“debt Forgiveness does not indicate the conclusion of the contract of donation, if done by the lender in the absence of an intention to give the debtor”, – the document says. From a legal point of view, it is a matter of principle. After all, if the debtor does not have something to return, theoretically it could be considered his income. First, I used to borrow money, but as soon as it became clear that they can not return, as they would automatically become a gift. So, according to the law the citizen to pay their taxes. The Supreme court disagreed with this logic.
Also, the lawyer Vyacheslav guests receive noticed that in some courts as forgiveness debt is qualified with the discounts offered by corporations to citizens. “This entailed the necessity of taxing the discount amounts provided to the Corporation in the sale of goods, works, services to physical persons the tax to incomes of physical persons as material gain, that is, income in-kind individuals, he says. – However, the discount entails the establishment of a new sales prices, and the creditor is a Corporation protects its economic interest in attracting more customers and maintaining a high demand for a product or service”.
the Position of the Plenum of the relations between legal entities he called a breakthrough.
“In relations between legal entities is a breakthrough, – said the lawyer. In bankruptcy procedures reduces the chance for qualified debt forgiveness as a gift, and thus lower the chance to challenge and cancellation of the transaction. From a tax point of view, the position can influence the revision of the “rampant” practice of the tax authorities to consider debt forgiveness as a gift and levy the amount of the “reduction” of debt, i.e. the amount or part of the debt that is forgiven by the creditor to the debtor for tax on profit of organizations as extraordinary income of the debtor.”
In turn, the Advisor of the Federal chamber of advocates Alexander bolomatov called the decision very interesting. “Prepared the resolution included a number of the positions previously expressed by the Supreme court of the Russian Federation, – he stressed. – With regard to the forgiveness of debt, you have to consider that this topic is related to the established prohibition on donation between legal entities, as well as the position of the Tax code of the Russian Federation on income”.
In his opinion, one of the objectives of this project was to clarify the possibility of using forgiveness of debt without any negative consequences. “In practice there is a situation where banks could refuse to reduce the interest on deposits due to the fact that this reduction will have a place of forgiveness of debt and will have consequences of a fiscal nature or the will is invalid because of the ban of donation between legal entities, – said with��ethnic of FPA. In this case, the Supreme court clearly indicated that the decrease of future interest rate on the loan itself a forgiveness of debt is not.”
Chairman of the Board of Association of lawyers of Russia Vladimir Gruzdev emphasized that the issues of fulfillment of obligations are of particular relevance at the present time: many economic difficulties have arisen, and the courts is expected to increase disputes related to the performance of the obligations. “Now that we are slowly returning to my old life, the time of the settlement, he said. On the other hand, the subject can be called eternal, as in the period of economic growth and in times of difficulties will debate on the honouring of obligations”.
As stated in the document, the relationship of creditor and debtor on debt forgiveness considered by the court as a donation only in case, if it is determined the intention of the creditor to release the debtor from the obligation to pay the debt as a gift. A decrease of future interest rate on the loan itself a forgiveness of debt is not.
“Obligation may be terminated by forgiveness of debt in whole or in part, in respect of both primary and additional requirements, – says Vladimir Gruzdev. – The rejection of the claim or part of the claim in a dispute the performance of the obligation itself does not imply forgiveness of the debt and shall not terminate the obligation. In other words, if the creditor withdraws the claim, this does not mean that the debtor is written off debts.”
But if the decision on the forgiveness of debt, this does not mean that the debtor, something received as a gift, and therefore, as explained by the Supreme court, the automatic obligations of a tax nature does not appear. “Otherwise, the tax authorities could theoretically require you to pay taxes, for example, the decommissioned percent – said Vladimir Gruzdev. – Explanations of the Supreme court of Russia is extremely important primarily for the business community”.
