The Supreme Court limited the period of payments on investment collection
Interest on an investment loan issued for financing a business project in exchange for a share from profit cannot be unlimited, the Supreme Court of the Russian Federation (Sun) recognized. If the contract is not established in the contract, the courts need to find out what the parties are focused on, or proceed from the usual conditions of loans in comparable circumstances, the economy college explained. According to lawyers, the main lesson in the solution of the Armed Forces is that the terms of payments on investment collection must clearly indicate in the contract.
The Armed Forces published a decision explaining the nature of the investment loan and the possible conditions under which it can be issued. The highest instance first spoke out of this type of contract. In 2022, IP Alexander Mironin provided a good translator LLC (HP) 2 million rubles. As an investment position to finance a business project for the production and sale of clothing. The loan amount had to be returned until January 15, 2023, and from January 1, 2023, pay interest on the amount of 20% of the net profit of the project (at least 100 thousand rubles) monthly until the exception of the LLC from the Unified State Register of Legal Entities.
The loan amount was returned, but without paying interest. In September 2023, the IP demanded to recover 3.45 million rubles from the CP, including interest, penalty and fine for lack of booby. The arbitration courts of the three instances considered the requirements disproportionate and reduced the amount approximately by half, recovering 700 thousand rubles from the company. interest in January – July 2023 and about 1 million rubles. penalty with a fine. The CP appealed these decisions in the aircraft, considering the terms of the investment collection agreement too burdensome to pay interest up to the moment of liquidation of the company. According to the LLC, the payment of interest should be terminated with the return of the loan amount, and the investor in this case abused his right. The case was referred to the Economic College of the Armed Forces, which canceled all judicial acts.
Mix and limit
The Armed Forces qualified by the parties the investmentzam agreement as mixed and having signs at the same time as a loan and simple partnership agreements. The collegium explained this by the fact that, under the terms of the transaction, the IP not only provided funds on the terms of return, payment and urgency, but invested them in the implementation of the company and shared with it the “risk of non -receipt”, and the company pledged to pay IP part of its profit. At the same time, the Armed Forces allowed the possibility of setting a loan fee in the form of interest tied to the size of the company’s pure revenue, and introduce control over the expenditure of funds by the borrower due to the action of the principle of freedom of the contract.
At the same time, the economy colleague considered the condition of an indefinite period of payment of interest on investment collection by illegal. The essence of the regulation of borrowed relations implies the need to establish a deadline (fixed or determined), within which the loan amount is returned and interest is accrued for use, the Armed Forces explained. If you look from the part of the agreement of a simple partnership, then the participant who is returning the contribution is losing the right to make a profit from activities, the collegium noted.
In the absence of conditions for the period of deferral for the payment of interest and the deadline for their payment, according to the Sun, it is necessary to ask the parties to evidence of the initial plans of the plaintiff’s participation in making a profit from the business project, including the correspondence of the contract. If there are no such evidence, the delay in the payment of interest is defined as a “reasonable period” in the current business practice. To calculate the fee, the BCD proposes to proceed from the usual amount of interest accrued in comparable circumstances during the actual use of the loan amount, as well as the period during which the amount taken would be returned with monthly payments from January 1, 2023 in the amount of 20% of net revenue, but not less than 100 thousand rubles. For the correct qualification of the relations of the parties, the economic purpose of the contract and calculation of interest, the case is aimed at a new consideration.
The risk of fuzzy formulations
Partner « Melling, Login and Partners » Pavel Novikov says that investmentzams are used as an alternative to bank lending. “Especially often, novice entrepreneurs resort to such loans, since banks are reluctant to credit newly created enterprises due to high risks of non-return of loans,” Forward Legal lawyer Roman Gusak explains. This is a good format when one partner has a business idea, and the second has a means for its development, adds the senior partner of AB « Line Law » Alexei Kostovarov: « The first gets the opportunity to start a business, and the second-the opportunity to get increased profitability if the project » takes off « . »
It follows from the decision of the Armed Forces that in the investment loan agreements in the percentage period there should be at least the minimum certainty (a specific period or a measurable indicator, the achievement of which stops the borrower’s obligation), Roman Gusak notes, otherwise it is necessary to proceed from the customs of business turnover. But in any case, the payment of interest on the investment base should be limited in time and cannot replace corporate rights to make a profit from the company’s activities, says Mr. Novikov. The receipt of dividends is not limited to term, but they are paid only if the company has profit from the company, in contrast to them, interest on investment basias should be paid in any case, the lawyer of KA Yukov and Partners Julia Shumaeva indicates.
Most lawyers agree with the position of the Armed Forces about the need to clear the term of interest of interest on investment and the inadmissibility of the conditions for payments throughout the entire period of the business project. Meanwhile, Mr. Kostovarov believes that such an approach does not always meet the needs of civil circulation: “Providing funds for investment collection, the person counts on participation in profit from the whole business, which would simply not have been without its financing, and this is a completely understandable business model.” Nevertheless, the conclusion from the decision of the aircraft is such – it is necessary to clearly determine the term of interest payment in the investmentzam contract, otherwise only minimal return will be guaranteed to the lender, Aleksey Kostovarov concludes.
