Can a bank charge interest on interest? The Russian Federation has banned the illegal accrual of interest on interest

Higher Arbitration court The Russian Federation (SAC RF) has prohibited the illegal charging of interest on interest on overdue loans. This point of view is indicated in an extended review of judicial practice devoted to issues of administrative liability for violation of the law on the protection of consumer rights when concluding agreements for the provision of credit services.

Explanation

Interest is allowed to accrue only on the principal amount of the loan, stated the Supreme Arbitration Court of the Russian Federation.
This spring he has already stood up for borrowers. Namely, he prohibited banks from demanding from clients early repayment loans when their financial situation worsens.

The imposition of insurance and fines for refusal to obtain a loan were also illegal. The court also considered the ban a violation early return loan and early repayment fee.
The Supreme Arbitration Court of the Russian Federation recognized the illegality of the practice of including the accrual of interest on interest in a loan agreement: often banks include in the loan agreement a condition that in case of late payment of the loan, the bank has the right to issue the borrower a new loan, which will be used to pay off the debt, and interest is repaid on the new loan on a new loan.

The court here took the side of the borrower, justifying this by the fact that banks do not have the right to force the client to pay interest on already overdue borrowed interest. Interest can only be calculated on the principal amount of the loan, referring to Articles 809 and 819 of the Civil Code,
emphasizes YOU.

If the borrower defaults, he has the right to come to the bank and, on his own initiative, take out a new loan to pay off the resulting debt. However, the bank does not have the right, on its own initiative, to issue a loan for the amount of the principal loan, overdue interest and penalties and, further, charge interest on the increased amount.

Cases of transferring loan payments through a terminal are also listed as a separate line in the court review. So, if the borrower repays the loan through third parties: another bank, payment system, then he is not responsible for any failures that occur. Unless, of course, the bank works with these third parties and the client is warned about this.

The provision of the loan agreement indicating that the borrower opens a current account only with the creditor bank, through which the loan is issued and repaid, does not violate the law on the protection of consumer rights, the Supreme Arbitration Court decided.

When applying for a loan, some borrowers accidentally or intentionally skip the section of the loan agreement, which deals with penalties for late repayment of the debt. Many people think that this will not affect them, and they have no need for extra information. That is why inattentive bank clients are always surprised to find that instead of the obligatory payment, for example, 1000 rubles, they are already demanding 1500. It turns out that the bank charged a penalty for a slight delay in payment. How legal are such actions of the creditor, how is the amount of the penalty calculated, and is there a chance to avoid paying fines? We will try to answer all these questions in this article.

The legality of accruing penalties and fines for late payment on a loan and the procedure for their calculation

Delinquency on a loan is considered to be a deviation from the established loan payment schedule. Even if you are late for only 1 day, financiers will demand that you pay a penalty. According to Art. 330, paragraph 1. According to the Civil Code of the Russian Federation, penalties are defined as fines and penalties:

A fine is a one-time penalty that is applied once, but for each delay. For example, if the fine is 100 rubles, and you have not paid the loan for 3 months, be prepared to pay an additional fine of 300 rubles.

The penalty is calculated based on the period during which you delay payment. If the delay is large, the penalty may exceed the amount of accrued interest.

Please note that a penalty cannot be charged on the unpaid amount of the penalty.

According to Art. 395 of the Civil Code of the Russian Federation, the amount of penalties is calculated based on 1/360 of the refinancing rate - at this moment it is 8.25% per annum - for each day of delay (0.0229%).

Let's consider an example of calculating a penalty based on the amount of penalties established by the Civil Code of the Russian Federation. Suppose you took out a loan in the amount of 300 thousand rubles at 21.5% per annum and for 48 months; your annuity payment is 9,370 rubles per month. You have not made 2 payments and are 40 days overdue. Then the penalty amount will be 107.28 rubles:

9,370 * 30 * 0.0229 / 100 = 64.37 (rub.) – the amount of penalties accrued for the delay of one scheduled payment for 1 month.

(9370 + 9370) * 10 * 0.0229 / 100 = 42.91 (rub.) – the amount of penalties accrued for late payments for 2 scheduled payments for 10 days of the second month.

64.37 + 42.91 = 107.28 (rub.) – the amount of the penalty for 40 days.

It is quite obvious that the bank is not satisfied with such a small penalty. This is why financiers use clause 2 of Art. 332 of the Civil Code of the Russian Federation, which states that the amount of the penalty can be increased by agreement of the parties. In other words, having written in loan agreement If the amount of penalties and fines is greater than 1/360 of the Central Bank refinancing rate, the credit institution can legally charge you a penalty in the amount specified in the agreement.

You can resist too “greedy” banks: according to Art. 333 of the Civil Code of the Russian Federation, if the penalty payable is clearly disproportionate to the consequences of violation of the obligation, the court has the right to reduce the penalty. That is, if the case goes to court, the judge has the right to recognize the accrued amount of the penalty as inflated and refuse to satisfy the bank’s claim to the borrower regarding its repayment. Such cases are known in judicial practice Russia, therefore financiers strive not to abuse their capabilities.

We will tell you in more detail about the average amounts of fines and penalties found in our country.

Amount of penalties in Russian banks

We have already looked at an example with a loan of 300 thousand rubles at 21.5% per annum and a monthly payment of 9,370 rubles. Let’s try to use it to calculate the amount of penalties in 3 Russian banks - Sberbank, Alfa-Bank and VTB 24, provided that interest rate and the annuity payment are the same everywhere, and taking into account the real penalties of banks (as of 2013):

Sberbank sets a fee for violation of obligations in the amount of 0.5% per day of the amount of overdue debt. That is, for 40 days of delay you would pay 2,342.5 rubles.

Alfa-Bank charges 2% per day of the amount of overdue debt. That is, if you missed 2 scheduled payments and with a total period of delay of 40 days, you would pay a penalty in the amount of 9,370 rubles (in fact, another scheduled payment).

VTB 24 charges 0.6% per day of the amount of overdue debt. In total, a delay of 40 days will cost you 2,811 rubles.

Comparing the obtained figures with the one we calculated on a general basis - 107.28 rubles, one can understand why banks ignore the amount of the penalty proposed by the Civil Code of the Russian Federation, determined based on the refinancing rate. Next, we will look at what other options for calculating fines and penalties banks use.

Main types of fines

There are 4 main forms of fines:

A fine in the form of a percentage of the debt amount, accrued for each day of delay. Most often, and we saw this in the example of 3 banks, credit institutions use this option.

Fixed fines in monetary terms. For example, 500 rubles for each delay.

Fixed fines with increasing total. For example, the first delay is 500 rubles, the second is 600, the third and subsequent ones are 800 rubles.

A fine in the form of a percentage of the loan balance, accrued for each day of delay or once a month. It is practically not found in Russia. That is, if the debt balance is 100,000 rubles and the overdue scheduled payment is 3,000 rubles, you may be required to pay a fine in the amount of, for example, 2% of the balance amount (2,000 rubles).

Some banks use combined methods: for example, they charge a penalty of 0.2 - 1% per day of the debt amount and a monthly fixed fine. In addition to penalties, lenders use other methods of pressuring borrowers to collect debt. About them - in more detail.

Actions of the bank in case of late payment on the loan

The Law “On Credit Histories” obliges banks to transmit data on the delinquencies of their borrowers to the bureau credit histories 1-2 times a week (regardless of the number of days overdue). That is, if at the time of transfer of the shared file you have a debt, it will be reported to the BKI. The result of your forgetfulness or inability to plan a budget may be not only an accrued fine, but also the refusal of other banks to work with you in the future due to your bad credit history.

As for collectors, whose work we will describe in detail in the next article, they accept borrowers’ cases no earlier than 2-3 months after the first delay. Of course, the procedure for working with these organizations in each bank is established individually, but still, at first, creditors try to force the client to repay the debt on their own, for this:

send him SMS messages;

they call (calls can start within a few days from the moment the delay occurs, or maybe even after a month);

write letters;

invite the debtor to a meeting.

The natural desire of every debtor is to reduce their obligations to pay fines. How realistic is this in modern conditions, as well as about the so-called “technical delays” we will talk in more detail.

Is it possible to reduce the amount of fines and penalties?

Not long ago, politicians announced their intention to introduce the bill “On consumer credit» changes, establishing a fixed amount of the penalty for late loans - 0.05–0.1% of the debt amount for each day of delay. If this amendment is adopted, banks will have to significantly revise their tariffs (currently the average size penalties in the country range from 0.2 to 1% of the debt amount per day).

You can also try to reduce the amount of the penalty in court, if it comes to that. Typically, debts are repaid in the following order: first, fines and penalties are paid, then interest, and finally the principal debt. Each borrower has the right to explain to the judge the reason for the debt and ask either for the cancellation of penalties or for their reduction. You can also ask to reconsider the procedure for repaying the debt: first close the loan body and interest, and pay off the penalty according to the residual principle.

We can’t help but mention technical delays. For example, when repaying a loan through a terminal, the borrower may not take into account that the money does not immediately appear in the account, but after 1-7 days. The same situation applies to weekends: unless otherwise specified in the contract, then if the planned loan repayment date falls on a weekend, the payment should be made the day before.

There is an unwritten law in economics that even money costs money. It is very consistent with the provisions on legal interest, which were introduced into Russian market use in 2015. The then-era rule dramatically changed the taxation of all organizations using the accrual method. A year later, the wording of the law was changed.

What is meant by “legal interest”, how it affects taxation, and what has changed for businessmen with changes in legislation, we will look into this article.

What is legal interest

Civil Code of the Russian Federation in Art. 317.1 states that interest must be accrued for any use of money within an agreed period. In the text of the law they are not called “legal”; this term has simply come into use among businessmen. We are talking about " interest on monetary obligations».

According to the law, a monetary obligation is considered:

• financial loan;
• money paid late;
• deferment or installment payment;
• advances;
• making an advance payment, etc.

All types of monetary obligations on which interest must be paid are listed in Art. 823 Civil Code of the Russian Federation.

ATTENTION! Legal interest is not a penalty that is assessed for late payments or improper withholding of money. Liability in the form of a fine provides for the payment of interest under clause 1 of Art. 395 of the Civil Code of the Russian Federation for the use of other people's finances. And legal interest is paid regardless of whether the payment was late or not - simply for the very fact of using the counterparty’s money.

Original legal interest

Federal Law No. 42 of March 8, 2015 introduced into legal force Article 317.1 of the Civil Code of the Russian Federation, which contained requirements for the payment of interest on monetary obligations. Commercial structures operating under contracts already concluded before July 1, 2015, when the law came into force, were somewhat confused. According to the law, unless otherwise specifically stated, the specified legal interest is accrued automatically. But what about existing agreements that did not address this issue?

If the parties do not intend to take into account the newly introduced interest, they will have to renegotiate the agreements and make changes to them. If the agreement is not changed and legal interest is accrued, then they must be reflected when calculating income tax (clause 6 of Article 271 of the Tax Code of the Russian Federation) or included in expenses (clause 8 of Article 272 of the Tax Code of the Russian Federation).

Both are quite problematic in scale short terms And large quantity contracts.

In connection with this complexity, the President of the Russian Federation signed Law No. 315-FZ on July 3, 2016 introducing an amendment to this legislative norm.

Modern version of the rule on legal interest

From August 1, 2016, the updated version of Art. 317.1 of the Civil Code of the Russian Federation, which eliminated the misunderstandings described above. The amendment states that legal interest is applied only if it is expressly provided for in the text of the agreement, that is, their accrual “by default” has been abolished, the very thing that introduced confusion and misunderstanding.

IMPORTANT! The “risk zone” includes contracts concluded during the period of “inter-legislation” – from June 1, 2015 to August 1, 2016, because laws do not have retroactive force. Therefore, under such agreements, special attention should be paid to whether legal interest is taken into account as part of income (or expenses). This requires a revision of past documentation and, based on its results, either a recalculation or the conclusion of an additional agreement on the non-accrual of legal interest during this time.

New provisions of Art. 317.1 are expanded in the sense that they no longer apply only to commercial organizations, but also to individuals, as well as non-profit structures.

Taxation on legal interest

The Ministry of Finance of the Russian Federation, in a letter dated August 3, 2016 No. 03-03-06/1/45600, came to the conclusion that if the parties to the agreement exercised the right to establish the payment of legal interest, the creditor would thereby increase the tax base relative to VAT. Naturally, this applies to those finances that were used to pay for goods, works, and services subject to VAT.

This letter took place after the introduction of the amendment, and before that the Ministry of Finance adhered to the position that VAT was not allocated from the amount of legal interest.

Thus, with contracts concluded after August 1, 2016, everything is clear - legal interest is included in VAT. What about agreements during the period of “inter-legislation” and those concluded before July 1, 2015? Indeed, under most of the agreements, the creditor did not intend to receive additional income in the form of legal interest. There are 2 possible justifications for this situation:

1. Potential income that the party did not intend to receive, since legal interest had not yet been introduced at the time the contract was concluded, cannot be considered income, which means it is not included in the VAT base.
2. The nature of legal interest is almost identical to ordinary commercial loans, which means that the former can be extended to include an extremely clear position on VAT relative to the latter. According to letters of the Ministry of Finance of the Russian Federation dated July 4, 2015 No. 03-07-05/32290 and dated May 21, 2015 No. 03-07-05/29303, interest on a commercial loan is not subject to value added tax.

SO: VAT is not required to be charged on contracts that do not contain an agreement on legal interest. They should be recognized at the end of the reporting period, whenever they are actually paid. These amounts are included in the composition (clause 6 of Article 250 of the Tax Code of the Russian Federation).

Calculation of legal interest

As we noted, legal interest is not a monetary sanction, therefore its amount cannot be calculated according to the provisions of Art. 395 of the Civil Code of the Russian Federation, as was done previously for the payment of penalties on monetary obligations. It is necessary to calculate the remuneration for the use of other people’s finances, carried out lawfully and not with violations.

The interest rate at which the calculation is made may be specified in the agreement or not specifically specified. If there is no indication of it in the text of the agreement, then the Central Bank data is used Russian Federation on the refinancing rate, from January 1, 2016, equal to the key rate, which was 9% as of July 2017. But you should take into account exactly when the contract was concluded, because different legal norms were in force at different times:

• until June 1, 2015 – legal interest is not accrued;
• from June 1, 2015 to August 1, 2016 (“interlegislation”) – calculation of the rate for late payments on bank deposits;
• after August 1, 2016 - at the key rate of the Central Bank of the Russian Federation.

As a rule, the calculation is performed for each day the monetary obligation is fulfilled.

FOR EXAMPLE. The company entered into an agreement for the supply of raw materials in the amount of 20,000 rubles, which, according to the terms of the agreement, must be paid within a week. The text of the agreement included a condition on the accrual of legal interest. The rate was not specified. Payment was made on time, on the 7th day.

Legal interest should be charged on the payment amount for 7 days of using the funds. Since there were no special conditions regarding increasing or decreasing the rate, it will be equal to the key rate - 9% per year. The legal percentage will be: 9% / 365 (days per year) - 0.024% per day, and per week - 0.168%. In this case, taking into account the transaction amount, the buyer must pay 33.6 rubles. per week of use in cash, who became strangers from the moment the contract was concluded.

Often, loan agreements contain a condition designed to encourage the borrower to promptly pay interest on the loan. m clause 1 art. 809 Civil Code of the Russian Federation. The two most common options are:

• Interest on the loan not paid on time is automatically added to the principal amount. That is, the debt increases, and subsequent interest is accrued on a larger amount.
• For each day of delay in paying interest on the loan, the borrower pays separately agreed “penalty” interest at a certain rate, which is accrued on the amount of unpaid interest.

Even if such a condition is not stipulated in the loan agreement, the accrual of “interest on interest” is possible due to Art. 395 of the Civil Code of the Russian Federation.

Let's look at how, depending on the wording in the loan agreement, amounts accrued in the event of late payment of interest on the loan are taken into account in “profitable” expenses.

OPTION 1. Interest not paid on time is included in the “body” of the loan

Let’s say an organization took out a loan of 1 million rubles for a year. at 18% per annum with an obligation to repay the principal at the end of the year. According to the agreement, no later than the 30th day of each month, she must pay the lender 1.5% of the loan amount, in our case it is 15,000 rubles. In March, the organization did not pay this amount on time. Thus, for April the amount of interest for using the loan will be 15,225 rubles. ((1 million rubles + 15,000 rubles) x 1.5%).

We learned from our readers that sometimes tax authorities, during audits, remove from non-operating expenses the difference between the increased amount of accrued interest for using the loan and the original amount. In our case it is 225 rubles. ((15,225 rubles - 15,000 rubles). They believe that this difference does not relate to expenses in the form of interest on debt obligations m subp. 2 p. 1 art. 265 Tax Code of the Russian Federation.

However, the Ministry of Finance confirmed to us that this is incorrect.

From authoritative sources

Chief specialist-expert of the Department of Tax and Customs Tariff Policy of the Ministry of Finance of Russia

“ Non-operating expenses include reasonable costs for conducting activities not directly related to production and (or) sales. These include, in particular, expenses in the form of interest on debt obligations of any kind. I believe that in this case, interest accrued on the increased loan amount should be taken into account for profit tax purposes as part of debt obligations, taking into account the restrictions established by paragraph 1 of Art. 269 ​​Tax Code of the Russian Federation.”

It turns out that you can include the interest in question into expenses, which is good news. However, you need to ensure that the total amount of interest accrued on the loan:

• <или>did not deviate by more than 20% in one direction or another from the average interest level for other similar loans, issued in the same quarter e para. 3 p. 1 art. 269 ​​Tax Code of the Russian Federation;
• <или>fit into the established standard, if you do not have other similar loans. Let us remind you that this standard is now compiled T pp. 1, 1.1 art. 269 ​​Tax Code of the Russian Federation:
• for ruble loans received after November 1, 2009 - 1.8 x refinancing rate of the Central Bank of the Russian Federation;
• for loans in foreign currency - 0.8 x refinancing rate of the Central Bank of the Russian Federation.

OPTION 2. If there is a delay in paying interest on the loan, “penalty” interest is paid

Let's take as a basis the numerical data of the example discussed in option 1. But let's change them as follows. According to the terms of the loan agreement, in case of delay in paying interest on the loan, the organization pays “penalty” interest at a rate of 0.2% of the amount of unpaid interest for each day of delay. The organization was 20 days late in paying interest for March.

Thus, in addition to paying this interest, she will have to pay another 600 rubles. “penalty” interest ((RUB 15,000 x 0.2%) x 20 days).

By their legal nature, “penalty” interest is measure of civil liability in relation to an unscrupulous borrower. However, their payment does not relieve the borrower from the obligation to repay the loan amount and pay interest on the use of borrowed funds. And Art. 811 Civil Code of the Russian Federation; Resolution of the Federal Antimonopoly Service of the Moscow Region dated July 7, 2010 No. KG-A40/6656-10.

Based on this, it can be assumed that “penalty” interest can be taken into account for profit tax purposes as expenses in the form of fines, penalties and (or) other sanctions recognized by the debtor for violation of contractual or debt obligations. V subp. 13 clause 1 art. 265 Tax Code of the Russian Federation. Let us remind you that in this case costs do not need to be normalized. b clause 1 art. 269 ​​Tax Code of the Russian Federation, but you can take them into account in full.

The financial department in its explanations never touched upon the issue we are considering. Therefore, we ourselves turned there to find out how correct our reasoning was. This is what they told us.

From authoritative sources

“ Indeed, interest payable if the borrower violates the terms of the debt obligation is a measure of civil liability. Such interest is taken into account for profit tax purposes as expenses in the form of penalties, fines and other sanctions on the basis of subsection. 13 clause 1 art. 265 of the Tax Code of the Russian Federation in full.”

Ministry of Finance of Russia

Thus, before accruing to expenses the amounts paid for late payment of interest on the loan, look at how the condition for their payment is formulated in the loan agreement. It depends on this whether “interest on interest” will be normalized or not.

Interest or a complex interest system is the calculation of interest on an amount for which interest is already being received.

How is interest calculated on interest?

As you know, interest is the payment of a certain amount of money commensurate with the invested or authorized amount of money. For example, the authorized amount is 1000 rubles, this amount is subject to ten percent interest. Ten percent, otherwise 0.1 of the invested 1000 rubles. We multiply these two numbers and get an amount of 100 rubles, this amount will be the interest on the deposit.

This method is called the simple interest method: we simply take a percentage of a number and add it to the base number. If we analyze this theory from a mathematical point of view, then, taking the percentage in shares as “x”, and the statutory one as “y”, the final amount after the percentage calculation “z” will be calculated according to the equation: z=y+y*x Thus, 1000+1000*0.1=1100.

Now let's look at the complex system of calculating interest. Let's say a sum of money was deposited for a certain period with the condition that after this period he would receive 10 percent of the deposit amount, and after some more time: 5% on the amount that had already increased in percentage.

Let’s first analyze this situation simply in words, and then learn how to write it in equations so that you can, if necessary, substitute any numbers and calculate. So, first, after a certain period of time, interest will be accrued on the deposit. Let's assume that the deposit is also 1000 rubles. Then 10 percent of this contribution, as we wrote above, will be 100 rubles. When the investment period expires, the investor will have 1,100 rubles in his account. When some more time has passed, he will be credited with 5 percent on the existing, that is, already increased, amount of money. Thus, it is easy to do the calculation: we add five percent to the existing amount of 1100 rubles, to do this we multiply 1100 by 0.05 and the final result is a deposit amount of 1155 rubles.

How to write this calculation in the form of an equation so that you can substitute any other numbers into it and calculate without problems? To do this, we take our primary equation z=y+y*x and change it. To the profit obtained in the first equation, we must take another percentage (we denote it as x1), after which the equation will take the form: z=(y+y*x)+(y+y*x)*x1.

Remember school years, in mathematics there were always problems involving percentages, which not everyone liked, because you had to delve into them.

We have analyzed the calculation of interest according to a complex and simple scheme, now let's find out where the complex interest system is used.

Where is "percentage on interest" used?

We find the most elementary application of interest capitalization in the banking sector. The bank calculates interest according to a complex scheme. Thus, the deposit will increase annually according to the above equation.

To illustrate the system of calculating compound interest, some mathematicians cite as an example the Gospel parable about a poor widow who put two mites on the temple - the most expensive thing she had. If you put two kopecks in a bank with an interest rate of five percent per annum according to a complex system, after 2012 years the deposit amount would be 4.29 * 10 to the fortieth power of rubles. This, of course, is just calculations, alas, it still eats up, for 2012 its percentage would have been simply huge, taking into account all the events that have happened over these years; There could be wars and so on.

Another complex interest system is used in lending. As a rule, it is applied to people who do not repay overdue loans to the bank. Then the bank sets up a complex system of interest and charges interest on interest, multiplying the amount of debt.

Based on the above, if you understand the functioning of this system, you will almost never have problems with financial calculations and balance sheets. Good luck to you!

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