Guarantee agreement between individuals - sample

According to experts, the amount of debt Russians owe to banks currently amounts to about 11 trillion rubles. However, only 20 percent of borrowers can service their current loans.

Among the debtors to banks, there are many who did not take out the loan on their own, but were guarantors. According to unofficial data, the number of such debtors is half. In order not to be liable for the debts of others, it is necessary to really understand the legal framework governing the rights and obligations of guarantors.

Surety operations

Under the transaction, the guarantor may have, in particular, the following operations:

• issuance of surety (security);

• settlements with the debtor for remuneration for surety services provided;

• settlements with the creditor in the event that the debtor has not fulfilled (not properly fulfilled) his obligations to him;

• settlements with the debtor in the event that the guarantor has repaid his obligations to the creditor (including the collection of interest for the use of the guarantor’s funds and (or) compensation for other losses). For more information about this, see How to register and record a claim;

• write-off of the security (or part thereof) as the obligation to the creditor is fulfilled by the debtor or the guarantor himself or write-off for other reasons;

• writing off a bad debt if the guarantor has settled with the creditor, but the debtor has not repaid the resulting debt to the guarantor. For more information about this, see How to formalize and reflect in accounting the write-off of bad receivables.

Situation: from what point should the guarantor count the limitation period for the debtor’s debt in order to recognize it as uncollectible? The debt arose in connection with the fulfillment by the guarantor of the debtor's obligation to the creditor.

The limitation period should be counted from the moment when the guarantor fulfilled his obligations to the creditor for the debtor (clause 3 of Article 200 of the Civil Code of the Russian Federation). It is from this moment that the debtor has a debt to the guarantor (clause 1 of Article 365 of the Civil Code of the Russian Federation). In this case, proceed from the general limitation period of three years (Article 196 of the Civil Code of the Russian Federation).

A similar point of view was expressed, in particular, in the resolution of the Federal Antimonopoly Service of the Far Eastern District dated May 16, 2008 No. F03-A59/08-2/1639.

For more information about writing off bad debts, see How to formalize and reflect in accounting the write-off of bad debts.

Sample surety agreement

A surety agreement is a small document of 1-2 pages, in which the creditor and the guarantor specify the terms of the obligations. It comes into force when the debtor cannot return the money to the creditor without the help of others due to insolvency or other objective reasons. Reluctance and unilateral refusal cannot be considered an objective reason.

It is likely that the debtor himself will cope with the return of funds and the services of a guarantor will not be needed. However, in case the guarantee does come into force, it is necessary to correctly stipulate its terms in the contract. You can download a good example from the link below.

Download: Surety agreement (form)

A guarantee imposes obligations on the guarantor for someone else’s debts and does not bring benefits

Between legal entities

The legislation does not limit the number of participants in a guarantee agreement, so another organization can guarantee for one organization. That is, one legal entity will become a guarantor of the obligations of another.

In what form the guarantor will satisfy the creditor's demands - in cash or in kind - remains his decision. The Civil Code does not establish clear requirements. Although most agreements deal specifically with monetary compensation for debts and losses.

If the guarantor is a legal entity, it will be the legal entity that will be responsible for the responsibilities, and not the general director, founders or actual owner. A change in the company's management does not relieve it of previously assumed obligations. In some cases, new management may try to challenge the actions of their predecessors and refuse obligations, but this will require going to court and presenting grounds for refusal.

Guarantee of an individual for a legal entity

The law does not establish restrictions on the status of a guarantor and gives even individuals the right to take responsibility for other people’s debts. For example, the head of a company can act as a guarantor for it, if, of course, such a transaction is economically feasible and valid (see the first point). For example, if a company’s profit is the main source of income for its owner, it is not advisable to act as a guarantor - he has nowhere to raise funds to repay loans, and will have to risk his personal property.

A guarantee by an individual for a legal entity is formalized by a similar agreement: it is signed by the citizen-guarantor and the creditor.

The guarantee agreement is signed by the guarantor and the creditor, the debtor does not participate in the transaction

Accounting: issuance of guarantees

A guarantee is a way to secure an obligation (Article 1, 329 of the Civil Code of the Russian Federation).

The guarantee issued to the creditor for the debtor is reflected in off-balance sheet account 009 “Securities for obligations and payments issued.” Make the following entry in accounting:

Debit 009 – guarantee issued.

This procedure follows from the Instructions for the chart of accounts.

Record the entry at the time the guarantee agreement comes into force (clause 1 of Article 425, Articles 432 and 433 of the Civil Code of the Russian Federation).

Consider the security in the amount in which the organization must repay the obligation to the creditor if the debtor does not do so (does not do it properly). Determine this amount from the terms of the guarantee agreement. If the surety agreement does not say this, then consider that the security is equal to the full amount of the debtor's debt to the creditor.

Thus, the supporting primary document in this case may be a guarantee agreement.

This procedure follows from paragraph 1 of Article 432 of the Civil Code of the Russian Federation and Article 9 of the Law of December 6, 2011 No. 402-FZ.

A surety agreement can be either gratuitous or paid (Clause 1, Article 424 of the Civil Code of the Russian Federation).

What does a loan guarantee agreement provide for - the subject of the agreement

A surety agreement is a so-called agreement between the parties (guarantor, lender, borrower), according to which each representative of the party undertakes to fulfill obligations. The obligations should be indicated in the section of the document entitled “Subject of the Agreement.”

It is better for the parties to discuss in advance what to include in this section. However, if at the time of conclusion of the agreement the secured obligation did not arise (the main agreement between the lender and the borrower was not concluded), then the parties must indicate this nuance!

Please note that if the lender and the borrower have agreed on several obligations, then the guarantor and the lender must indicate in their agreement which obligation will fall on the shoulders of the guarantor.

For example:

1. A monetary obligation to repay the principal of a debt to a bank.
2. Interest payments on the loan.
3. Payment of fines for late payments.
4. Non-monetary obligation, for example, fulfillment of obligations under a contract.

In addition, the parties must agree to what extent the obligation should be fulfilled:

1. Fully.
2. Partially.

This nuance should be spelled out in the section.

To avoid any questions, you can write in the “Subject of the agreement” section that the guarantor was familiar with the terms of the main agreement concluded between the bank and the borrower.

You can even specify obligations.

This section of the document may contain information about the guarantor’s liability and its occurrence.

There may be two options:

1. Joint and several liability of the guarantor. This may occur if the borrower fails to fulfill its obligations under the main agreement. The bank will immediately contact the guarantor directly.
2. Subsidiary liability of the guarantor. Such responsibility presupposes that the bank first contacts the borrower, and only then, if he does not fulfill the requirements, then to the guarantor.

Collection of debt from a guarantor under a loan agreement - conditions and procedure, restructuring

All these points are stated in this section.

Accounting: guarantor's remuneration

If the debtor pays for the services of a guarantor, then the amount of remuneration must be taken into account as part of the organization’s other income (subparagraph “b”, paragraph 4, paragraph 7 and 16 of PBU 9/99).

To do this, use account 76 “Settlements with various debtors and creditors”, to which open a subaccount “Settlements with the debtor under a surety agreement”. At the same time, make the following entries in accounting:

Debit 76 subaccount “Settlements with the debtor under a surety agreement” Credit 91-1 – remuneration accrued;

Debit 50 (51) Credit 76 subaccount “Settlements with the debtor under a surety agreement” - the amount of remuneration received from the debtor.

This follows from the Instructions for the chart of accounts (accounts 76 and 91).

Make an entry for accrual of remuneration at the moment when the guarantee service is provided (subparagraph “d”, paragraph 12 and paragraph 13 of PBU 9/99). Confirm the fact of provision of surety services with documents, for example, with an act on the provision of services (Part 1 of Article 9 of the Law of December 6, 2011 No. 402-FZ).

If individuals are guarantors

Who do bankers prefer to hire to guarantee loans to legal entities?

• Other people who are capable (according to the banking security department) of having a significant impact on the activities of the borrowing company.
• Managers of the borrower company and founders.

In this case, priority is given to the owners of the borrowing company and family members, especially when they are co-founders or hold leadership positions in the company. The final composition of guarantors for each loan is determined by an authorized banking body, for example, a credit committee or council. The requirements for documents and for them are presented in the same way as for an individual borrower.

Accounting: write-off of collateral

The debtor is obliged to immediately notify the guarantor that he has fulfilled his obligation to the creditor in whole or in part (Article 366 of the Civil Code of the Russian Federation).

Reflect the amounts paid by the debtor to the creditor as a decrease in the issued security as follows:

Loan 009 – the security (part of the security) is written off in the amount of the obligation fulfilled by the debtor to the creditor.

This follows from the Instructions for the chart of accounts.

Do this on the basis of the document with which the debtor notifies the organization of the fulfillment of his obligation (part of it). The form of such notice (notification) is not approved by law. Therefore, it can be drawn up in any form, but with the obligatory indication of the details provided for in Part 2 of Article 9 of the Law of December 6, 2011 No. 402-FZ.

Similarly, reflect the write-off of collateral in connection with the termination of the guarantee for reasons other than fulfillment of obligations. Such reasons for termination of a guarantee may be:

• change in the primary obligation, entailing an increase in liability or other adverse consequences for the guarantor, without his consent;

• transfer to another person of a debt secured by a guarantee, if the guarantor has not given the creditor consent to be responsible for the new debtor (see also entries when transferring a debt);

• refusal of the creditor to accept proper performance proposed by the debtor or guarantor;

• expiration of the guarantee period specified in the contract. If such a period is not established, the guarantee is terminated if the creditor does not bring a claim against the guarantor within a year from the date of the deadline for fulfillment of the obligation secured by the guarantee. When the deadline for fulfillment of the main obligation is not specified and cannot be determined or determined by the moment of demand, the guarantee is terminated if the creditor does not bring a claim against the guarantor within two years from the date of conclusion of the guarantee agreement.

This follows from Article 367 of the Civil Code of the Russian Federation.

An example of reflecting in accounting an operation to provide a guarantee for another organization (debtor). The debtor independently repaid the obligation under the contract, for which a guarantee was issued to secure

On February 18, Alpha LLC (guarantor), Nadezhny JSCB (creditor) and Proizvodstvennaya LLC (debtor) entered into a surety agreement. According to the agreement, Alfa assumes the responsibilities of the guarantor under the loan agreement concluded between the Master and the bank in full. The guarantee agreement comes into force from the moment the “Master” receives the loan.

Loan amount – RUB 30,000,000. The interest rate is 12 percent per annum. The “master” is obliged to repay the loan on August 24. According to the payment schedule, interest on the loan for the past month must be paid on the 5th of the next month.

“Master” received the loan on February 18. On the same day, “Master” transferred the reward for the guarantee to “Alpha”. It amounts to 300,000 rubles. (including VAT – RUB 45,763).

Every month, within the established period, the “Master” transfers the interest under the agreement to the bank and notifies “Alfa” about this. On August 24, “Master” repaid the loan in full (including accrued interest) and notified “Alfa” about this.

The following entries were made in Alpha's accounting.

18th of Febuary:

Debit 009 – RUB 30,000,000. – a guarantee was issued for the “Master”;

Debit 76 subaccount “Settlements with the debtor under a surety agreement” Credit 91-1 – RUB 300,000. – remuneration accrued;

Debit 91-2 Credit 68 subaccount “VAT calculations” – 45,763 rubles. – VAT is charged on the remuneration amount;

Debit 51 Credit 76 subaccount “Settlements with the debtor under a surety agreement” – 300,000 rubles. – the amount of remuneration was received from the debtor.

5th of March:

Debit 009 – 98,630 rub. (RUB 30,000,000 × 12%: 365 days × 10 days) – the issued collateral was increased by the amount of interest for February;

Credit 009 – 98,630 rub. – part of the collateral was written off in the amount of interest paid by the debtor on the loan for February.

5th of April:

Debit 009 – RUB 305,753. (RUB 30,000,000 × 12%: 365 days × 31 days) – the issued collateral was increased by the amount of interest for March;

Loan 009 – RUB 305,753. – part of the collateral was written off in the amount of interest paid by the debtor on the loan for March.

5 May:

Debit 009 – 295,890 rub. (RUB 30,000,000 × 12%: 365 days × 30 days) – the issued collateral was increased by the amount of interest for April;

Loan 009 – 295,890 rub. – part of the collateral was written off in the amount of interest paid by the debtor on the loan for April.

June 6:

Debit 009 – RUB 305,753. (RUB 30,000,000 × 12%: 365 days × 31 days) – the issued collateral was increased by the amount of interest for May;

Loan 009 – RUB 305,753. – part of the collateral was written off in the amount of interest paid by the debtor on the loan for May.

5'th of July:

Debit 009 – 295,890 rub. (RUB 30,000,000 × 12%: 365 days × 30 days) – the issued collateral was increased by the amount of interest for June;

Loan 009 – 295,890 rub. – part of the collateral was written off in the amount of interest paid by the debtor on the loan for June.

5th of August:

Debit 009 – RUB 305,753. (RUB 30,000,000 × 12%: 365 days × 31 days) – the issued collateral was increased by the amount of interest for July;

Loan 009 – RUB 305,753. – part of the collateral was written off in the amount of interest paid by the debtor on the loan for July.

24 August:

Debit 009 – 236,712 rubles. (RUB 30,000,000 × 12%: 365 days × 24 days) – the issued collateral was increased by the amount of interest for August;

Loan 009 – RUB 30,236,712. (RUB 30,000,000 + RUB 236,712) – collateral in the amount of the principal debt on the loan and the amount of interest paid by the debtor for August was written off.

Compilation rules

Article 362 of the Civil Code of the Russian Federation requires that a guarantee agreement be drawn up exclusively in writing, otherwise it will not have legal force. Oral agreements are not taken into account by the court and creditors: they do not have mechanisms to force a third party to pay if it has not previously confirmed its willingness to answer for someone else’s obligations.

Such an agreement is drawn up without sections - the conditions are listed in a single list. In fact, the guarantee agreement is an annex, an additional agreement to the loan agreement. Without the main document, it has no legal force.

A gratuitous agency agreement between legal entities includes the following data:

• details of the main agreement - date of preparation, number, participants (data that will help quickly and accurately identify the document);
• total amount of debt;
• interest rate, the total amount of interest on the loan;
• an indication that the guarantor will pay not only the principal amount of the debt, but also the penalty (if expected) and the creditor's losses (if any);
• the maximum amount limiting the guarantor's obligations;
• the period for notifying the guarantor of the need to fulfill obligations.

Specifying the maximum amount of liability of the guarantor is directly obligated by paragraph 3 of Article 361 of the Civil Code of the Russian Federation.

Along with the obligations of the debtor, the guarantor receives his rights against the creditor. When he fulfills his obligations, the creditor will hand over documents confirming the repayment of the debt and the absence of claims to him, and not to the main debtor.

The parties to the surety agreement are the creditor and the guarantor, and not the debtor and the guarantor. It is with their details and signatures that the agreement is completed. The debtor attracts a guarantor and convinces him to provide guarantees, but does not participate in the signing of this additional agreement. It is the creditor who requires guarantees for the repayment of the debt, which is why he acts as an active party to the transaction.

Sometimes the contract provides for the possibility of unilateral refusal of the guarantor's obligations : in case the borrower's debt increases significantly or it turns out that he deliberately did not fulfill his obligations or worsened his economic situation in order to take advantage of shifting responsibility to the guarantor.

Do not confuse a guarantee with an agreement for the provision of services - these are two different forms of relationship, the essence of the transactions is completely different.

Accounting: the debtor did not fulfill the obligation

If the debtor has not fulfilled his obligations (not fulfilled them completely or not properly) and the creditor has made a demand to fulfill the obligation to the guarantor, do not make any entries in the accounting until the creditor’s claim is recognized. This is due to the fact that:

• The guarantor has the right to object to the creditor's claims for various reasons. For example, due to the invalidity of the guarantee agreement (Article 362 of the Civil Code of the Russian Federation), the illegality of the creditor’s demands (Article 364 of the Civil Code of the Russian Federation), the expiration of the guarantee period (clause 6 of Article 367 of the Civil Code of the Russian Federation), etc.;

• unrecognized debt is not reflected in accounting (Article 5 of the Law of December 6, 2011 No. 402-FZ).

If the guarantor acknowledged and paid the creditor’s claim, reflect in the accounting:

• repayment of debt under recognized creditor claims (clause 1 of Article 367 of the Civil Code of the Russian Federation);

• the emergence of receivables due to the fact that, having paid someone else’s debt, the guarantor receives the right to demand the amount paid from the debtor (clause 1 of Article 365 of the Civil Code of the Russian Federation).

To do this, you can use account 76-2 “Settlements on claims” or open to account 76 subaccounts “Settlements with the creditor under the surety agreement” and “Settlements with the debtor under the surety agreement”.

Make the following wiring:

Debit 76-2 (76 subaccount “Settlements with the creditor under the guarantee agreement”) Credit 50 (51...) - the debtor’s obligations are repaid at the request of the creditor;

Loan 009 – the collateral in the amount of the obligation fulfilled by the guarantor is written off.

Debit 76-2 (76 subaccount “Settlements with the debtor under the surety agreement”) Credit 76-2 (76 subaccount “Settlements with the creditor under the surety agreement”) - the debtor’s debt to return the amount paid to the creditor is taken into account.

This procedure follows from the Instructions for the chart of accounts (accounts 76 and 009).

Important formal legal features

Judicial practice on declaring a transaction invalid A surety agreement can be declared invalid and there is extensive judicial practice on this matter.

A surety agreement is an agreement between three parties: the lender, the guarantor and the borrower. According to this document, the guarantor is responsible for the timely repayment of the debt to the same extent as the borrower.

Civil legislation does not place any special restrictions on the candidacy of a guarantor. It is understood that he simply must have the legal capacity and capacity to sign the contract and, if necessary, fulfill the obligation for the debtor.

Plenum Resolution No. 42 clarifies that the surety agreement must contain an indication of the main obligation. We are talking about clarifying its size, deadlines, etc. In any case, the information must be compiled in such a way that the obligation can be identified.

A leasing agreement was concluded between LLC “1” and LLC “2”, a payment schedule was established, as well as other obligations. LLC "3" and an individual are guarantors for this transaction. Under a guarantee agreement, the guarantor undertakes to be responsible to the creditor of another person for the latter’s fulfillment of his obligation in whole or in part. A surety agreement can also be concluded to secure an obligation that will arise in the future (Article 361 of the Civil Code of the Russian Federation).

Documentation of the guarantee

The basis for the records may be documents with which the creditor notified the guarantor that he must pay the debt (for example, letters, notices, court decisions, etc.). As well as documents confirming the debtor’s obligations to the creditor (for example, primary documents for settlements between the creditor and the debtor, debt reconciliation acts, settlement inventory acts, etc.). The creditor is obliged to transfer them to the guarantor after repayment of the obligation. This follows from paragraph 2 of Article 365 of the Civil Code of the Russian Federation.

In this case, documents, the forms of which have been approved (for example, an act of inventory of payments according to form No. INV-17), must be drawn up according to a unified form. Documents whose form is not approved must be prepared in any form. However, they must contain all the mandatory details provided for in Part 2 of Article 9 of the Law of December 6, 2011 No. 402-FZ.

The procedure for calculating taxes under a guarantee agreement depends on the taxation system that the organization uses.

At the same time, if the guarantee is terminated for a reason other than the fulfillment of an obligation, do not take such an operation into account for tax purposes. This is due to the fact that in this case there is no object of taxation, with the presence of which the legislation connects the emergence of tax obligations (Clause 1, Article 38, Chapter 25, 26.2 and 26.3 of the Tax Code of the Russian Federation).

Subtleties when issuing a guarantee from an individual for a legal entity

If we talk about the relationship, then often the owner or manager, or another close and interested person acts as a guarantor. This is due to the fact that the guarantor has an incentive and the opportunity to organize the work of the entire organization so that it can repay the debt without any problems.

In order to avoid a situation where economic realities change and the debtor’s obligations grow exponentially, it is necessary to include in the surety agreement a clause on the possibility of a unilateral refusal by the guarantor organization to fulfill obligations (in the event of a significant increase in the borrower’s debt).

The guarantee issues have been settled par. 5 Civil Code of the Russian Federation. The legislator does not specify the subjects of legal relations under a guarantee, but does not limit their range. Accordingly, both individuals and legal entities can participate in the agreement. Moreover, the composition can be mixed and involve the following situations:

• the presence of several guarantors;
• relationship between citizen and organization;
• guarantee of a citizen for another citizen;
• guarantee of a legal entity for another legal entity.

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BASIC

Consider the remuneration for the provision of surety services as part of your income (Article 248 of the Tax Code of the Russian Federation).

If an organization calculates income tax using the accrual method, reflect the remuneration in the period in which the services are provided (clause 1 of Article 271 of the Tax Code of the Russian Federation). If the guarantor uses the cash method, recognize income as it is received (clause 2 of Article 273 of the Tax Code of the Russian Federation).

Situation: how to take into account the amount of remuneration received for a guarantee when calculating income tax if it is issued for several reporting (tax) periods? The organization uses the accrual method.

The organization independently determines the procedure for recognizing such income:

• evenly throughout the term of the guarantee;

• at the time of issuance of the guarantee.

When calculating income tax using the accrual method, income is recognized in the reporting (tax) period in which it arises based on the terms of the transaction (Article 271 of the Tax Code of the Russian Federation). Moreover, if income relates to several reporting (tax) periods, the organization independently distributes it (clause 2 of Article 271 of the Tax Code of the Russian Federation).

From the point of view of civil law, the guarantee service is provided in order to guarantee the creditor that the debtor will answer for his obligations. That is, in fact, the guarantee turns out to be a one-time guarantee - by providing such a promise. The fact that the service is provided does not depend on the period for which the guarantee is issued and is associated only with the fact (moment) of concluding the main contract. Because, as a rule, it depends on the presence of a guarantee whether an agreement will actually be reached. This follows from Article 361 of the Civil Code of the Russian Federation. Therefore, when calculating income tax, income in the form of remuneration can be recognized in full at the time the guarantee is issued (clause 1 of Article 271 of the Tax Code of the Russian Federation).

At the same time, from the point of view of tax legislation, payments under contracts relating to several reporting (tax) periods are subject to distribution. And despite the civil law essence of the guarantee, it is issued for a certain period specified in the contract or determined based on the deadline for fulfilling the main obligation (Article 367 of the Civil Code of the Russian Federation). Therefore, it can be considered that income in the form of remuneration relates to the entire period in which this guarantee is valid. Consequently, in order to calculate income tax, they should be evenly distributed over reporting (tax) periods during the specified period (clause 2 of Article 271 of the Tax Code of the Russian Federation).

In this situation, the organization has the right to decide for itself which of the stated positions to follow. Arbitration practice on this issue has not yet developed.

The amount of remuneration is subject to VAT, since the guarantor provides the debtor with a service that is not exempt from this tax (subclause 1, clause 1, article 146 of the Tax Code of the Russian Federation and letter of the Ministry of Finance of Russia dated March 12, 2007 No. 03-07-07/07).

If the guarantor had to pay the creditor for the debtor, do not take into account the costs of paying the principal debt when calculating income tax. In turn, do not consider the amount of debt that the debtor will reimburse the organization as income. This is due to the fact that the repayment by the guarantor of the debtor’s obligation, as well as the latter’s return of the debt for tax purposes, can be considered the issuance and repayment of a loan, which is not taken into account for tax purposes.

This procedure follows from paragraph 12 of Article 270 and subparagraph 10 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation.

In this case, the amount of interest paid for the debtor can be taken into account when calculating income tax on the basis of subparagraph 2 of paragraph 1 of Article 265 of the Tax Code of the Russian Federation.

Similar clarifications are contained in the letter of the Ministry of Finance of Russia dated October 27, 2011 No. 03-03-06/4/124.

Also, the refund amount is not subject to VAT. After all, after transferring the debt, the guarantor actually provides the main debtor with financial services to provide a loan in cash. And according to subparagraph 15 of paragraph 3 of Article 149 of the Tax Code of the Russian Federation, such services are not subject to VAT.

Arbitration practice also confirms the stated conclusions (see, for example, the resolution of the Federal Antimonopoly Service of the Ural District dated April 21, 2008 No. F09-2606/08-S2).

Situation: does the guarantor need to charge VAT on the amount of interest that the debtor must pay him for the fact that the guarantor has settled with the creditor? The organization applies a general taxation system.

No no need.

In this case, the interest due to the guarantor is not related to payment for goods (work, services). But only if there is such a connection, income in the form of interest on a debt obligation is subject to VAT. Therefore, do not include these revenues in calculating the VAT tax base. This follows from the direct interpretation of subparagraph 3 of paragraph 1 of Article 162 of the Tax Code of the Russian Federation. It is also confirmed by arbitration practice (see, for example, decisions of the FAS Moscow District dated November 13, 2008 No. KA-A40/10586-08, Central District dated September 16, 2008 No. A54-3386/2006-C21, North Caucasus district dated September 6, 2005 No. F08-4071/2005).

Situation: can the guarantor take into account the costs of insuring his property pledged as collateral?

Yes maybe. Provided that such expenses can be economically justified.

In this case, the guarantor acts as a pledgor. He can take into account the costs of voluntary insurance of pledged property in the general manner. If, of course, there is justification for such expenses. For example, the interest of the guarantor-mortgagor may lie in remuneration for the provision of surety services and the provision of collateral. But if the guarantor’s remuneration is symbolic (or is absent at all) and there are no other interests, it will not be possible to justify the costs of insuring the pledged property.

Features of the agreement

Suretyship as a form of legal relations is regulated by paragraph 5 of the Civil Code of the Russian Federation, articles 361-367. The purpose of a guarantee is to provide someone else’s loan, credit or other obligation with an additional guarantee. The guarantor promises that if the debtor becomes insolvent, he will return the money for him. This helps the bank or lender gain additional confidence in returning their money in full and on time.

The composition of the guarantee participants can be homogeneous or mixed, that is, a combination of persons in different organizational and legal forms and different statuses:

• individual for an individual;
• an individual for a legal entity;
• an individual for an individual entrepreneur;
• Individual entrepreneur for an individual;
• Individual entrepreneur for a legal entity;
• IP for IP;
• a legal entity for an individual (extremely rare);
• legal entity for individual entrepreneur;
• legal entity for a legal entity.

The guarantee must have meaning and justification. It cannot be formal, because in this case it will bring problems to the parties to the transaction. The agency agreement between legal entities must be:

1. Economically feasible. For example, the owner of several legal entities cannot be a guarantor for them, and also cannot make them guarantors for each other. The fact is that if he begins to have economic difficulties, he can recognize all of them as untenable and refuse obligations. In such conditions, the guarantee loses its meaning.
2. Valid. The guarantor must be aware that he is accepting real obligations, which will have to be met with his own funds without the possibility of compensation in the future. The agreement is not concluded “for show” in order to provide the lender with formal additional guarantees.
3. "Clean." The parties to the agreement must not subsequently enter into a conspiracy, bring each other or themselves to bankruptcy in order to avoid returning the debt to the creditor.

The guarantor does not receive any benefit from the obligations assumed: neither the creditor nor the debtor pays him, there is no remuneration as such. On the contrary, a guarantee for someone else’s obligations is associated with the risk of irreparable monetary expenses.

A guarantee helps you get loans on more favorable terms

simplified tax system

Take the guarantor's remuneration into account in the organization's income at the time of receipt, regardless of what object of taxation the organization applies (clause 1 of Article 346.15 and clause 1 of Article 346.14 of the Tax Code of the Russian Federation).

If the guarantor had to pay the creditor for the debtor, do not take into account the costs of paying the principal debt when calculating the single tax. Do not consider the amount of debt that the debtor returned to the guarantor as income. This is due to the fact that the repayment by the guarantor of the debtor’s obligation, as well as the latter’s return of the debt for tax purposes, can be considered the issuance and repayment of a loan, which is not taken into account for tax purposes.

This procedure follows from paragraph 1 of Article 346.14, paragraphs 1 and 2 of Article 346.16, sub. 1 clause 1.1 art. 346.15 and subparagraph 10 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation. It is also confirmed by arbitration practice (see, for example, the resolution of the Federal Antimonopoly Service of the Ural District dated April 21, 2008 No. F09-2606/08-S2). Despite the fact that the above court decision clarifies the issues of paying taxes under the general taxation system, the conclusions drawn in it can be extended to the simplified tax system (subclause 1, clause 1.1, article 346.15, clause 2, article 346.16 of the Tax Code of the Russian Federation).

Moreover, if an organization pays a single tax on the difference between income and expenses, the amount of interest paid for the debtor can be written off (subclause 9, clause 1, article 346.16, clause 2, article 346.17 of the Tax Code of the Russian Federation). Similar clarifications for income tax payers are contained in the letter of the Ministry of Finance of Russia dated October 27, 2011 No. 03-03-06/4/124.

Responsibility of the parties under the loan agreement

This section of the document should outline the responsibility of the guarantor and the responsibility of the creditor.

For example:

1. Will there be a provision for payment of a penalty if the guarantor does not fulfill the requirements of this agreement?
2. Will penalties be charged for failure to fulfill contractual obligations?
3. Will the creditor be liable if he fails to fulfill his obligations under the contract?
4. How much interest, fines, taxes and penalties will be paid?
5. For what period will monetary restrictions be accrued (for each day of delay, monthly, etc.).

Of course, you can include other information related to the responsibilities of the parties.

UTII

Settlements under the guarantee agreement will not affect the calculation of UTII. The object of taxation with a single tax is imputed income (clause 1 of Article 346.29 of the Tax Code of the Russian Federation).

Services for issuing sureties are not listed in the list of activities for which a single tax must be paid (clause 3 of Article 346.29 of the Tax Code of the Russian Federation). Therefore, consider the income and expenses of the organization related to the guarantee separately according to the rules in force for the general taxation system (clause 7 of Article 346.26 of the Tax Code of the Russian Federation and letter of the Ministry of Finance of Russia dated July 23, 2007 No. 03-11-04/3/285) .

Rules and legal nuances of drawing up a loan guarantee agreement

To correctly draw up a surety agreement, consider the following legal and legal nuances:

1. The document must be in writing. If there is no written agreement, then there is no contract.
2. The document does not need to be notarized.
3. The agreement cannot be concluded unilaterally. All parties must sign the document, read it and agree to the requirements.
4. The agreement must contain the names of the place and city where the transaction was concluded.
5. The document states the date when the document is signed.
6. The document must have a title.
7. The agreement must have the following main sections: “Subject of the agreement”, “Obligations of the parties”, “Conditions for the fulfillment of obligations”, “Duration of the agreement”, “Termination of the guarantee”, “Addresses and details of the parties”.
8. The document does not contain errors, corrections, strikethroughs, or underlines. All this will affect the validity of the contract.

The agreement is usually drawn up in several copies . One option remains for the bank, one option for the guarantor. If necessary, a copy can be prepared for the borrower.