As part of the TenderHelp online service, the process of obtaining a bank guarantee is as automated as possible. This approach helps speed up the process of application processing by the bank and reduce its costs. As a result, service clients receive guarantees at the best price. What does the cost of a bank guarantee consist of? Several important factors come into play.
What affects the cost of a bank guarantee?
Guarantee amount. This is one of the most important factors that directly affects the cost of the guarantee, because first of all it is calculated as a percentage of the amount of the guarantee itself. The amount of required security is always specified in the tender documentation. According to 44-FZ, if a bidder significantly reduces the initial cost of the contract, then the customer may demand an increase in the guarantee amount by 1.5 times.
Warranty period. Under a guarantee, the bank undertakes to cover the risks of the beneficiary (customer) under a specific contract. The longer the duration of this contract, the longer the duration of the bank's obligations. Consequently, the more expensive the bank guarantee will be.
Financial position and experience of the company. Another significant factor. Many banks do not issue guarantees to unprofitable companies at all, or in this case the guarantee will cost significantly more. If the company has not previously fulfilled such contracts, the bank may require a guarantee from another organization with experience in this area. Otherwise, the bank will increase the commission.
Availability of advance payment under contract. As a rule, the presence of an advance under a contract is also a risk for the guarantor bank. The contractor may sign the contract, receive an advance and not fulfill the terms of the contract. Then the bank will have to reimburse the customer for the advance amount under the guarantee. Therefore, the cost of the advance guarantee is higher. But the contractor can agree with the customer and not take an advance, then the cost of the guarantee will be lower.
Undisputed write-off. The terms of the agreement of many bank guarantees provide for the possibility of undisputed debiting of funds from the account of the guarantor bank. An undisputed write-off is carried out if the guarantor has not fulfilled the requirements of the beneficiary (customer of the contract) to pay funds under the guarantee within the prescribed time frame. This is another additional risk for the bank, and it also leads to an increase in the cost of the guarantee. Since almost 90% of bank guarantees are subject to undisputed write-off, many banks initially develop tariffs with this in mind. Other credit institutions add 5-10% to the cost of the guarantee if it provides for undisputed write-off.
Issued for several years. Receipt of a bank guarantee is associated with the organization’s participation in a competition within the framework of Federal Law dated July 21, 2005 N 94-FZ. What is the procedure for reflecting in accounting and tax accounting the organization’s expenses for paying remuneration to the bank for issuing a bank guarantee?
According to Part 4 of Art. 29 of the Federal Law of July 21, 2005 N 94-FZ "On placing orders for the supply of goods, performance of work, provision of services for state and municipal needs" if the customer, the authorized body has established a requirement to ensure the execution of the contract, the contract is concluded, in particular, only after the tender participant with whom the contract is concluded has provided an irrevocable bank guarantee issued by a bank or other credit institution, a surety agreement, etc.
In accordance with paragraph 1 of Art. 329 of the Civil Code of the Russian Federation, the fulfillment of obligations can be ensured by a penalty, a pledge, retention of the debtor’s property, a surety, a bank guarantee, a deposit and other methods provided for by law or contract. Thus, a bank guarantee is one of the ways to ensure the fulfillment of obligations. By virtue of a bank guarantee, a bank, other credit institution or insurance organization(guarantor) give, at the request of another person (principal), a written obligation to pay the principal’s creditor (beneficiary) in accordance with the terms of the obligation given by the guarantor, a sum of money upon submission by the beneficiary of a written demand for its payment (Article 368 of the Civil Code of the Russian Federation). A bank guarantee ensures the proper fulfillment by the principal of his obligation to the beneficiary (the main obligation) (clause 1 of Article 369 of the Civil Code of the Russian Federation). For issuing a bank guarantee, the principal pays a fee to the guarantor (clause 2 of Article 369 of the Civil Code of the Russian Federation). A bank guarantee comes into force from the date of its issue, unless otherwise provided in the guarantee (Article 373 of the Civil Code of the Russian Federation).
According to paragraph 8 of Art. 5 of the Federal Law of December 2, 1990 N 395-1 “On Banks and Banking Activities”, the issuance of bank guarantees is a banking operation. Therefore, we believe that for accounting and tax accounting purposes, an organization’s expenses for paying remuneration to the bank for issuing a bank guarantee by the latter can be considered as payment for the bank’s services.
Accounting
Expenses associated with payment for services provided by credit institutions are other expenses (clause 11 of PBU 10/99 “Organization expenses” (hereinafter referred to as PBU 10/99)). Such expenses are taken into account accounting in an amount calculated in monetary terms equal to the amount of payment in cash and other forms or the amount of accounts payable (clauses 14.1, 6 PBU 10/99).
According to clause 18 of PBU 10/99, expenses are recognized in the reporting period in which they occurred, regardless of the time of actual payment of funds and other form of implementation (assuming the temporary certainty of facts economic activity).
Thus, with the accrual method of accounting, the fact of payment does not matter. Accordingly, in the situation under consideration, the costs of paying remuneration for obtaining a bank guarantee must be taken into account in the period of their occurrence, regardless of the payment procedure (one time or in installments).
In accounting, expenses for payment of remuneration for receiving a bank guarantee can be reflected using account 76 “Settlements with various debtors and creditors”:
Debit Credit
- remuneration was paid to the bank for providing a bank guarantee;
- remuneration is included in other expenses.
If payment of remuneration occurs gradually, then the following entries are made in accounting:
Debit Credit
- part of the remuneration for providing a bank guarantee was transferred to the bank;
Debit, subaccount "Other expenses" Credit
- remuneration is included in other expenses;
Debit Credit
- the final payment of the remuneration amount has been made.
For your information:
Until 01/01/2011, the version of clause 65 of the Regulations on accounting and financial statements V Russian Federation(hereinafter referred to as the Regulations), approved by Order of the Ministry of Finance of Russia dated July 29, 1998 N 34n, according to which costs incurred by the organization in the reporting period, but relating to subsequent reporting periods, are reflected in the balance sheet as a separate item as deferred expenses and are subject to write-off in the manner established by the organization (uniformly, in proportion to the volume of production, etc.) during the period to which they relate.
In this regard, some experts suggested that expenses associated with obtaining a bank guarantee issued for more than one reporting period should be taken into account as part of deferred expenses.
However, by order of the Ministry of Finance of Russia dated December 24, 2010 N 186n “On introducing amendments to regulatory legal acts on accounting and declaring invalid the order of the Ministry of Finance of the Russian Federation dated 15.01.1997 N 3” (hereinafter referred to as Order N 186n) to regulatory legal acts on accounting accounting changes were made that came into force starting from the financial statements of 2011.
According to the new edition of clause 65 of the Regulations, “costs incurred by the organization in the reporting period, but relating to the following reporting periods, are reflected in the balance sheet in accordance with the conditions for recognition of assets established by regulatory legal acts on accounting, and are subject to write-off in the manner established for write-off of the value of assets of this type."
Thus, for the purpose of accounting for such costs (assets), the above norm refers to regulatory legal acts on accounting, in other words, to PBU. If any accounting regulations do not oblige expenses to be considered expenses of future periods, the company has the right to recognize them immediately upon accrual.
At the same time, the Chart of Accounts for accounting financial and economic activities of organizations and the Instructions for its application, approved by Order of the Ministry of Finance of Russia dated October 31, 2000 N 94n, have not changed since 2011, and the list of accounting objects on account 97 “Future expenses” remains open.
Clause 19 of PBU 10/99 has not undergone any changes, according to which in the case where expenses determine the receipt of income over several reporting periods and when the relationship between income and expenses cannot be clearly defined or is determined indirectly, expenses are recognized in Profit and loss statement through their reasonable distribution between reporting periods.
Nevertheless, with the changes made, the legislator, in fact, defined the main criterion that must be applied each time when deciding on the inclusion of accounting objects as part of future expenses, namely, that the use of the account in accounting is possible only if the costs incurred meet the concept of an asset.
According to clause 7.2 of the Concept of accounting in a market economy of Russia (approved by the Methodological Council on Accounting under the Ministry of Finance of Russia and the Presidential Council of the Institute of Professional Accountants on December 29, 1997, hereinafter referred to as the Concept), assets are considered to be economic assets over which the organization received control as a result of fait accompli. economic activity and which should bring it economic benefits in future. Clause 8.3 of the Concept states that an asset is recognized in the balance sheet when it is probable that the organization will receive economic benefits in the future from this asset and when its value can be measured with a sufficient degree of reliability. By virtue of clause 7.2.1 of the Concept, future economic benefits are the potential of assets to directly or indirectly contribute to the flow of cash into the organization.
An asset is considered to provide future economic benefits to the entity when it can be:
a) used separately or in combination with another asset in the process of production of products, works, services intended for sale;
b) exchanged for another asset;
c) used to pay off an obligation;
d) distributed among the owners of the organization.
In turn, expenses are recognized in the income statement when the resulting decrease in future economic benefits due to a decrease in an asset or an increase in a liability can be measured reliably. If expenses result in the receipt of income over several reporting periods and when the relationship between income and expenses cannot be clearly determined or is determined indirectly, expenses are recognized in the income statement by reasonably allocating them between periods. Costs are recognized as an expense of the reporting period when it is obvious that they will not bring future economic benefits to the organization, or when future economic benefits do not meet the criterion for recognizing an asset in the balance sheet (clause 8.6 of the Concept).
At the same time, in accordance with clause 6.3.4 of the Concept, when generating information in accounting, one should adhere to a certain prudence in judgments and estimates that take place under conditions of uncertainty, so that assets and income are not overstated, and liabilities and expenses are not understated . The accounting policy of the organization must ensure greater readiness to recognize expenses and liabilities in accounting than possible income and assets, preventing the creation of hidden reserves (requirement of prudence) (clause 6 of PBU 1/2008 “Accounting Policy of the Organization”).
The remuneration for obtaining a bank guarantee is, in fact, a payment for the services provided by the bank in providing a bank guarantee.
Note that no PBU establishes a write-off procedure for this type of cost. Therefore, when deciding whether to include expenses for accounting for remuneration as part of future expenses, it is necessary to proceed from whether the expenses incurred correspond to the concept of an asset. In our opinion, the costs of paying remuneration for receiving a bank guarantee do not meet the criteria for an asset listed earlier (they cannot be used separately, exchanged for another asset, used to pay off a liability), in addition, these costs do not determine the receipt of income over the next reporting periods.
In this regard, we believe that such expenses are not deferred expenses and should be included as expenses in the period in which they are incurred. It does not matter whether such expenses are paid or not.
At the same time, we believe that the new wording of clause 65 of the Regulations does not exclude the right of an organization to determine its costs as deferred expenses if it believes that such costs are associated with generating income in the future. Until new regulations are adopted regulating the accounting procedure for specific types of assets (and expenses) reflected as part of the balance sheet asset, the organization has the right to apply the existing procedure for accounting expenses. In any case, the procedure for recognizing the expenses in question must be fixed in the accounting policy of the organization (clause 7 of the Accounting Regulations “Accounting Policy of the Organization” (PBU 1/2008), approved by Order of the Ministry of Finance of Russia dated October 6, 2008 N 106n).
Tax accounting
According to paragraph 1 of Art. 252 of the Tax Code of the Russian Federation reduces the income received by the amount of expenses incurred (except for the expenses specified in Article 270 of the Tax Code of the Russian Federation). In this case, these expenses must be economically justified, documented and aimed at generating income.
In accordance with paragraphs. 25 clause 1 art. 264 of the Tax Code of the Russian Federation, other expenses of the taxpayer include expenses for paying for bank services, if such expenses are related to production and (or) sales. In other cases, in accordance with paragraphs. 15 clause 1 art. 265 of the Tax Code of the Russian Federation, expenses for banking services are classified as non-operating expenses.
Clause 4 of Art. 252 of the Tax Code of the Russian Federation provides that if some costs equally may be assigned simultaneously to several groups of expenses, the taxpayer has the right to independently determine which group he will assign such expenses to. Consequently, guided by paragraph 4 of Art. 252 of the Tax Code of the Russian Federation, an organization has the right to independently decide which expenses (other or non-operating) it will take into account expenses in the form of remuneration for receiving a bank guarantee, fixing the appropriate procedure in its accounting policy for tax purposes.
According to paragraph 1 of Art. 272 of the Tax Code of the Russian Federation, expenses are accepted for tax purposes in the reporting (tax) period to which they relate, regardless of the time of actual payment of funds. Thus, in tax accounting using the accrual method, for the purposes of recognizing expenses, the fact of payment (at a time, in installments) also does not matter.
With the accrual method according to paragraphs. 3 paragraph 7 art. 272 of the Tax Code of the Russian Federation, the date of incurring non-operating and other expenses (for expenses in the form of expenses for payment to third-party organizations for services provided to them) is recognized as one of the dates:
Settlement date in accordance with the terms of concluded agreements;
The date of presentation to the taxpayer of documents serving as the basis for making calculations;
Or the last day of the reporting (tax) period.
According to experts from the Ministry of Finance of Russia, set out in letter dated 04.07.2005 N 03-03-04/1/50, the norm of paragraphs. 3 paragraph 7 art. 272 of the Tax Code of the Russian Federation should be applied as follows. Expenses are taken into account in the tax base on the day on which, according to the agreement, settlements must be made. If the agreement does not provide for such a condition, these expenses are included in the expenses taken into account in the tax base for corporate income tax upon presentation of documents serving as the basis for making calculations, or on the last day of the reporting (tax) period.
In a later letter dated February 16, 2010 N 03-03-06/1/70, financiers expressed the opinion that expenses are recognized for one of those listed in paragraphs. 3 paragraph 7 art. 272 of the Tax Code of the Russian Federation dates depending on which of them came earlier.
At the same time, in letters from the Ministry of Finance of Russia dated 08/29/2005 N 03-03-04/1/183, Federal Tax Service for Moscow dated 06/11/2010 N 16-15/062200@, dated 08/06/2009 N 16-15/080966 another option was recommended: one of the three methods of recognizing expenses listed in paragraphs. 3 paragraph 7 art. 272 of the Tax Code of the Russian Federation, the taxpayer must include it in the accounting policy. The latter point of view is confirmed by court decisions (see, for example, decisions of the FAS Moscow District dated November 3, 2010 N KA-A40/13562-10, FAS Volga District dated July 16, 2009 N A55-18692/2008 (determined by the Supreme Arbitration Court of the Russian Federation dated November 23, 2009 N VAS-14554/09, the transfer of the case to the Presidium of the Supreme Arbitration Court of the Russian Federation for review in the manner of supervision was refused)).
Therefore, taking into account the explanations of the Russian Ministry of Finance, we believe that the organization can apply any of available ways recognition of the expenses in question, fixing it in the accounting policy.
At the same time, it is necessary to take into account that regarding the moment of recognition of the costs in question, there are also clarifications from the Ministry of Finance of Russia, according to which costs in the form of a fee for the provision of a bank guarantee acquired in order to ensure the fulfillment of obligations under the contract must be taken into account evenly over the period for which which it is purchased (letter of the Ministry of Finance of Russia dated January 11, 2011 N 03-03-06/1/4).
In this case, the argumentation of the financial department boils down to the following. According to paragraph 1 of Art. 272 of the Tax Code of the Russian Federation, expenses accepted for tax purposes taking into account the provisions of Chapter 25 of the Tax Code of the Russian Federation are recognized as such in the reporting (tax) period to which they relate, regardless of the time of actual payment of funds and (or) other form of payment. Expenses are recognized in the reporting (tax) period in which these expenses arise based on the terms of the transactions. If the transaction does not contain such conditions and the relationship between income and expenses cannot be clearly defined or is determined indirectly, the expenses are distributed by the taxpayer independently.
Thus, if the organization decides to adhere to the opinion of financial officials, the costs in the form of fees for the provision of a bank guarantee obtained in order to ensure the fulfillment of obligations under the contract must be taken into account evenly over the period for which it is purchased.
Please note that if the remuneration for issuing a bank guarantee is determined as a percentage, then, in the opinion of the Ministry of Finance of Russia, presented in letters dated January 16, 2008 N 03-03-06/1/7, dated February 25, 2010 N 03-03-06/ 1/90, expenses should be taken into account using Art. 269 of the Tax Code of the Russian Federation. However, in a later letter dated January 11, 2011 N 03-03-06/1/4, the financial department agrees to take into account such expenses (even if they are expressed in the contract as a percentage of the guarantee amount) in full without any restrictions (except for uniform distributions based on the validity period of the guarantee) as part of other or non-operating expenses without their normalization as interest under Art. 269 of the Tax Code of the Russian Federation.
Prepared answer:
Expert of the Legal Consulting Service GARANT
Member of the Chamber of Tax Advisors Stepovaya Yana
Response quality control:
Reviewer of the Legal Consulting Service GARANT
Monaco Olga
The material was prepared on the basis of individual written consultation provided as part of the Legal Consulting service.
In the current economic situation, a bank guarantee is one of the most popular financial services. It is an instrument for insuring financial risks that may arise due to the counterparty’s refusal to fulfill obligations.
Bank guarantee agreements can be concluded by credit (insurance) organizations for any required amount and for almost any period of time, not only with legal entities, but also with IP.
Based on clause 1 of Article 369 of the Civil Code of the Russian Federation, a bank guarantee ensures the proper fulfillment by the principal of his obligation to the beneficiary (the main obligation). Thus, a bank guarantee is one of the forms of securing obligations and is a guarantee of a bank *, which guarantees the fulfillment of the obligation assumed by the company that applied for such a guarantee.
*Another credit organization that has the appropriate license from the Central Bank of the Russian Federation.
In accordance with Article 368 of the Civil Code of the Russian Federation, under a bank guarantee agreement, the bank acting as a guarantor issues, at the request of the client (principal), a written obligation to pay the client’s creditor (beneficiary) a sum of money* upon submission by the beneficiary of a written demand for its payment.
*In accordance with the terms of the obligation given by the guarantor.
Providing a bank guarantee is mandatory in some cases, for example:
- for concluding government contracts,
- when fulfilling government orders,
- to participate in tenders, auctions, competitions,
- and so on.
The issuance of guarantees by banks relates to banking operations in accordance with clause 8, part 1, article 5 of the Federal Law of December 2, 1990. No. 395-1 “On banks and banking activities.”
In accordance with the provisions of paragraph 3 of paragraph 3 of Article 149 of the Tax Code of the Russian Federation, operations for the execution of bank guarantees are not subject to taxation (exempt from taxation) of VAT on the territory of the Russian Federation:
- issuance and cancellation of a bank guarantee,
- confirmation and modification of the terms of the specified guarantee,
- payment under such guarantee,
- preparation and verification of documents under this guarantee.
The situation is different with guarantees issued by insurance organizations. When the guarantor is Insurance Company, then the remuneration for its services is subject to VAT. The amount of “input” VAT on remuneration to the guarantor can be deducted by the principal company subject to the conditions specified in clause 1 of Article 172 of the Tax Code of the Russian Federation.
Our article will discuss the features of accounting and tax accounting of expenses for remuneration to the guarantor of the principal organization.
Accounting for guarantor remuneration
It should be noted that the accounting of remuneration to the guarantor directly depends on the type of obligation to ensure the fulfillment of which the bank guarantee was issued.Situation 1:A bank guarantee was obtained to ensure the fulfillment of obligations to pay for the purchased property.
If the buyer provides a bank guarantee to the seller of the property, then the remuneration to the guarantor is an expense directly related to the acquisition of such property.
According to clause 23 of the Regulations on accounting and financial reporting, the assessment of property acquired for a fee is carried out by summing up the actual costs incurred for its purchase.
The actual costs incurred include, in particular:
- costs of acquiring the property itself,
- interest paid on the commercial loan provided upon acquisition,
- markups (surcharges),
- commissions (cost of services) paid to supply, foreign trade and other organizations,
- customs duties and other payments,
- costs of transportation, storage and delivery carried out by third parties.
Thus, the amounts of remuneration to the guarantor are included in the actual cost of the acquired assets if the bank guarantee was issued before these assets were accepted for accounting.
In this case, the following transactions are made:
- Debit asset accounting accounts (01/07/08/10/41, etc.) Credit- the amount of remuneration to the guarantor included in the actual cost of the asset is reflected.
- Debit account 76 “Settlements with various debtors and creditors” Credit
- Debit account 91.2 “Other expenses” Credit Account 76 “Settlements with various debtors and creditors” - reflects the amount of remuneration to the guarantor, which is not included in the actual value of the asset.
If a bank guarantee is obtained by the borrower in order to obtain borrowed funds, then in accordance with clause 3 of PBU 15/2008, the costs of remuneration to the guarantor are included in other costs directly related to obtaining loans (credits).
Based on clause 7 of PBU 15/2008, borrowing costs are recognized as other expenses.
According to clause 8 of PBU 15/2008, additional borrowing costs can be included evenly in other expenses during the term of the loan (loan agreement).
Accordingly, the organization in its accounting policy for accounting purposes must establish a method for accounting for additional borrowing costs:
- Or at a time in the reporting period to which they relate (clause 6 of PBU 15/2008),
- Or evenly throughout the loan term (clause 8 of PBU 15/2008)*.
However, the costs of remuneration to the guarantor associated with obtaining borrowed funds do not relate to any specific assets, and therefore the organization must provide for this point in its accounting policies (such costs can be reflected as part of other current assets).
The following entries will need to be reflected in the accounting records:
- Debit account 91.2 “Other expenses” Credit
- Debit account 76 “Settlements with various debtors and creditors” Credit account 51 “Settlement accounts” - payment of remuneration to the guarantor is reflected.
The amounts of remuneration to the guarantor for guarantees related to other obligations (for example, with the conclusion of government contracts and the execution of government orders) are included in:
- expenses for ordinary activities,
- or as part of other expenses,
If a bank guarantee is related to the fulfillment of obligations under an agreement, the receipt of income under which is expected over several reporting periods, the costs of remuneration of the guarantor should be reasonably distributed between reporting periods in accordance with clause 19 of PBU 10/99.
Otherwise, the guarantor's remuneration is taken into account in the reporting period in which the expense was incurred.
In accounting, the guarantor's remuneration is reflected in the following entries:
- Debit account 91.2 “Other expenses” Credit Account 76 “Settlements with various debtors and creditors” - reflects the amount (in whole or in part) of remuneration to the guarantor.
- Debit account 76 “Settlements with various debtors and creditors” Credit account 51 “Settlement accounts” - payment of remuneration to the guarantor is reflected.
Income tax
Expenses for remuneration of the guarantor reduce the tax base for income tax, subject to the conditions set out in paragraph 1 of Article 252 of the Tax Code of the Russian Federation, i.e. they must be economically justified and documented.In accordance with clause 1 of Article 252 of the Tax Code of the Russian Federation, justified expenses are understood as economically justified expenses, the assessment of which is expressed in monetary form.
Documented expenses mean expenses confirmed by documents drawn up in accordance with the legislation of the Russian Federation, or documents drawn up in accordance with business customs used in foreign country, on the territory of which the corresponding expenses were incurred, and (or) documents indirectly confirming the expenses incurred (including a customs declaration, business trip order, travel documents, report on work performed in accordance with the contract).
The procedure for accounting for expenses for remuneration under a bank guarantee in tax accounting, as well as in accounting, depends on the type of obligation to secure the fulfillment of which the guarantee was issued.
It also matters whether the guarantor is a bank or an insurance company.
Situation 1:A bank guarantee was obtained to ensure the fulfillment of obligations to pay for the purchased property.
In accordance with clause 2 of Article 254 of the Tax Code of the Russian Federation, the cost of inventories included in material costs is determined based on the prices of their acquisition (excluding VAT and excise taxes, except for cases provided for by the Tax Code of the Russian Federation), including:
- commissions paid to intermediary organizations,
- import customs duties and taxes,
- transportation costs,
- other costs associated with the acquisition of inventories.
- for the delivery of these goods,
- warehouse costs,
- other expenses of the current month related to the purchase, if they are not included in the cost of purchasing the goods.
All other expenses, with the exception of non-operating expenses determined in accordance with Article 265 of the Tax Code of the Russian Federation, incurred in the current month are recognized as indirect expenses and reduce income from sales of the current month.
Accordingly, if the receipt of a guarantee is directly related to the purchase of goods, the organization has the right to include the amount of this remuneration in the cost of its acquisition, thus increasing the amount of direct expenses.
According to Article 320, the organization must establish in its accounting policy for tax purposes the procedure for determining the cost of purchasing goods.
According to clause 1 of Article 257 of the Tax Code of the Russian Federation, the initial cost of fixed assets is defined as the sum of expenses for their acquisition, construction, production, delivery and bringing it to a state in which it is suitable for use.
At the same time, expenses for paying for bank services can also be recognized:
- as indirect costs associated with production and sales (Article 320 of the Tax Code of the Russian Federation),
- as part of other expenses associated with production and sales (clause 25, clause 1, article 264),
- as part of non-operating expenses (clause 15, clause 1, article 265 of the Tax Code of the Russian Federation).
Summarizing the above, in the case of receiving a guarantee to secure obligations to pay for inventory, fixed assets and other assets, companies independently choose the method of including the costs of remuneration of guarantors for tax accounting purposes and consolidate this method in their accounting policies.
Situation 2:A bank guarantee was obtained to ensure the fulfillment of debt obligations (loans, credits, etc.).
Remuneration for the guarantee received to ensure the execution of loans and credits is taken into account as part of non-operating expenses according to:
- clause 15 clause 1 article 265 of the Tax Code of the Russian Federation (under a bank guarantee)
- clause 20 clause 1 of article 265 of the Tax Code of the Russian Federation (guarantor - insurance company),
It should be taken into account that in accordance with paragraph 2 of paragraph 1 of Article 265 of the Tax Code of the Russian Federation, expenses in the form of interest on debt obligations any kind, are recognized as a taxpayer, taking into account the features provided for in Article 269 of the Tax Code of the Russian Federation.
The above-mentioned features are the established limits within which interest can be taken into account for tax accounting purposes for income tax in accordance with Article 269 of the Tax Code of the Russian Federation.
Accordingly, organizations that pay a percentage fee to the bank for issuing a guarantee face a tax risk if the amounts of such remuneration do not fall within the limits established by Article 269 of the Tax Code of the Russian Federation.
According to the explanations of the Ministry of Finance, given in Letter No. 03-03-06/1/7 dated January 16, 2008, taxpayers, in the case of determining the amount of remuneration for providing a bank guarantee as a percentage, must apply the provisions of Article 269 of the Tax Code of the Russian Federation:
“Taking into account that, under the terms of the agreement on the provision of a bank guarantee, the amount of the bank’s commission is set as a percentage of the amount of products supplied, for profit tax purposes such expenses are equated to expenses in the form of interest on debt obligations.
So, according to paragraph 3 of Art. 43 of the Code, interest is recognized as any pre-declared (established) income, including in the form of a discount, received on a debt obligation of any type (regardless of the method of its execution).
In this case, interest is recognized, in particular, as income received from cash deposits and debt obligations.
Features of taxation of expenses in the form of interest on debt obligations are established by Art. 269 of the Code."
Therefore, if an organization takes the position that the guarantor’s remuneration is not related to the use of borrowed funds and, accordingly, takes into account the costs of remuneration to the guarantor, expressed as a percentage, in full, while exceeding the limit established by Article 269 of the Tax Code of the Russian Federation, then it may have the need to defend one's position in court.
Note:In accordance with the opinion of the Ministry of Finance, expressed in the Letter dated 01.08.2005. No. 03-03-04/1/111, the costs of obtaining a bank guarantee, provided they are justified, ensuring the received loans used for the acquisition of inventories, inventory and fixed assets, are included in the cost of these assets.
Situation 3:A bank guarantee was obtained to ensure the fulfillment of other obligations.
Based on paragraph 25, paragraph 1, Article 264 of the Tax Code of the Russian Federation, other expenses of the taxpayer include expenses for paying for bank services, if these expenses are related to production and sales, and in other cases, according to paragraph 15, paragraph 1, Article 265 of the Tax Code of the Russian Federation, expenses for bank services are considered non-operating expenses.
As mentioned above, in accordance with clause 4 of Article 252 of the Tax Code of the Russian Federation, the principal company has the right to independently determine how the costs of remuneration to the guarantor will be taken into account, fixing the chosen method in the accounting policy for tax purposes.
To take part in the competition of national importance, a bank guarantee is required, which confirms the bank’s obligation to pay a fine if the person taking out the loan refuses to pay the funds. But do all banks have the right to issue such guarantees? As it turns out, not all. The guarantees issued by banks are all different. This may be a guarantee for an application to participate in a competition, auction or trade. Such a guarantee is necessary so that the customer is absolutely sure that his interests will be protected, and the amount of the bank guarantee will definitely be paid.
Calculation of the cost of bank guarantees
The cost of a bank guarantee usually does not exceed five percent of the amount inherent in the order. The company that wins the tender is obliged to give guarantees to the customer that it will definitely fulfill the conditions proposed by the contract. The bank will have to pay monetary compensation to the customer based on the data in this document. If the person authorized to perform the contract violates at least one point set out in the contract, or does not provide a product or service of high quality, then payment of compensation is inevitable. The amount of the bank guarantee that the bank provides upon fulfillment of contract obligations must be equal to ten percent of the expected order.
The guarantee, which is given in the event that the advance must be returned, is necessary in cases where the person who makes the order has not fully paid for the work of the performer, but has only contributed a certain amount. In this case, the guarantee carries protective functions for the customer, who will be reliably protected from dubious persons authorized to execute the order. Such individuals can spend the amount of the down payment to fulfill their needs, so the guarantee will protect clients from such scams. Then the bank is obliged to return all the money to the customer. The down payment can range from twenty to thirty percent of the cost of the total order amount.
Another important factor influencing how much a bank guarantee costs is the presence or absence of collateral. The guarantor bank is seriously interested in the return of issued funds that the beneficiary received due to improper performance of obligations under the contract. Of course, the lack of collateral immediately increases the tariffs for the guarantee to cover possible risks and increases the commission of the credit institution. Generally speaking, as a rule, a guarantee without collateral costs almost twice as much.
Typically, the bank's final payment under the guarantee is preferable to receiving bank loans. Since guarantees do not have a specific rate, the principal (a party to market relations that operates at its own expense) has the opportunity to pay an amount that will be sufficient to obtain the guarantee. The commission for issuing this financial instrument is highly differentiated for both large and small transactions, so market players can use it with maximum efficiency for themselves. This also applies large organizations, and representatives of small and medium-sized businesses.
Below is a fragment of an informational video about the price of bank guarantees
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Cost calculation mechanism using a specific example
Let’s say the total amount of the government order is 12 million rubles, and the amount of the collateral (security) is set at 30% of this amount. The order takes 1 year to complete. Bank guarantee rates, as stated above, can range from 2% to 10% of the order amount. For calculations, we will set the average value to 6%.
We determine interest on a bank guarantee as follows:
12,000,000 x 30% x 6% x 1 = 216,000 rubles.
Thus, upon receipt of an order worth 12 million rubles, the remuneration under the bank guarantee will be 216 thousand rubles. Considering the size of the order, this price is very reasonable and profitable.