of January 27, 2010 No. HK-21-54/845
The Tax Committee of the Ministry of Finance of the Republic of Kazakhstan, concerning the taxation of the borrowed funds (financial aid) received from the founder reports the following.
According to Item 1 of article 85 of the Code of the Republic of Kazakhstan of December 10, 2008 «About taxes and other obligatory payments the budget» (further - the Tax code) in gross annual income joins all income types of the taxpayer.
According to Item 1 of Article 715 of the Civil code of the Republic of Kazakhstan (further - group of companies), according to the loan agreement one party (creditor) transfers, and in the cases provided by the Civil Code or the agreement shall transfer to the possession (economic maintaining, operational management) to other party (borrower) the money or things determined by patrimonial signs, and the borrower shall return timely to the creditor the same amount of money or equal quantity of things of the same sort and quality.
According to article 96 of the Tax Code the cost of any property, including works and services received by the taxpayer gratuitously is its income.
If other is not established by the Tax code, cost gratuitously of the received property, including works and services, is determined according to International Financial Reporting Standards and requirements of the legislation of the Republic of Kazakhstan about financial accounting and the financial reporting.
According to Item 2 of article 13 of the Law of the Republic of Kazakhstan of February 28, 2007 «About financial accounting and the financial reporting» (further - the Law) the income - increase in economic benefits during the accounting period in the form of inflow or increments of assets or reduction of obligations which lead to the increase in the capital other than the increase connected with fees of persons participating in the capital.
In turn, by Item 1 of the above-stated Article it is determined that the obligation - the existing obligation of the individual entrepreneur or the organization arising from last events which settlement will lead to disposal of the resources containing economic benefits.
Thus, if the amount of non-interest loan is returnable, the borrower has obligation to return to the creditor the same amount of money in time, established by the agreement.
Based on stated, the gross annual income of the receiver of loan joins service cost in the form of free use by loan. At the same time the specified cost is determined according to the legislation of the Republic of Kazakhstan on financial accounting and the financial reporting.
At the same time the amount of the obtained loan is not recognized the income and for tax purposes is not subject to inclusion in gross annual income of the receiver of loan.
At the same time, we note that according to the subitem 7) of Item 2 of article 84 of the Tax Code, for the purpose of the taxation as the income the income arising in connection with recognition of the obligation in financial accounting according to International Financial Reporting Standards and requirements of the legislation of the Republic of Kazakhstan about financial accounting and the financial reporting in the form of positive difference between the size actually subject to obligation fulfillment and the cost of this obligation recognized in financial accounting is not considered.
At the same time we pay your attention that the above does not contradict Article of the expert of the Tax Committee S. Nurmagambetova «The loan obtained from the founder» published in the Bulletin of the Accountant magazine No. 45 for November, 2009 and to the letter of the Tax Committee of October 26, 2006 for No. NK-UM-1-17/9874.
Vice-chairman of the Tax Committee
Ministries of Finance of the Republic of Kazakhstan of T. Botakanov
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