The organization has outstanding promissory note to VEB, and the guarantor for this obligation is a foreign related person. Whether this debt will be recognized as controlled - read the article.

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

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

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

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

Rationale

controlled debt

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

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

When Controlled Debt Occurs - General Rules

There are three cases where debt is considered controlled.

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

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

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

When Controlled Debt Doesn't Arise - Exceptions

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

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

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

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

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

Debt, or debt obligation, in modern Russian practice, as well as throughout the world, is understood as the amount of funds that the subject must pay as debt repayment. In accounting, there are two main types of debt - accounts receivable and accounts payable.

Accounts receivable is the amount of payments due to this organization to be received from its counterparties based on the results of economic interaction with them. For example, accounts receivable will be the amount that the buyer owes to the organization that supplied him with any goods or services. Accounts payable- the amount that the organization itself must pay to its counterparties based on the results of economic relations with them. An example would be a payment that an entity has committed to making for the supply of raw materials to its partner.

Thus, debt is often understood as amounts that have not been paid on invoices within a certain period, which may have happened due to technical reasons, for example, the duration of the payment through the bank. However, in the current legislation, debt obligations also include planned long-term items of expenditure, such as various loans and credits provided to organizations by specialized financial institutions or non-financial enterprises, regardless of the procedure for their registration.

The concept of controlled debt to a foreign organization

When debt is understood as a system of long-term planned payments, the question of what size and quality of these debt obligations can be considered acceptable in the specific financial situation in which the enterprise is located becomes relevant. This question becomes even more significant when the answer to it lies in the plane international relations, in particular, when a Russian organization acts as a borrower, and a foreign organization acts as a lender.

In this situation, it is necessary to determine what is. The degree of controllability of the debt of a Russian organization to a foreign company is quite clearly regulated by the current legislation. The content of the main provisions of paragraph 2 of Article 269 of the Tax Code Russian Federation testifies that prerequisite recognition of such debt is the nature of the relationship between the company that provided the loan and the organization that received it.

Conditions for recognizing debt to a foreign organization

This section of the tax legislation provides for three main situations in which the nature of such relations is recognized as satisfying the criterion of debt controllability.

In particular, the law highlights the following among them:

• a Russian company has received a loan or a loan from a foreign organization that directly or indirectly owns 20% or more of its authorized capital;
• a Russian company has received a loan or a loan from another Russian company, which, in accordance with the criteria set forth in the current legislation, is affiliated with a foreign organization;
• Russian organization received a loan or a loan that a foreign company that is directly or indirectly the owner of 20 or more percent of its authorized capital, or a Russian company that, in accordance with the criteria set forth in the current legislation, is affiliated with a foreign organization, acted as an entity, ensuring the fulfillment of the terms of this loan (for example, by a guarantor, guarantor, etc.).

The main criteria determining the applicability of these conditions to a particular situation

Understanding the full meaning of these conditions requires a definition of the terminology used in them. For the first situation, the disclosure of the meaning of the concepts of direct and indirect ownership of shares in the authorized capital is of decisive importance. In accordance with the current legislation, direct ownership is recognized as the direct participation of a foreign organization in its formation. And indirect ownership is such participation through other organizations.

For example, foreign organization “A” owns 50% of the authorized capital of the Russian organization “B”, which, in turn, is the owner of 30% of the authorized capital of the Russian organization “C”. In this case, organization “A” is recognized as indirectly owning a share in the authorized capital of company “C”, and the size of this share is determined by multiplying the share of company “A” in the authorized capital of company “B” by the share of company “B” in the authorized capital of company “C” . In this case, the indirect share of organization “A” in the authorized capital of enterprise “B” will be 15%.

The second situation requires deciphering the concept of affiliation. The use of this concept in relation to controlled debt in modern Russian practice is interpreted in accordance with the instructions given in the Letter of the Department of Tax and Customs Tariff Policy of the Ministry of Finance of the Russian Federation dated July 11, 2007 No. 03-03-06 / 1/480 “On the procedure for recognizing expenses in the form of interest on controlled debt”. This letter indicates that for the interpretation of the concept of affiliation, one should use the law of the RSFSR of March 22, 1991 No. 948-1 “On Competition and Restriction of Monopolistic Activities in Commodity Markets”. AT this document affiliate means individual or an enterprise that is able in one way or another to influence the conduct of entrepreneurial activities by legal entities.

In addition, article 4 of this law provides an exhaustive list of persons who can be considered as affiliated with this organization - let's call it "D". These include:

The third situation, specified in the law, requires the disclosure of the functions of the guarantor and the guarantor. In accordance with Article 361 of the Civil Code of the Russian Federation, a surety for the obligations of an organization is a person who, under the terms of the contract, assumes responsibility for the obligations of this organization to its creditor.

The concept of a guarantor has a certain similarity with the concept of a guarantor, however, it has some specific features that make it possible to separate these terms. In accordance with Article 368 of the Civil Code of the Russian Federation, a guarantor is an entity that gives an obligation to pay the creditor, referred to in the law as the beneficiary, upon a written request, the entire amount constituting the loan of the principal, that is, the recipient of the guarantee. At the same time, the conditions for making such a claim are prescribed in the contract concluded with the guarantor, and the latter can only be insurance organization or a bank or other lending institution. In other words, a legal entity whose field of activity is concentrated in another area of ​​the economy, or an individual cannot act as a guarantor.

The practical meaning of establishing the fact of the presence of controlled debt to a foreign organization

At the same time, the establishment of the fact whether a given debt of a Russian organization to a foreign company belongs to the category of controlled ones has a quite clearly expressed practical meaning. The fact is that in accordance with the current legislation of the Russian Federation, the amount of interest paid for the use of a loan or credit is not taxed. However, in the event that credit relations arise between Russian and foreign organizations, the established limit value of such interest directly depends on whether the existing debt is recognized as controlled.

Based on the ratio of the amount of controlled debt and equity of the organization, the maximum amount of interest on such a loan, recognized as an expense, is determined. This value correlates with the amount of interest paid to the foreign lender on this loan, after which, on this basis, the accountant will be able to calculate the procedure for paying taxes associated with the provision of this loan, as well as the amount of taxes payable on this basis.

Such a mechanism for assessing the main characteristics of a loan or credit provided by a foreign organization to a Russian company is established by law in order to counteract tax evasion by overestimating the amount of interest on such loans. The formulas for calculating the maximum interest rate are designed in such a way that attempts to overestimate the interest on a loan received by a Russian company from a foreign organization turn out to be not only contrary to the requirements of the law, but also economically unprofitable for both participants in such a transaction.

At the same time, however, these formulas assume the possibility of changing the limit value of interest in accordance with the current situation on the credit market. But this possibility, as a rule, is associated with a specific time period.

One of the characteristics of business is the cyclical nature of development. Whatever the enterprise, it sooner or later enters a phase of crisis. It is during this period that the management of companies includes a maximum of tools that can take the company to a new level. Among the effective mechanisms used by business representatives are borrowed funds from foreign companies. Appeal to foreign partners is often associated with the low activity of the banking sector, which often has a personal orientation of the public sector.

What is controlled debt?

The definition of controlled debt refers to the debt that arises from a Russian organization in relation to a foreign company. The use of funds and their repayment are characterized by some specifics of conducting accounting. Controlled debt in respect of loans from foreign entities is subject to Russian law. The main guiding document for reporting on foreign debts is the Tax Code of the Russian Federation. debt subject to special control must meet the following conditions:

• The emergence of a controlled obligation is inextricably linked with the processes of involving foreign investors in the circle of participants in the company that lends money. Simply put, the owner of the capital becomes the founder of the company. Thus, the lender gets control over the current processes, gets the right to participate in the life of the company. the Russian legislator establishes a minimum threshold for the entry of a foreign capitalist to control the debt issued by him. The share in the authorized capital should not be less than 20 percent.

In practice, controlled debt credit relationships arise between Russian companies, one of which is controlled by an affiliate from abroad. The foreign firm essentially acts as a guarantor.

• To classify a legal entity as a dependent organization occurs in accordance with the requirements.
• The debts that are considered outstanding include loans that exceed the total capitalization of the borrowers' companies by more than 3 times. If the organizations that raise funding are financial institutions(leasing companies or banking institutions), the debt-to-equity ratio should be at least 12.5 times.

It is generally accepted that attracting foreign investment is one of the ways to aggressively optimize taxation. That's why tax inspections especially carefully check the statements of those companies that have foreign assets in the capital structure. From the day when the debt of enterprises becomes controllable, interest is already accrued for the use of attracted funds. Usually, payments to foreign investors are assigned in the form of dividends. According to the current legislation, this method of payment to the founders is recognized as legal. It is not difficult to issue such a withdrawal of funds - the company does not need to show reporting on such expenses in the income tax return. For them, a special form KND 11510056 is provided.

Tax Code of the Russian Federation

A separate article of the Tax Code, number 269, is devoted to controlled debt to foreign companies. In order to limit the burden on business, the Tax Code of the Russian Federation provides for a system of restrictions that are imposed on the amount of interest on servicing controlled debt:

• If the obligations are in Russian currency- rubles and are recognized in accordance with the rules as controlled, then the rate on such loans can be set in the range from 75 to 125 percent. Limit values ​​change annually. If the debt that has arisen is not the result of attracting foreign capital, a percentage of the refinancing rate should be applied.
• For debts that are issued in the currency of the state of the lender, for example, the euro, the value of EURIBOR (offer rate for European banks), increased by 4 points, is applied. Maximum value interest rate can reach EURIBOR increased by seven points.
• The Russian legislator has provided restrictions for transactions that are made in pounds sterling. Similar to the euro, a 4- to 7-pip LIBOR overshoot range applies.
• For controlled liabilities issued by Russian companies in yen and Swiss francs, the range of LIBOR rates is applied, which are exceeded by 2 and 5 points, respectively.

Article 269 of the Tax Code provides a precise definition of controlled debt. This is primarily the balance of an unpaid loan from an organization founded by a foreign firm or citizen. An entity that maintains records of such debts is allowed to charge interest on controlled debt at the end of the reporting period as an expense. Typically, this is the last date of the month. The financial burden is calculated by dividing the amount of accrued interest by a pre-calculated capitalization ratio. The last parameter, in turn, is calculated as the ratio between the total amount of the remaining loan and the amount of equity capital (authorized).

Loan commitments

As noted above, a certain tax regime can often be used to optimize the tax burden. Other ministries and departments have also joined the tax legislation on this issue. Thus, the Ministry of Finance of the Russian Federation, in its letter of 2013 No. 23476, cites factors that are clarifying in determining the explicit relationship between the borrower and the lender. So, when determining controlled debt, the following points should be checked (as well as organizations should monitor their implementation):

• In a company that attracts financing from foreign sources, the participation of the capitalist must be confirmed by the ownership of a certain block of shares.
• When classifying debt as controlled, the concept of cross-ownership is often used. Strengthening partnerships is often accompanied by the mutual involvement of founders from both sides in the process of enterprise capitalization. So, firm H, which lends company A a certain amount, receives 25 percent of the shares of company A. In turn, company A acquires a block of 50 percent of the shares of company H. It's simple.
• Article 105.2 of the same Tax Code provides the concept of ring-type ownership. With this method of interaction between partners, indirect participation in the capital is observed. The provability of such a fact is confirmed by the construction of a chain of beneficiaries.

Continuing the issue of controlled debt, the Ministry of Finance refers to the rather conservative, and at the same time, has not lost its relevance in modern realities, the Law of the RSFRD on competition, monopoly and other activities carried out in commodity markets. Even then, the regulatory document cited those who are directly or indirectly involved in business management in order to make a profit.

Controlled debt to a foreign organization: if the ratio changes

In general, such a process is considered quite natural, since the financial directors of companies cannot but offer to reduce the burden on the enterprise through partial repayment of large controlled debts. For this reason, the ratio between equity capital and previously attracted loan may change during the year. A number of Russian companies turned to the Ministry of Finance for clarification. The answer was not long in coming. The content is as follows:

• If in the reporting period there is a change in the ratio between equity and borrowed capital, the organization is not required to recalculate previously incurred expenses.
• The company's cost of paying interest on controlled debt should be determined in discrete or discontinuous ways.
• To carry out calculations on the limit amounts, it is necessary to use the calculation algorithm applied on the end date of each month. In order to recalculate already committed expenses, you will have to generate reports for each month. Cumulative totals do not need to be generated.

For cases when there is a change in the share of participation of a foreign company in the fate of the borrower, an agreed procedure for accounting for debt interest is provided. So, if until a certain moment the size of the capital investment of a foreign representative exceeded the own fund of a Russian company by 3 or 12.5 times, respectively, the recalculation is carried out in a similar way. The situation arises quite often, since a share in the authorized capital can be sold, which is tantamount to paying off the debt. Features of the application of the preferential regime are as follows:

• If, before the change, the share of foreign capital exceeded 20 percent, the rules described in paragraph two of Article 269 of the Tax Code of the Russian Federation should be applied.
• There are situations when foreign investors completely refuse to establish a Russian company. In this case, the size of the share reaches zero, which entails the termination of the procedure for calculating interest on the use of a controlled loan. The legislator sends the accountant to the rules described in paragraph one of Article 269 of the Tax Code of the Russian Federation.
• For cases where the end tax period(years), previously accrued interest on controlled debt has already been repaid, there is no need for recalculation.

Application of special rules

Referring to the same article 269 of the Tax Code, it can be noted that the legislator provides for the operation of an enterprise in a special tax regime if it has controlled debt on its balance sheet. So if total amount debt exceeds authorized capital firms (and this is not difficult, since most companies are companies with a fixed capital of 10-000 rubles when established), the organization already falls under the preferential regime. True, for banks and leasing companies, which already have high default capital, the condition is difficult to achieve. Only large corporations can afford to participate in schemes involving foreign capital for such organizations.

In practice, it often happens that the debt to a foreign enterprise becomes uncontrollable. Due to the fact that the calculation of interest on loans is carried out after each month, the terms of cooperation between companies on borrowed capital can also change. To resolve the issue, one should refer to Article 272 of the Tax Code. The norm clearly states that the calculation should be based on accounting policy organization in which the frequency for reporting on income tax is established.

Conclusion of additional agreements in order to avoid double taxation

One of the leading principles for the development of Russian and international legislation on controlled debt taxes is the exclusion from the activities of business entities of cases of accrual of simultaneously calculating tax base several countries. It is possible to prevent such precedents based on the norms of international law. To do this, it is enough to conclude an additional agreement or write down the corresponding clause in the main contract between the companies.

Principle one. In the event that a Russian firm makes payments in favor of foreign legal entities, then the income received by the second party must be taken into account on the side of the payer. This action means precisely fixing the tax base, in connection with which the recipient of dividends paid under the guise of interest on controlled debt will have completely different entries. The rule of reflection in the accounting of both countries should be prescribed in an international treaty. Based on the section of the contract, you can make changes to the accounting policy of the borrower's enterprise.

If interest on controlled debt is accrued in a timely manner, all the conditions of Article 269 of the Tax Code are met and double taxation is excluded by the relevant clause of the agreement between the borrower and the lender, there are all grounds for calculating the maximum discount rate on the loan. The calculation of the rate must be made taking into account the capitalization of the organization, which has controlled debt.

Accounting in the absence of equity

The equity capital of Russian companies using the practice of controlled debt is necessarily used as the main parameter in the calculations. For cases when the difference between financial indicators becomes equal to zero or goes into the red, the following rules should be followed:

• The limit for accruing interest, regardless of the currency of the attracted capital, becomes equal to zero.
• The amount of all accrued income is equal to the paid dividends.
• For the purpose of determining expenses, interest on existing debt is not taken into account.

According to the explanation of the Ministry of Finance, the tendency of the calculated indicators to zero or to go negative makes it impossible to accrue interest on the obligations assumed. In this case, it is quite logical to apply a zero rate for calculating expenses.

Nuances

In its desire to stop crimes of an economic nature, the legislator is constantly working to improve the standards. The practice of distributing financial flows in organizations that use controlled debt as an effective tool shows a clear avoidance of clarifying the tax base. It turns out that the prevailing majority of transactions between enterprises with common beneficiaries came out of the legal field of the tax regime. It was the latest changes in the legislation that made it possible to arm the guardians of financial discipline with a new tool for controlling negligent enterprises. After clarification of the parameters for bringing to the conditions of controlled transactions, a certain part of international economic contracts began to fall out of the preferential taxation regime. That is, some transactions are no longer recognized as controlled.

The second issue, which has been brewing for years, required clarity on the definition of thin capitalization rules. So, starting from 2017, the conditions for issuing loans in a special tax regime became possible only with the direct entry of capital owners into the business of the financed enterprise. This began to mean only one thing - in order to recognize interdependence, a foreign investor must appear in an extract from the unified state register. Thus, the legislator actually recognized that the legal field for recognizing international transactions on loans as worthy tax incentives, was imperfect.

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

1. For the purposes of this chapter, debt obligations are understood as loans, commodity and commercial loans, loans, bank deposits, bank accounts or other borrowings, regardless of the method of their registration.

For debt obligations of any kind, interest calculated on the basis of the actual rate is recognized as income (expense), unless otherwise provided by this article.

For debt obligations of any kind that have arisen as a result of transactions recognized in accordance with this Code as controlled transactions, interest calculated on the basis of the actual rate, taking into account the provisions of Section V.1 of this Code, is recognized as income (expense), unless otherwise established by this article.

1.1. In respect of a debt obligation arising as a result of a transaction recognized as a controlled transaction in accordance with this Code, a taxpayer shall have the right to:

(see text in previous edition)

recognize as income the interest calculated on the basis of the actual rate on such debt obligations, if this rate exceeds the minimum value of the range of limit values ​​established by paragraph 1.2 of this article;

recognize as an expense the interest calculated on the basis of the actual rate on such debt obligations, if this rate is less than the maximum value of the range of limit values ​​established by clause 1.2 of this article.

In case of non-compliance with the conditions established by paragraphs one to three of this clause, on debt obligations arising from transactions recognized in accordance with this Code as controlled transactions, interest is recognized as income (expense) calculated on the basis of the actual rate, taking into account the provisions of Section V.1 of this Code.

(see text in previous edition)

(see text in previous edition)

2. For the purposes of this article, the outstanding debt of a taxpayer that is a Russian organization for the following debt obligations of this taxpayer is recognized as controlled debt (unless otherwise provided by this article):

1) for a debt obligation to a foreign person that is a related person of a taxpayer - a Russian organization in accordance with subparagraph 1 or 9 of paragraph 2 of Article 105.1 of this Code, if such a foreign person directly or indirectly participates in the taxpayer - a Russian organization specified in paragraph one of this item;

3) under a debt obligation under which the foreign entity specified in subparagraph 1 of this paragraph and (or) its interdependent person specified in subparagraph 2 of this paragraph act as a surety, guarantor or otherwise undertake to ensure the fulfillment of this debt obligation of a taxpayer - a Russian organization , unless otherwise provided by paragraph 9 of this article.

(see text in previous edition)

3. If the amount of controlled debt of the taxpayer is more than 3 times (for banks and organizations engaged in leasing activities - more than 12.5 times) exceeds the difference between the amount of assets and the amount of liabilities of this taxpayer (hereinafter in this article - own capital) as of the last day of the reporting (tax) period, when determining the maximum amount of interest to be included in the expenses of this taxpayer, the rules established by paragraphs 4 - of this article are applied. When determining the amount of controlled debt of a taxpayer for the purposes of this article, the amounts of controlled debt arising from all obligations of this taxpayer specified in paragraph 2 of this article, in aggregate, shall be taken into account.

For the purposes of this article, an organization engaged in leasing activities is recognized as an organization for which, in the reporting (tax) period, on the last day of which the maximum amount of interest to be included in expenses is determined, income from leasing activities taken into account when determining the tax base in accordance with with this chapter, constitute at least 90 percent of all income taken into account when determining the tax base in accordance with this chapter for the specified reporting (tax) period.

(see text in previous edition)

4. The maximum amount of interest to be included in expenses on controlled debt is calculated by the taxpayer on the last day of each reporting (tax) period by dividing the amount of interest accrued by this taxpayer in each reporting (tax) period on controlled debt by the capitalization coefficient calculated as of the last reporting date of the relevant reporting (tax) period. At the same time, in the event of a change in the capitalization ratio in the next reporting period or following the results of the tax period compared to previous reporting periods, the maximum amount of interest to be included in expenses on controlled debt for the previous reporting period not subject to change.

For the purposes of this article, the capitalization ratio is determined by dividing the amount of the relevant outstanding controlled debt by the amount of equity corresponding to the share of participation of the related foreign entity specified in subparagraph 1 of paragraph 2 of this article in a Russian organization, and dividing the result by 3 (for banks and organizations engaged in leasing activities - by 12.5).

When determining the amount of equity capital, the amounts of debt obligations in the form of debt on taxes and fees, including current debt for the payment of taxes and fees, the amount of deferrals, installments and investment tax credit.

(see text in previous edition)

5. Expenses include interest on controlled debt in an amount not exceeding the maximum amount of interest to be included in expenses calculated in accordance with paragraph 4 of this article, but not more than the actually accrued interest.

In this case, the rules established by paragraph 4 of this article shall not apply to interest on borrowed funds, if the outstanding debt on the corresponding debt obligation is not controlled.

6. The positive difference between the accrued interest and the marginal interest calculated in accordance with paragraph 4 of this article shall be equated for tax purposes with dividends paid to a foreign person specified in subparagraph 1 of paragraph 2 of this article and taxed in accordance with paragraph two of paragraph 3 Article 224 or paragraph 3 of Article 284 of this Code.

7. An outstanding debt under a debt obligation is not recognized as a controlled debt for a taxpayer - a Russian organization, if the calculation and withholding of the amount of tax from interest income foreign organization, paid under such a debt obligation, are not made by the tax agent in accordance with subparagraph 8 of paragraph 2 of Article 310 of this Code.

7.1. An outstanding debt under a debt obligation is not recognized as a controlled debt for a taxpayer - a Russian organization, if the following conditions are simultaneously met:

cash, constituting the specified outstanding debt, are used exclusively to finance an investment project implemented by the taxpayer in the territory of the Russian Federation;

the terms of the agreement, in accordance with which the debt obligation specified in this paragraph arose, provide for the beginning of the repayment of the amount of outstanding debt on such a debt obligation not earlier than five years after its occurrence;

the total share of the direct and indirect participation of the related foreign entity specified in subparagraph 1 of paragraph 2 of this article in the Russian organization does not exceed 35 percent;

the place of registration (place of tax residence) of a person to whom a debt obligation has arisen is a foreign state with which an agreement (agreement, convention) on the avoidance of double taxation has been concluded.

For the purposes of this paragraph investment project the creation on the territory of the Russian Federation of a new production complex for the production of goods and (or) the provision of services is recognized. The production complex is recognized as new if it was put into operation after January 1, 2019 and was not previously in operation.

In case of non-fulfillment of one of the conditions established by this paragraph, the provisions of this article shall apply to the outstanding debt under the debt obligation specified in this paragraph, without regard to the provisions of this paragraph, from the date of occurrence of the corresponding debt obligation.

8. The outstanding debt specified in subparagraph 2 of paragraph 2 of this article shall not be recognized as controlled debt for a taxpayer - a Russian organization, if the following conditions are simultaneously met (taking into account the specifics established by paragraph 11 of this article):

1) a debt obligation has arisen to a Russian organization or an individual who, in accordance with this Code, is tax residents the Russian Federation during the entire reporting (tax) period and recognized as related persons of a foreign entity specified in subparagraph 1 of paragraph 2 of this article, on the basis of subparagraph 1, , or 9 of paragraph 2 of article 105.1 of this Code;

2) the Russian organization or individual, to which a debt obligation arose, during the reporting (tax) period does not have an outstanding debt on comparable debt obligations to a foreign person specified in