Question 2. Can a resident legal entity provide a loan to a non-resident individual? If so, then to what account should it be transferred to a ruble account in a bank of the Russian Federation or in foreign currency to an account in a foreign bank? Do I need a currency passport for the transaction? How should this transaction be formalized? ?

1. For the purposes of the Law of December 10, 2003 No. 173-FZ on currency regulation, the following concepts are used:

– residents: individuals who are citizens of the Russian Federation and permanently reside in the Russian Federation on the basis of a residence permit provided for by the legislation of the Russian Federation, foreign citizens and stateless persons;

– non-residents: individuals other than the persons named above.

With non-residents (individuals or legal entities), a Russian organization has the right to conduct currency transactions without restrictions (Article 6 of Law No. 173-FZ of December 10, 2003). That is, you can freely use foreign currency and rubles in settlements with non-residents (clause 9, part 1, article 1 of Law No. 173-FZ of December 10, 2003).

Thus, concluding a loan agreement with a non-resident citizen is possible. In this case, the parties determine the settlement account independently in the agreement. Law of December 10, 2003 No. 173-FZ in this case does not establish any restrictions.

2. A transaction passport should be issued if the loan amount exceeds $50,000 USD (in or converted to the Russian or foreign currency of the loan by the specified amount). Such conditions are contained in paragraphs 5.1, 5.2 and 6.1 of Bank of Russia Instruction No. 138-I dated June 4, 2012.

3. This transaction is drawn up in writing if the parties do not have the ability to carry out electronic document management.

Rationale

Oleg the Good, Head of the Department of Profit Taxation of Organizations of the Department of Tax and Customs Tariff Policy of the Ministry of Finance of Russia

Permitted currency transactions

Permitted foreign exchange transactions include:

transactions with residents provided for in Part 1 of Article 9 of the Law of December 10, 2003 No. 173-FZ;
transactions with non-residents.

A Russian organization has the right to conduct currency transactions with non-residents without restrictions (). That is, you can freely use foreign currency and rubles () in settlements with non-residents.

At the same time, the legislation imposes certain requirements for any permitted currency transactions:

settlements for such transactions must pass through accounts in an authorized bank or accounts in banks located outside the territory of Russia (Parts and Article 14, Parts 4–6 of Article 12, Part 10 of Article 28 of the Law of December 10, 2003 . No. 173-FZ);
the organization is obliged to submit to the authorized bank documents related to the currency transaction (Part 2 of Article 24 of the Law of December 10, 2003 No. 173-FZ);
When making payments to non-residents, it is necessary to repatriate foreign currency earnings ().

As a general rule, an organization is required to carry out all settlements on permitted currency transactions using an account with an authorized bank (Part 2 of Article 14 of Law No. 173-FZ of December 10, 2003).

In addition, when performing certain currency transactions, the organization has the right to use accounts opened in banks abroad. The organization is obliged to notify the tax office at the place of its registration about the opening of such an account. The form and recommended electronic format of the notification were approved by orders of the Federal Tax Service of Russia dated September 21, 2010 No. ММВ-7-6/457 and dated November 14, 2013 No. ММВ-7-14/502. The period within which the organization must submit information to the inspectorate is one month from the date of opening the account. This procedure is established in Part 2 of Article 12 of the Law of December 10, 2003 No. 173-FZ.

Submission of documents to the bank

In addition to the requirement to carry out settlements for currency transactions through accounts in authorized banks or bank accounts abroad, the legislation establishes another obligation for Russian organizations. When making currency transactions, you must submit the following documents to the authorized bank through which settlements with the counterparty are carried out:

transaction passport (clause 6.1 of Bank of Russia Instruction No. 138-I dated June 4, 2012);
a certificate of currency transactions (clause 2.1 of the Bank of Russia Instruction No. 138-I dated June 4, 2012);
a certificate of supporting documents (clause 9.1 of the Bank of Russia Instruction No. 138-I dated June 4, 2012).

The obligation to submit such documents follows from paragraph 1 of part 2 of Article 24,

"__" ______ 20 __

Hereinafter referred to as the “Lender”, represented by ____________, acting on the basis of ______, on the one hand, and ___________, registered__ in the Russian Federation, hereinafter referred to as the “Borrower”, represented by _____________, acting on the basis of ______, on the other hand, referred to as “ The Parties”, individually “Party”, have entered into this Agreement (hereinafter referred to as the Agreement) as follows:

1. THE SUBJECT OF THE AGREEMENT

1.1. Under this Agreement, the Lender transfers ownership to the Borrower of funds in the amount of ____________ (hereinafter referred to as the Loan Amount), and the Borrower undertakes to return the Loan Amount to the Lender and pay interest for the use of the Loan Amount in the amount and terms specified in the Agreement. The loan amount is issued in rubles at the exchange rate of the Central Bank of the Russian Federation on the day the funds are written off from the Lender's account.

2. PROCEDURE FOR PROVIDING AND RETURNING THE LOAN

2.1. The Lender transfers the Loan Amount to the Borrower within ________. The moment of transfer is considered to be the moment of transfer of the Loan Amount to the Borrower’s bank account specified in Section 11 of this Agreement.

2.2. Transfer of the Loan Amount to the Borrower may be carried out in installments. If the Loan Amount is transferred in installments, interest for the use of the Loan Amount will be accrued starting from the date of transfer of the Loan Amount in full.

2.3. Confirmation of the transfer of the Loan Amount to the Borrower's bank account is a copy of the payment order with the bank's execution mark, issued to the Lender.

2.4. Repayment by the Borrower of the Loan Amount, as well as accrued interest for the use of the Loan Amount in accordance with Section 3 of this Agreement, is carried out in full by _______. Repayment of the Loan Amount in installments is not permitted.

2.5. The loan amount is considered repaid from the moment the funds arrive in the Lender's bank account. The loan amount may be repaid by the Borrower ahead of schedule with the consent of the Lender.

3. INTEREST FOR USE OF THE LOAN AMOUNT

3.1. The interest rate under this Agreement is __% per annum of the Loan Amount.

3.2. Interest for using the Loan Amount is paid simultaneously with the repayment of the Loan Amount.

4. RIGHTS AND OBLIGATIONS OF THE PARTIES

4.1. The Lender undertakes to transfer the Loan Amount to the Borrower within the period specified in clause 2.1 of this Agreement.

4.2. The Borrower undertakes to repay the Loan Amount received under this Agreement and interest within the period specified in clause 2.4 of this Agreement.

4.3. The Lender undertakes to accept, before the expiration of the period specified in clause 2.4 of this Agreement, the funds transferred by it to the Borrower.

5. PRIVACY

5.1. The terms of this Agreement and the agreements thereto are confidential and not subject to disclosure.

5.2. The Parties take all necessary measures to ensure that their employees, agents, successors do not inform third parties about the details of this Agreement without the prior consent of the other Party.

6. RESPONSIBILITY OF THE PARTIES

6.1. In case of untimely repayment of the Loan Amount, the Lender has the right to require the Borrower to pay a penalty in the amount of ___% of the debt amount for each day of delay.

6.2. Collection of penalties does not relieve the Borrower from fulfilling obligations in kind.

7. FORCE MAJEURE

7.1. The Parties are exempt from liability for non-fulfillment or improper fulfillment of obligations under the Agreement due to force majeure, that is, extraordinary and unpreventable circumstances under given conditions, which mean prohibited actions of the authorities, civil unrest, epidemics, blockade, embargo, earthquakes, floods, fires or other natural disasters. disasters.

7.2. If the circumstances specified in clause 7.1 of the Agreement occur, the Party is obliged to notify the other Party about them in writing within ____ days. The notice must contain information about the nature of the circumstances and the expected duration of their operation and termination.

7.3. If a Party does not send or untimely sends the notice provided for in clause 7.2 of the Agreement, then it is obliged to compensate the other Party for losses incurred by it.

7.4. In cases of the occurrence of circumstances provided for in clause 7.1 of the Agreement, the period for fulfilling obligations under the Agreement is suspended for the time during which these circumstances apply.

7.5. If the circumstances listed in clause 7.1 of the Agreement continue to apply for more than _______, the Parties shall conduct additional negotiations to identify acceptable alternative ways of fulfilling obligations under the Agreement. In the absence of such, each of the Parties has the right to terminate the Agreement early.

8. DISPUTE RESOLUTION

8.1. The parties will strive to resolve all possible disputes and disagreements that may arise under the Agreement or in connection with it through negotiations.

8.2. Disputes that are not resolved through negotiations are referred to the court in the manner established by the legislation of the Russian Federation. The applicable law under this Agreement is the law of the Russian Federation.

9. PROCEDURE FOR CHANGING AND TERMINATING THE AGREEMENT

9.1. All changes and additions to the Agreement are valid if made in writing and signed by duly authorized representatives of the Parties. The corresponding additional agreements of the Parties are an integral part of the Agreement.

9.2. The Agreement is terminated from the moment the Borrower fully fulfills its obligations to repay the Loan Amount and interest accrued on it.

9.3. The Agreement may be terminated early by agreement of the Parties or in another manner and on the grounds provided for by the legislation of the Russian Federation.

10. FINAL PROVISIONS

10.1. This Agreement comes into force from the moment the Lender transfers the Loan Amount to the Borrower’s account specified in Section 11 of this Agreement, and is valid until the Parties fully and properly fulfill their mutual obligations under the Agreement.

10.2. All notices and communications under the Agreement must be sent by the Parties to each other in writing.

10.3. This Agreement is drawn up in ____ copies, ___ copies, in Russian and __________ languages. Both copies are identical and have the same legal force. Each Party to the Agreement has one copy in Russian and __________ languages.

10.4. Legal relations of the Parties under this Agreement are regulated in accordance with the legislation of the Russian Federation. On all other issues not regulated by the Agreement, the Parties will be guided by the legislation of the Russian Federation.

The document form “Approximate form of a loan agreement between a resident and a non-resident in foreign currency (lender - resident, borrower - non-resident)” belongs to the heading “Loan agreement, loan receipt”. Save the link to the document on social networks or download it to your computer.

Loan agreement between a resident and a non-resident in foreign currency

(lender - resident, borrower - non-resident)

__________________________ "___" ___________ 20____

(place of conclusion of the contract) (date of conclusion of the contract)

__________________________________________________________________,

(full name of organization, country)

(position, full name)

hereinafter referred to as the “Lender”, and ___________________________________

(full name of the organization,

represented by _________________________________________________________________,

(position, full name)

acting on the basis ______________________________________________,

(Charter, Regulations, Power of Attorney)

hereinafter referred to as the "Borrower", collectively referred to as the "Parties", have entered into

this agreement about the following:

1. The Subject of the Agreement

1.1. Under this agreement, the Lender is in the order of __________________

(specify purpose

granting a loan)

within the period before "__"_______20___, transfers the ownership of funds to the Borrower

funds in the amount of ______________________________________________________________

(in numbers, in words amount of funds)

And the Borrower undertakes to return to the Lender such

(cash currency)

the same amount of money plus interest paid on it.

1.2. The loan amount is determined in foreign currency - _____________.

(currency of cash

2. Guarantees of contract performance

2.1. The loan provided under the agreement is secured by ____________

________________________________________________________________________.

(method of securing an obligation)

3. Rights and obligations of the Parties

3.1. Lender by "____" ________________ 20___. undertakes

transfer the loan amount to the Borrower.

3.2. Transfer of the loan amount expressed in foreign currency to

The Borrower's bank account is confirmed by a payment order with a mark

bank about execution.

3.3. The borrower undertakes to return the amount received under this agreement

the amount upon expiration of the period specified in clause 1.1 of the agreement.

3.4. The lender undertakes to accept before the expiration of the period specified in

clause 1.1 of this agreement, the funds transferred by him to the Borrower.

4. Interest under the agreement

4.1. The Borrower pays interest to the Lender for using the loan.

for the loan amount in the amount of _______________________________________________.

(amount and currency of funds)

4.2. Interest on the loan is paid monthly, up to

fulfillment of the obligation to repay the loan amount no later than ____________

dates of each month.

5. Responsibility of the Parties

5.1. In case of violation of the deadline for repayment of the loan amount established

clause 1.1 of the agreement, interest is payable on this amount in the amount

established by paragraph 1 of Article 395 of the Civil Code of the Russian Federation

Federation, from the day it was due to be returned until the day it was

return to the Lender regardless of the payment of interest specified in clause 3.1

agreement.

5.2. For failure to fulfill or improper fulfillment of the terms of this

Agreement The parties bear responsibility established by law.

6. Final provisions of the agreement

6.1. This agreement is considered concluded from the moment of transfer

money to the Borrower.

6.2. The loan amount is considered repaid from the moment of receipt

funds to the Lender's bank account.

6.3. For all provisions not regulated by this agreement,

The parties are guided by current legislation.

6.4. The agreement is drawn up in two copies, each having the same

legal force, one for each party.

6.5. Under this agreement, the current

legislation of the Russian Federation.

7. Details and signatures of the Parties:

Borrower:______________________ Lender:_____________________

______________________________ ________________________________

Borrower Lender

____________ _____________

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Ruble cash loan from an individual - foreign currency non-resident: what you need to remember

Temporary financial difficulties can arise for any company. One of the common ways to overcome them is a cash loan. Anyone can provide it, including a foreign citizen who is, for example, a member of the company. Often, borrowed funds are deposited in cash in rubles directly into the organization’s cash desk, since when issuing a loan:

there is no need to use cash register, since these are not payments for goods (work, services) clause 1 art. 2 of the Law of May 22, 2003 No. 54-FZ; Letter of the Ministry of Finance dated May 28, 2012 No. 03-01-15/4-104. All you need to do is fill out a receipt (form No. KO-1) approved Resolution of the State Statistics Committee dated August 18, 1998 No. 88;
There is no restriction on cash payments and clause 1 of the Central Bank Directive No. 1843-U dated June 20, 2007.

However, those who from time to time receive cash loans, even in rubles, from foreigners and other persons who are not currency residents of the Russian Federation, need to remember some nuances.

Let us recall that are not currency residents of the Russian Federation subp. “a”, “b” clause 6, sub. “a” clause 7, part 1, art. 1 of Law No. 173-FZ of December 10, 2003 (hereinafter referred to as Law No. 173-FZ), in particular:

foreigners and stateless persons temporarily residing or temporarily staying in the Russian Federation;
Russians who permanently reside in another state for at least a year, including those who have an appropriate residence permit, as well as those temporarily staying in a foreign state for a year or more on a work or study visa or a combination of such visas with a total validity of at least 1 year.

However, if such a Russian does not admit that he is a foreign currency non-resident, it is almost impossible to find out about it yourself.

NUANCE 1. Despite the fact that a foreigner (non-resident), while on the territory of the Russian Federation, transfers Russian currency (that is, rubles) in the form of a loan to a Russian organization (resident), this is considered foreign exchange transaction clause 9, part 1, art. 1 of Law No. 173-FZ; Resolution of the Presidium of the Supreme Arbitration Court of July 30, 2012 No. 2079/12. And as a general rule, all payments for foreign exchange transactions must be made by resident organizations in non-cash form - through bank accounts with authorized banks x Part 2 Art. 14 of Law No. 173-FZ.

In some cases, Russian companies can pay foreign citizens in cash in rubles without using bank accounts, for example Part 2 Art. 14 of Law No. 173-FZ:

for retail purchase and sale of goods;
when providing a foreigner with services usually provided to the population - transport, hotels, etc.

It is also not a violation of currency legislation for a Russian company to pay a foreign employee a salary in rubles. Resolution of the Presidium of the Supreme Arbitration Court of March 18, 2008 No. 15693/07.

To be fair, let us say that no liability for non-compliance with the non-cash form of foreign exchange transactions has currently been established. Part 2 Art. 5 of Law No. 173-FZ; Part 1 Art. 15.25 Code of Administrative Offenses of the Russian Federation; Resolution of the Presidium of the Supreme Arbitration Court of February 17, 2009 No. 12089/08. However, claims from local Rosfinnadzor authorities cannot be completely excluded.

NUANCE 2. Amount received from a foreigner under one loan agreement in ruble equivalent should not exceed 50,000 US dollars at the official exchange rate of the Central Bank on the date of conclusion of the contract (now it is about 1.5 million rubles).

Otherwise, you will have to issue a transaction passport and pp. 5.1.5, 5.2 sec. II Central Bank Instructions dated June 4, 2012 No. 138-I. If you don’t complete it, you may run into a fine from the same Rosfinnadzor

From April 14, new requirements for foreign exchange transactions will come into force and there will be more reasons for fines. The changes apply to those who are themselves residents and lend to non-residents.

Now everyone needs to indicate the loan repayment period in the contract. And if the money is not returned on time, the person who lent it may be fined (but not everyone).

From May 14, new fines for officials will appear. The director of a company that works with non-residents can lose up to 30 thousand rubles due to one violation. Already, fines for a company or individual entrepreneur amount to up to 100% of the loan amount. Fines do not apply to ordinary people, but the deadline must still be specified.

What is repatriation?

Repatriation of funds is the return of money from other countries to Russia. Under various legal and illegal pretexts, money from Russian citizens is sometimes transferred abroad. And for some reason they don’t come back. The state could not always control this. For example, banks monitored foreign trade transactions using transaction passports, but there were nuances that made it impossible to fully control loan agreements with non-residents.

Ekaterina Miroshkina

economist

As it was before?

There is a law on currency regulation and control. If a company enters into a foreign trade contract, then it will conduct payments according to the rules established by the law.

For example, all foreign exchange contracts are subject to accounting - previously a transaction passport was issued for them, and from March 1, contracts from 3 million rubles for imports and loans and from 6 million rubles for exports are registered (the amount must be equal or equivalent in any currency). For foreign exchange contracts, it is important to comply with delivery and settlement deadlines. This is monitored by the bank's currency control department.

Previously, control over the timing of the return of money concerned only foreign trade transactions, when the subject of the contract was the supply of goods or the provision of services. Violations of payment deadlines for goods and services could result in fines.

But the bank did not control the terms of loan agreements with non-residents, and they were not fined for violating them.

New requirements for loan agreements with non-residents

From April 14, 2018, a new requirement appeared for the repatriation of funds transferred to non-residents. Here's the main thing:

The loan agreement with a non-resident must specify the repayment period. If there is no deadline, the bank will not accept the service agreement and will not carry out the operation.
The non-resident borrower must repay the money within the prescribed period. Now banks will check this. If the money is not returned on time, the bank will know about it and will have to inform the Central Bank.
The currency of the loan agreement does not matter. You can lend in dollars or rubles.

What will be the fines?

Violations of currency laws are fined under Art. 15.25 Code of Administrative Offences. For now, this article has simply been supplemented with a violation of the terms of repayment of money under the loan agreement. This rule is already working.

If someone lent money to a non-resident, and he did not return the money on time, the lender may be charged the following types of fines:

1/150 of the Central Bank key rate for each day of delay.
From ¾ to one size of the uncredited amount.

There may be one fine, or both may be applied at once. It is not the bank that issues the fines. He has nothing to do with sanctions for clients and receives nothing in his favor. The bank’s responsibility is to monitor how the client complies with the requirements of the law and help him complete the documents correctly.

From May 14, 2018, there will be a fine for officials of companies that violated currency legislation: a minimum of 20 thousand rubles. Until May, they will not be fined for violating the rules for repatriating proceeds and loans. But there are already fines for individual entrepreneurs and companies.

For ordinary citizens, there will be no fines for violating loan repayment terms either now or in May. But they also need to indicate the term in the contract, otherwise the bank will not approve the payment.

When you do not need to return money to an authorized bank

There was a list of such exceptions before, but now it applies to loan agreements and has been expanded. For example, you first lent money to a non-resident, and then he lent it to you and transferred the money to an account in an authorized bank. You have counter-obligations, you offset them with each other - and, although formally your loan has not been repaid, there is no violation.

If the loan agreement is already in force

Debt repayment requirements must be observed only under new loan agreements with non-residents - those that will be concluded from April 14.

For existing contracts, the new requirements do not apply. If you entered into a loan agreement six months ago, did not specify the term and the debt is not returned to you, there will be no fines.