Writing off contractual penalties per year. Assistance of a lawyer in disputes about the calculation of a penalty to a contractor under a government contract. Writing off penalties - how it all began

When a supplier violates the terms of the contract or delays performance, he will be charged a forfeit. Fines are charged for violation of any conditions other than deadlines, and penalties for violation of deadlines. Forfeit is fines and penalties combined. According to the new Government Decree of 04.07.2018 No. 783, part of the penalties can be written off. But only under certain conditions. What are these conditions - read below.

Calculation of a penalty to the supplier under 44-FZ, which can be written off

If the amount of the supplier's penalty exceeds 5 percent, it can be partially written off. But only if its limit does not go beyond the 20 percent threshold of the contract price. If the amount of the forfeit is in the range from 5 to 20 percent of the contract price, you can write off half of the amount. But only on condition that the supplier has already paid half of the charged penalty by January 1, 2017.

For example, the contract price is 1,000,000 rubles. The contract was fully executed in 2016. The amount of the forfeit that the customer has charged to the supplier is 180,000 rubles. The supplier paid 90,000 rubles in November 2016. The total amount of the forfeit is more than a 5 percent mark, but does not exceed a 20 percent threshold. The supplier paid half of the accrued penalty by January 1, 2017. This means that you can write off to the supplier half that remained unpaid, namely - 90,000 rubles. Use the calculator to calculate the penalty for 44-FZ

Instructions on how to write off penalties to suppliers in 5 stages

Waiting for payment can last for years, the reason is simple - the supplier does not want to lose money and will by all means prove that he is late through no fault of his own. And now the controller is pulling you - the penalty has been charged, and why hasn't it been paid? He will check how you carried out the claim work and ask what prevents you from recovering money in court. We'll have to carry out pre-trial work and go to court. But now the government has made your job a little easier - now you can write off some of your suppliers' debts for 2015-2016, and not sue them. Read what debts can be forgiven and how to do it in five steps.

When it is impossible to write off penalties under contracts of 2015-2016

One more condition, without which it is impossible to write off the penalty to the supplier: the supplier must agree with this penalty. That is, if the supplier, at the time when it would be possible to write off the forfeit, is in litigation with the customer or does not admit that it has fulfilled its obligations under the contract with violations, such a supplier cannot be written off the forfeit.

If there is no document in which both parties to the contract would recognize the existence of a forfeit, you cannot write off the forfeit. If the amount is more than 20 percent of the contract price, the penalty cannot be written off. If the contract was concluded, but the obligations under it were not fulfilled in full, it also cannot be written off. If the terms of the contract changed and additional agreements were concluded on the price, quantity or timing, the penalty cannot be written off.

☆ At what stage of the purchase should the customer remember about the supplier's forfeit?
☆ Who should pay first - the customer first under the contract or the supplier first for the penalty?
☆ Is it possible to withhold a penalty from contract security?
☆ Is it permissible, apart from forfeit, to recover from the contractor losses that caused the customer to violate the contract?

How to write off a penalty to a supplier

To write off the forfeit - create a special commission for the receipt and disposal of assets. At the meeting of the commission, determine how many and to whom of the suppliers you intend to write off. Make a collegial decision. Record it in documentary form. Name the document “a decision to write off a forfeit”.

After you have decided who and how much to write off - transfer the information to the performers in the accounting department. They must make the necessary entries in the accounting software they are using. This must be done within five days from the date the commission made a decision.

After the technical part is over, you need to please the supplier that part of his debts has been forgiven. To do this, send him a notification. Indicate how much was written off, the details of the contract under which the write-off took place. Letter - a notification must be sent within 20 days from the day the decision was made to write off. For the notification form, see the annex to the resolution dated 04.07.2018 No. 783. Notify the administrator of budget revenues about the fact of writing off, unless you yourself are an administrator.

Attached files

• The decision to write off the penalty.pdf

The amounts of penalties (penalties, fines) accrued to the supplier (performer, contractor), but not written off by the customer due to non-performance (improper performance) of the obligations provided for by the contract in 2015 and / or 2016, are subject to write-off on the basis of. Debit rules these amounts are set out in detail in the text of the Decree of the Government of the Russian Federation of 04.07.2019 No. 783. Let's find out how to properly write off forfeits.

Writing off penalties - how it all began

State (municipal) contract Is an agreement that was concluded by a state or municipal customer in order to meet state or municipal needs on behalf of Russian Federation, subject of the Russian Federation (state), municipal formation (municipal) (Article 3 of Federal Law No. 44-FZ). The contract can be concluded:

• in writing (by general rule);
• orally, subject to the conditions and procedures established by the Civil Code of the Russian Federation, and only in cases established by the provisions of clauses 4, 15, 28 h. 1 of Art. 93 of Federal Law No. 44-FZ.

The contract can be concluded on the conditions that are provided for (part 1 of article 34 of Federal Law No. 44-FZ):

• a notice of the purchase;
• an invitation to take part in the selection of an executor, contractor, supplier;
• application;
• procurement documentation;
• the final proposal of the procurement participant, in which it was decided to conclude a contract.

In the contract in mandatory the conditions for the procurement specified in the text of Federal Law No. 44-FZ must be provided. In particular, the contract must contain a clause about the liability of the supplier and the customer for non-performance or improper performance of the obligations specified in the contract. So. The supplier, performer or contractor have the right to demand from the customer the payment of a forfeit (penalty, fine) if the latter has delayed the performance of his obligations stipulated in the contract (or fulfilled his obligations improperly) (part 5 of article 34 of Law No. 44-FZ) ...

Forfeit (penalty, fine) - the amount of money (established by the contract or by law) that the creditor will pay in case of delay in the fulfillment of his obligations, as well as in case of non-fulfillment (improper fulfillment) of the obligations stipulated in the contract. Keep in mind the following points:

• According to the instructions of Art. 331 of the Civil Code of the Russian Federation, an agreement on a penalty is drawn up in writing, otherwise it is invalidated.
• According to paragraph 1 of Art. 330 of the Civil Code of the Russian Federation, the creditor is not obliged to prove the infliction of losses on him upon the claim for payment of the penalty.

Until September 9, 2017, the amount of the forfeit was established on the basis of the Rules approved by the Decree of the Government of the Russian Federation of November 25, 2013 No. 1063.

Important! From September 9, 2017, the amount of the forfeit shall be calculated in accordance with the Rules for determining the amount of the fine accrued in the event of improper performance by the customer, non-performance or improper performance by the supplier of the obligations stipulated by the contract, and the amount of penalties accrued for every day of delay in performance by the supplier of the obligation under the contract.

Until January 1, 2017, as an anti-crisis measure, it was envisaged that in 2015-2016, the customer provides a deferral for the payment of penalties (penalties, fines) and / or writes off the accrued amounts in cases established by the Government of the Russian Federation (Federal Law dated December 29, 2015 No. 390- Federal Law "On amendments to the Federal Law" On the contractual system in the field of procurement ... ").

The government of the Russian Federation ordered to write off penalties in the manner established by the Ministry of Finance of the Russian Federation in relation to the supplier's debts accepted for accounting, regardless of the date of its occurrence (Resolution No. 190 of March 14, 2016 - became invalid on January 1, 2017).

In order for customers to have the opportunity to write off penalties (debts under state and municipal contracts) that appeared in 2015-2016, in part 42.1 of Art. 112 of the Federal Law of 05.04.2013 No. 44-FZ (which entered into force on April 4, 2019) stipulates that the amounts of penalties are to be written off in the manner and in the cases established by the Government of the Russian Federation (i.e., according to Rules No. 783).

In what order is the cancellation of penalties carried out?

It is allowed to write off penalties that have been accrued but have not been paid if it is a question of contracts, the obligations under which are fulfilled in full, but with the exception of contracts under which the terms of the contract performance (contract price, unit cost , the number of goods, the volume of services and works) were changed by agreement of the parties in 2015-2016 (clause 2 of Regulation No. 783). According to Part 1.1 of Art. 95 of Law No. 44-FZ (expired), in 2015-2016 it was allowed to change the terms of contracts.

Important! It is allowed to write off penalties (penalties, fines) only if they are not disputed by the contractor, contractor or supplier.

1. If the total amount of penalties (penalties, fines) turns out to be more than 5% of the contract price (but does not exceed 20%), the customer is allowed to write off 50% of the penalties, if 50% of such amounts were paid before January 1, 2017.
2. If the amount of penalties is not more than 5% of the contract price, the customer can write them off completely.

The basis for making a decision to write off penalties (penalties, fines) may be:

The decision to write off is made by a special commission for the receipt and disposal of assets, after which it is drawn up by an order (order) of the customer. The decision is made within 10 days from the date of reconciliation of settlements with the supplier. In this case, the order must contain the following information:

• name, company name, location (for organizations);
• Full name, place of registration (for an individual);
• Supplier's TIN (similar to the supplier's TIN - for a foreign entity);
• KPP supplier (or TIN of an individual);
• information on the amount of the forfeit included in the register of contracts concluded by customers;
• set out in clause 7 of the Instructions for the application of the Unified Chart of Accounts accounting for government bodies, local government bodies, governing bodies of state extra-budgetary funds, state academies of sciences, state institutions (approved by Order of the Ministry of Finance of the Russian Federation of 01.12.2010 No. 157n) obligatory details primary documents;
• the date of the decision to write off non-standing stocks;
• signatures of all members of the commission.

Penalties are written off within 5 working days from the date of the decision to write off. If the customer does not exercise the powers of the administrator of budget revenues, he, no later than 3 working days after the debiting of the amounts, must send information about the debiting to the administrator of incomes. In this case, it is necessary to report the written off amount, the code of classification of budget income budgetary system RF. Within 20 working days from the date of the decision to write off penalties, the counterparty is sent a notice of writing off the debt indicating its size.

Project dossier

Explanatory note

In accordance with part 43 of article 112 of the Federal Law "On the contract system in the procurement of goods, works, services to meet state and municipal needs", the Government of the Russian Federation decides:

1. Establish that customers write off the amounts of penalties (fines, penalties) accrued in 2015 and (or) 2016, if the supplier (contractor, performer) has completed in full in 2015 or 2016 all obligations stipulated by the contract, with the exception of warranty obligations.

2. Writing off the accrued amounts of forfeits (fines, penalties) specified in clause 1 of this resolution is carried out under contracts, obligations under which are fulfilled in full, with the exception of contracts, the terms of which were changed in 2015 and (or) 2016 in accordance with part 1.1 article 95 of the Federal Law "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" (as amended by the Federal Law of December 29, 2015 N 390-FZ "On Amendments to the Federal Law" On the contract system in the field purchases of goods, works, services to meet state and municipal needs ").

3. Writing off the amounts of penalties (fines, penalties) accrued in 2015 and (or) 2016 are carried out by the customer in the following order:

a) if the total amount of unpaid penalties (fines, penalties) does not exceed 5 percent of the contract price, the customer writes off the unpaid amounts of penalties (fines, penalties);

b) if the total amount of unpaid penalties (fines, penalties) exceeds 5 percent of the contract price, but does not exceed 20 percent of the contract price, the customer writes off 50 percent of the unpaid amounts of penalties (fines, penalties), provided that 50 percent of the unpaid amounts of penalties (fines) are paid , penalty interest) until the end of 2016.

4. The customer notifies the supplier (contractor, performer) in writing about the write-off of the accrued amounts of penalties (fines, penalties).

5. Writing off the amounts of penalties (fines, penalties) accrued in 2015 and (or) 2016 in accordance with paragraph 3 of this resolution applies to the debt of the supplier (contractor, contractor) taken into account, regardless of the date of its occurrence and is carried out by writing off the account of the debt suppliers (contractors, performers) monetary obligations to a customer making purchases to meet federal needs, the needs of a constituent entity of the Russian Federation and municipal needs, in accordance with the procedure established by the relevant financial body.

Document overview

It is planned to establish that customers write off accrued in 2015 and (or) 2016. the amount of forfeits (fines, penalties), if the supplier (contractor, performer) fulfilled all obligations stipulated by the contract, with the exception of the warranty, in full in 2015 or 2016.

Determine the write-off procedure. So, if the total amount of unpaid penalties (fines, penalties) does not exceed 5% of the contract price, the unpaid amount will be written off in full. If the unpaid amount is in the range from 5% to 20% of the contract price, then 50% is written off, provided that the remaining 50% of unpaid penalties (fines, penalties) will be paid before the end of 2016.

The total amount of forfeits must not exceed the contract price. Transfer of penalties to the budget under 44-FZ Conducting claim work is not a right, but an obligation of the customer. In each case, the institution is obliged to record the violation and send a claim to the executor. Failure to hold the contractor accountable can be qualified by the regulatory authorities as ineffective spending budget funds... The forfeit collected by the customer is a non-tax budget income and is subject to transfer to the corresponding budget, KBK "Other receipts from monetary penalties and other amounts in compensation for damage" (Letter of the Ministry of Finance dated 17.09.2015 No. 02-08-07 / 53443). Dear readers, if you see an error or typo, help us fix it! To do this, select the error and press the "Ctrl" and "Enter" keys simultaneously.

Table of contents:

• • How does Government Decree No. 190 regulate the procedure for writing off the penalty?
    • On writing off penalties (fines, penalties) under government contracts this year
• On writing off penalties (fines, penalties) under government contracts this year
  • The procedure for writing off penalties under a government contract in 2018
    • Forum of the Institute of Public Procurement (Moscow)
• Forum
• The procedure for writing off penalties under a government contract in 2018

How does Government Decree No. 190 regulate the procedure for writing off the penalty? These rules applied to the supplier's recorded debt, regardless of the date of its formation. By the time this article was written, the considered Resolution No. 190 had already lost its force, i.e.

About writing off the amounts of penalties (fines, penalties) under contracts for 2015-2016.

We will figure out in what cases a fine is levied, and when a penalty is charged, and how a penalty is calculated under a 44-FZ contract in accordance with the new rules in force from 09.09.2017. Concept and legal regulation The concept of forfeit according to 44-FZ, Article 34 and Article 330 of the Civil Code of the Russian Federation are defined as the amount of money that is paid by the party to the contract that has violated its obligations.

There are two types of forfeit: a fine and a penalty. In accordance with the provisions of Article 34 of Law 44-FZ, the agreement must include the rules governing the withholding of penalties from the amount of the 44-FZ contract. A fine is a fixed amount of money determined by the contract and collected in case of non-fulfillment (improper fulfillment) of obligations, except for delay.

Penalty interest is calculated in case of delay and represents a certain percentage of the value of the outstanding obligations, multiplied by the number of days of delay.

How not to run into a 44-fz fine

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The President of the Russian Federation signed a law on the write-off of penalties of suppliers under government contracts

Attention

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The authorized bodies regularly monitor the sites located in the United information system information, as well as analyze the feasibility, validity and effectiveness of government procurement procedures conducted by institutions (part 1 of Art. 97 44-FZ). To avoid the penalty for the procurement plan and the schedule, the responsible persons of the contracting organization must monitor not only the correctness of the planning documents, but also the observance of the regulated terms of their placement.

Moreover, changes and additions to the planning documentation should be promptly reflected and published in the Unified Information System. IMPORTANT! If the PP or PG includes orders that do not meet the goals and requirements of the current legislation, expect a fine of up to 50,000 rubles.

Penalty table for 44-fz

Example 4. Collecting a penalty on a bank guarantee 44-FZ. The position of the courts and regulatory authorities is contradictory (Resolution of the Arbitration Court of the Vologo-Vyatka District of March 28, 2016 in case No. A38-4251 / 2015, Letter of the Ministry of Economic Development of Russia No. D28i-416 dated February 15, 2016).

It seems that in the event that a security for the obligation to pay a penalty is prescribed in the bank guarantee, and the contractor refuses to fulfill it, the customer has the right to present such a demand to the guarantor bank. How the penalty for the customer is calculated The resolution on fines and penalties under 44-FZ dated 08/30/2017 regulates the procedure for determining the sanctions both to the customer and to the contractor.
The amount of penalties to the customer is calculated in accordance with Part 5 of Art. 34 according to the formula: Amount of interest \u003d 1/300 × Size of the refinancing rate as of the date of accrual of interest × Amount of unpaid amount × Number of days of delay.
Registered: 13 Jan 2018, 13:37 I also imagine a situation in which the right to claim, even de jure, appeared, but the Customer does not yet have a mechanism for fulfilling his duties. Joined: 11 Oct 2010, 12:28 pm Time zone: UTC + 3 hours [Summer Time] Users browsing this forum: Fossa and guests: 20 You cannot reply to messages You cannot edit your posts You cannot delete your posts You cannot you can add attachments Good afternoon, I have a question about writing off penalties according to the Decree of the Government of the Russian Federation of 03/14/2018 No. 190 The contract was closed on December 29, paid to us on December 30.
There was a delay in the contract for a couple of days. The customer imposed a forfeit in February 2018. We wrote a letter to write off the forfeit based on the ruling above. But the customer replied that he would not write off, since the order became invalid on January 1, 2018.

Writing off 44 ap fines in 2018

Writing off fines under 44 FZ in 2018

On the contract system ... "dated 05.04.2013 No. 44-FZ. IMPORTANT! For the application of the aforementioned provisions, the deadline for execution agreed in the terms of the contract is not important, i.e. On writing off penalties (fines, penalties) under government contracts this year Write-off occurs in the following cases.

Important

First - if the total amount of outstanding debt does not exceed 5% of the contract price. The second - if it is from 5% to 20% of the contract price and until the end of 2018.

" № 4/2016

The government of the Russian Federation extended the period during which penalties accrued under contracts are written off for another year and suppliers (contractors, performers) are actually released from the obligation to pay them. The past year made it possible to understand many of the nuances of applying this anti-crisis measure. Details are in the article.

Step-by-step instruction

Decree of the Government of the Russian Federation of March 14, 2016 No. 190 (hereinafter referred to as Resolution No. 190, new resolution) established the cases and procedure for the customer in 2016 to provide a deferral of payment of penalties (fines, penalties) and (or) write off the accrued amounts of penalties (fines, penalties) ... A similar document was in force in 2015 (Decree of the Government of the Russian Federation of 03/05/2015 No. 196), and, as practice shows, suppliers (contractors, performers) were able to take advantage of these anti-crisis measures, the most important of which, of course, is the cancellation of debts for penalties.

The validity period of the new regulation is limited on 01.01.2017. Therefore, it is inappropriate for construction companies to drag out the time, but measures should be taken to relieve themselves of the obligation to pay forfeits accrued under state and municipal contracts, or, as an option, to obtain a temporary respite in the form of a delay in debt repayment. What needs to be done?

Firstly, Resolution No. 190 establishes that customers provide a deferral and write off accrued penalties only if the supplier (contractor, performer) has completed in full in 2015 or 2016 all obligations stipulated by the contract, with the exception of warranty obligations. therefore it is important for construction organizations to make every possible effort to complete work in this year and timely execution in the prescribed manner of documents (acts) confirming the acceptance and transfer of the results of work.

note

The accrued amounts of penalties are not written off under contracts the terms of which were changed in 2015 and (or) 2016 in accordance with Part 1.1 of Art. 95 of Federal Law No. 44-FZ. The cases and procedure for changing the terms of contracts are determined by the Decree of the Government of the Russian Federation No. 191 dated March 14, 2016.

Secondly, the provision of a deferred payment and the write-off of the accrued penalties are carried out by the customer in a certain order, which is presented in the following diagram.

As you can see, the order of the customer's actions is made dependent on the amount of the forfeit, which, obviously, must be confirmed. Hence, construction companies and customers need to reconcile the amounts of debts and sign reconciliation acts.

Thirdly, in the case when the total amount of unpaid penalties is in the range "over 5%, but not more than 20% of the contract price", there is a choice of one of the two options provided by the Government of the Russian Federation: get a deferral or use the write-off of half of the forfeits. In this way, the construction organization needs to agree on a specific option with the customer... Finally, 50% of debts are written off only after the organization transfers half of the forfeit amount. therefore it is necessary to find the appropriate amount of funds, transfer it to the account specified by the customer and notify the latter about payment.

Fourth, the fact of granting a deferral and writing off the accrued penalties must be certified. Clause 4 of Resolution No. 190 obliges the customer to send a written notification to the supplier (contractor, performer). Respectively, the organization needs to monitor the receipt of such notification in relation to the respective amounts due and contracts.

Explanations of specialists

Writing off debts for penalties and granting deferrals for their payment is not a right, but an obligation of customers, provided that there are all required documents (acts of acceptance and delivery of results of work, acts of reconciliation, etc.). This conclusion follows from the letters of the Ministry of Economic Development of Russia dated February 17, 2016 No. D28i-350, dated 25.11.2015 No. D28i-3373, dated 03.07.2015 No. D28i-1941, dated 22.06.2015 No. D28i-1815 (all of the above letters, as well as others , to which we will refer below, were issued in relation to the Decree of the Government of the Russian Federation No. 196. However, since the new decree was adopted not in order to change the new procedure for writing off debts (granting deferrals), but to extend the anti-crisis measures, the explanations remain relevant in relation to 2016 ).

Postponement of payment and cancellation of debts for penalties are permissible only if the supplier (contractor, performer) fulfills all obligations stipulated by the contract. Accordingly, if the contract is terminated by agreement of the parties, the adoption of these measures is impossible (Letter of the Ministry of Economic Development of Russia dated July 21, 2015 No. D28i-2194).

The measures in question are not applied to outstanding contractual obligations. This is reported in the Letter of the Ministry of Economic Development of Russia dated December 21, 2015 No. D28i-3764. It also implies that there is no deferral, no write-off is made if the forfeit is charged under a contract, which is due in 2017.

In accordance with the position expressed in the letters of the Ministry of Economic Development of Russia dated December 21, 2015 No. D28i-3667 and dated October 2, 2015 No. OG-D28-13057, the RF Government decree applies to all contracts executed by the supplier (contractor, performer) in full in 2015 and 2016, regardless of the term of the debt. Thus, the date of the conclusion of the contract and the day when the organization began to perform duties, for example, to carry out work, does not matter. It is important that their completion dates be in 2015 and 2016.

Also, the Ministry of Economic Development and Trade has repeatedly emphasized that the right to defer payment and write-off of debt is not dependent on the terms of performance of obligations stipulated by the terms of contracts (except for warranty obligations) (letters dated 09.21.2015 No. OG-D28-12386 and dated 09.10.2015 No. D28- 2737). The actual date of completion of the fulfillment of obligations is important.

note

Unpaid debt is subject to write-off. If the supplier (contractor, performer) made payment for the accrued penalties, the decision to write off it is not made, cash organizations are not returned (Letter of the Ministry of Finance of Russia dated October 27, 2015 No. 02-02-04 / 61548).

If the terms of the contract provide for the stages of its execution, the supplier (contractor, performer) has the right to demand a delay in the payment and write-off of the debt only after the fulfillment of all the stages established by the contract (Letter of the Ministry of Economic Development of Russia dated 20.08.2015 No. D28i-2553).

The norms of the Federal Law No. 44-FZ and the decrees of the Government of the Russian Federation do not oblige state (municipal) customers to include provisions on deferring the payment of penalties (fines, penalties) in the documentation on the purchase of goods (works, services) and the draft contract. This is indicated, in particular, in the decisions of the FAS Russia of 02.12.2015 in case No. K-1657/15 and of 16.11.2015 in case No. K-1539/15. The decision to grant a deferral of payment and write-off of debt:

• is accepted regardless of the presence of the corresponding clause in the contract (Letter of the Ministry of Economic Development of Russia dated 04.06.2015 No. D28i-3869);
• does not require changes to the contract (Letter of the Ministry of Economic Development of Russia dated 01.07.2015 No. D28i-1842).

Arbitrage practice

Despite the fact that the anti-crisis measure in the form of writing off penalties was introduced only a year ago, at the moment there are already court decisions on this topic. Let's look at some of them in order to understand how the arbitrators interpret the provisions of the normative documents.

Resolution of the CA ZSO dated January 22, 2016 No. F04-28134 / 2015 in case No. A46-3302 / 2015

The municipal customer went to court with a demand to recover from the developer a forfeit calculated in connection with the violation of the deadline for the transfer of apartments under municipal contracts. The customer justified the impossibility of writing off the forfeit by the fact that the deadline established by the contracts falls on 2014, and the resolution of the Government of the Russian Federation providing for the cancellation of fines and penalties was adopted in 2015.

The arbitrators made several important lessons that can be taken into account. Firstly, the term for its completion agreed in the contract does not matter, the actual term for fulfilling obligations is important. Once the developer handed over the apartments in 2015, he has the right to count on writing off penalties.

Secondly, the cancellation of the penalty is the responsibility of the customer, not his right.

Third, if an organization has several contracts and some or all of them are overdue, the thresholds (5% and 20%) apply to each contract.

As a result, the court reduced the amount of the penalty from 14 million to 836 thousand rubles. The developer was obliged to pay a penalty only for contracts completed in 2014, and the penalty for contracts completed in 2015 was completely written off, since the amount of penalties for each municipal contract did not exceed 5% of the contract price. The argument of the municipal customer that the court did not have the right to write off the penalty on its own initiative was declared unfounded.

Resolution of the AS PO dated 11.03.2016 No. F06-6317 / 2016 in case No. A06-4184 / 2015

State state-financed organization health care asked to recover a penalty from the contractor. It explained the impossibility of writing it off by the fact that the deadline for the delivery of work established by the contract was repeatedly violated, postponed, the final agreed date was November 2014.

Taking the side of the contractor, the arbitrators indicated: the work was completed and handed over to the customer in 2015, therefore, they are subject to anti-crisis measures. The amount of forfeit does not exceed 5% of the contract price. The cancellation of the penalty is the responsibility of the customer, not his right.

Resolution of the AS SKO dated January 20, 2016 No. F08-10093 / 2015 in case No. A32-23141 / 2015

The arbitrators decided: the accrued forfeit exceeds 20% of the contract price, therefore it is impossible to write off the forfeit in accordance with the procedure stipulated by the Government of the Russian Federation. However, the organization is not deprived of the right to declare the application of the provisions of Art. 333 "Reduction of forfeit" of the Civil Code of the Russian Federation. On the basis of this article, the court may reduce the penalty if its amount is clearly disproportionate to the consequences of the violation of the obligation.

As a result, the amount claimed by the customer was reduced.

Resolution of the Ninth Arbitration Court of Appeal dated January 26, 2016 No. 09AP-57017/2015 in case No. A40-2134 / 2015

The court refused to write off the penalty to the contractor, noting that the resolution of the Government of the Russian Federation was adopted in accordance with Federal Law No. 44-FZ, while in in this case the contract is concluded in accordance with Federal law dated 18.07.2011 No. 223-FZ "On the procurement of goods, works, services by certain types of legal entities."

Accounting

As a general rule, the penalties accrued to the organization are reflected in other expenses (according to the debit of account 91-2) as of the date of entry into force of the court decision on their collection or recognition of the debt by this organization (clauses 11 and 14.2 of PBU 10/99 "Organization expenses"). The signing of the reconciliation act with the customer means that the debt for the forfeit is recognized, therefore, the construction organization is obliged to reflect the forfeit by wiring Debit 91-2 Credit.

If the organization, by virtue of the requirements of PBU 8/2010 "Estimated liabilities, contingent liabilities and contingent assets "accrued in relation to forthcoming expenses for the payment of forfeits, as of the date of signing the reconciliation act, the amount of the forfeit (corresponding) is reflected in the correspondence with the account of the reserve for future expenses. In other words, the accountant will make the entry Debit Credit.

Receipt from the customer of a notice of writing off a debt under a penalty is the basis for recognizing this amount as part of other income of the organization (clause 7 of PBU 9/99 "Income of the organization"). The record is made Debit Credit 91-1... If the dispute on the write-off of the forfeit is resolved in court, the income is recorded as of the date of entry into force of the court decision.

Income tax

For the purposes of taxation of profits, the amounts of penalties recognized (awarded by the court) are taken into account as part of non-operating expenses (subparagraph 13 of paragraph 1 of article 265 of the Tax Code of the Russian Federation). The amount written off by the customer or the court is included in the non-operating income of the organization (clause 18 of article 250 of the Tax Code of the Russian Federation). Thus, even if the penalty is written off in full, the organization will not be obliged to calculate income tax on the amount written off.

We especially note that the organization will not be able to avoid including the written off debt in, referring to paragraphs. 21 p. 1 of Art. 251 of the Tax Code of the Russian Federation. The fact is that, as the Ministry of Finance explained in Letter No. 03-03-10 / 59910 dated November 25, 2014, the provisions of the said rule apply only to the amounts payable of the taxpayer for the payment of taxes and fees, penalties and fines to the budgets of different levels, for the payment contributions, penalties and fines to state budgets extrabudgetary funds and are not applicable to other types of accounts payable.

Simplified taxation system

Based on a formal reading of paragraph 1 of Art. 346.15 and clause 18 of Art. 250 of the Tax Code of the Russian Federation, the Ministry of Finance has repeatedly stated that the amount of the written off accounts payable is included in the income taken into account when determining the base for single taxpayable in connection with the use of the simplified taxation system (letters dated 07.08.2013 No. 03-11-06 / 2/31883, dated 21.02.2011 No. 03-11-06 / 2/29). The only exception is accounts payable specified in paragraphs. 21 p. 1 of Art. 251 of the Tax Code of the Russian Federation, however, as noted above, this rule applies to taxes and fees. Guided by this approach, tax inspectors may well demand to pay tax on the amount of written off penalties.

At the same time, in our opinion, one should not identify the "creditors" in the form of outstanding debts for goods, works and services and accounts payable in the amount of forfeit accrued under the state (municipal) contract, recognized as a “simplified” in connection with the write-off of this amount. And if we recall that the write-off is carried out as a specially provided for by the state anti-crisis measure aimed at supporting business entities, then the inclusion of the written-off penalty in income and the tax charge on it look very illogical. Therefore, we believe that the "simplified" should not include the written off amount in the income. However, we were unable to find court decisions on this issue.

conclusions

If the supplier (contractor, executor) fulfilled the obligations under the state (municipal) contract in 2015 and 2016, he has the right to count on writing off the penalty or granting a deferral for its payment. In this case, such circumstances as the deadline for completion of the work established by the contract, the date of the conclusion of the contract and the day when the organization began to fulfill its obligations under it do not matter. It is important that the documents confirming the completion of the fulfillment of obligations are properly drawn up, and an act of reconciliation of the debt for the forfeit is signed.

Debt write-off is the responsibility of customers, the failure to fulfill which can be challenged in court.

In the event that the amount of the forfeit exceeds 20% of the contract price, debt cancellation and the provision of a deferral for its payment are not applied. However, by going to court, one can try to prove that the amount of the penalty is clearly disproportionate to the consequences of the violation of the obligation, and ask the arbitrators to reduce it on the basis of Art. 333 of the Civil Code of the Russian Federation.

The recognized and written-off amounts of the forfeit are reflected in accounting as part of other expenses and income, for profit tax purposes - as non-operating expenses and income. The write-off of a forfeit does not result in an obligation to pay income tax. But among the "simplified" the situation is not so clear-cut. Tax authorities may insist on including the written off amount in income, so the taxpayer needs to be prepared to solve the problem in court.

Federal Law of 05.04.2013 No. 44-FZ "On the contract system in the procurement of goods, works, services to meet state and municipal needs."

This condition is contained in paragraphs. "B" clause 4 of the Procedure for writing off by the customer in 2015 the accrued amounts of penalties (penalties, fines) under contracts concluded in order to meet federal needs, approved. By order of the Ministry of Finance of Russia dated June 29, 2015 No. 98n. This condition is planned to be retained for 2016, which follows from the draft of a new order prepared by the Ministry of Finance, posted on the website http://regulation.gov.ru.

Let us remind you that the Ministry of Economic Development has a similar opinion, as mentioned above.

And on this issue the positions of the Ministry of Economic Development and the judges coincide.