such a debt obligation, are not made tax agent in accordance with sub. 8 p. 2 art. 310 of the Tax Code of the Russian Federation. This is provided for in the new paragraph 7 of Art. 269 ​​of the Tax Code of the Russian Federation.

Thirdly, since 2017, to recognize the organization's outstanding debt for debt obligations not specified in paragraph 2 of Art. 269 ​​of the Tax Code of the Russian Federation, controlled debt can court. This will happen if it is established that the ultimate purpose of payments on such debt obligations are payments to organizations specified in subpara. 1 and 2, paragraph 2 of Art. 269 ​​of the Tax Code of the Russian Federation.

Rules for 2016

Law No. 25-FZ established that from January 1 to December 31, 2016, the outstanding debt specified in paragraph 2 of Art. 269 ​​of the Tax Code of the Russian Federation, is not recognized as a controlled debt if two conditions are met simultaneously.

First: a debt obligation arose to the bank (including foreign bank), not recognized as an interdependent person both with a Russian organization and with persons acting as a guarantor, guarantor or otherwise undertaking to fulfill a debt obligation of a taxpayer.

Second: from the moment the taxpayer's debt obligation arose, there was no termination (fulfillment) of the specified debt obligation, both in terms of the amount of the principal debt and in terms of payment of interest by the foreign organization specified in paragraph 2 of Art. 269 ​​of the Tax Code of the Russian Federation, and (or) an affiliate of this foreign organization, acting as a guarantor, guarantor or otherwise obligated to ensure the fulfillment of this debt obligation.

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 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 conducting 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 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. 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, the occurrence credit relations controllable debt occurs between Russian companies, one of which is controlled by an affiliate from abroad. The foreign firm essentially acts as a guarantor.

• For attribution legal entity to the category of dependent organizations 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 raise funding 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 attraction foreign investment is one way to aggressively optimize taxation. That is why tax inspections 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 payouts foreign investors awarded 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 in 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. Maximum value 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 obligations issued by Russian companies in yen, as well as Swiss francs, the range of LIBOR rates, exceeded by 2 and 5 points, respectively, is applied.

Article 269 Tax Code is given precise definition 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. To tax legislation other ministries and departments have joined in 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. So, firm H, which lends company A a certain amount, receives 25 percent of the shares of company A. In turn, company A acquires a block of 50 percent of the shares of 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. Already then in normative document cited who are directly or indirectly involved in the management of a business for the purpose of making a profit.

Controlled debt to a foreign organization: if the ratio changes

In general, such a process is considered quite natural, since financial directors of companies cannot but offer to reduce the burden on the enterprise by partial repayment 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 up to a certain point the size of the investment of a foreign representative exceeded its own fund Russian company 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, so having high capitals by default, 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 accounting policy organization in which the frequency for reporting on income tax is established.

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. For this it is enough to conclude additional agreement or to prescribe 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 means 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 where the difference between financial performance becomes zero or goes negative, 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. Distribution practice financial flows in organizations that use controlled debt as an effective tool, shows a clear evasion from 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. Exactly last changes in the legislation allowed to arm the guardians financial discipline a new instrument of control of negligent enterprises. After refining the parameters of reduction to the conditions 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 a single state register. Thus, the legislator actually recognized that the legal field for recognizing international transactions on loans as worthy tax breaks, was imperfect.

The tool was quickly mastered by companies as a tax avoidance tool. New edition the bill is based on the inviolable principle fiscal policy: all doubts and contradictions should be interpreted in favor of the one who pays taxes.

Calculation of interest according to special rules in accordance with paragraph 2 of Art. 269 ​​of the Tax Code of the Russian Federation must be carried out if it is carried out and second condition:

the ratio of the outstanding controlled debt to a foreign organization and the organization's own capital is more than 3. For banks and organizations engaged in leasing activities - more than 12.5.

This ratio is called capitalization ratio. It is determined on the last day of each reporting period (quarter).

If the ratio is less than 3 (or 12.5), only the provisions of paragraph 1 of Art. 269 ​​of the Tax Code of the Russian Federation.

Calculation of the ratio of debt obligations to a foreign company and equity on the last day of each reporting (tax) period, in a situation where a loan is granted and repaid within one reporting period, the capitalization ratio is not applied.

Interest is recognized as a deductible expense on the date it is incurred.

In accordance with Article 272 of the Code, the date of expenses incurred by organizations that determine the moment of implementation on accrual is the date of accrual of interest in accordance with the terms of the concluded agreements. Under agreements concluded for a period of more than one reporting (tax) period and not providing for an even distribution of interest (or providing for uneven accrual of interest), the expense is recognized as incurred on a monthly basis. In this case, the expense is determined by the taxpayer independently as a share stipulated conditions interest agreements falling on the relevant month.

In the case of using the method of determining sales by payment, the payment of interest is recognized as the date of implementation of expenses in accordance with Article 273 of the Tax Code of the Russian Federation.

For determining limit value percent, recognized as an expense for tax purposes, the amount of interest accrued (paid using the "cash" method) in a given quarter on controlled debt is divided by the capitalization ratio.

Expenses include interest on controlled debt, calculated in this order, but not more than actually accrued interest.

The rest of the accrued interest (exceeding the limit level) is recognized not as interest, but as dividends, in accordance with which it is taxed at the source of payment (15%, clause 4 of article 269 of the Tax Code). In this case, the source of payment acts as a tax agent.