Write-off of penalty 44 fz. Assistance from a lawyer in disputes regarding the accrual of penalties to a contractor under a government contract. Where it all started

" № 4/2016

The Government of the Russian Federation has extended for another year the period during which penalties accrued under contracts are written off and suppliers (contractors, performers) are actually released from the obligation to pay them. The past year has 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 dated March 14, 2016 No. 190 (hereinafter referred to as Decree No. 190, new resolution) established the cases and procedure for the customer to grant in 2016 a deferment in the payment of penalties (fines, penalties) and (or) writing off accrued amounts of penalties (fines, penalties) . A similar document was in force in 2015 (Resolution of the Government of the Russian Federation dated 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 write-off of debts for penalties.

The validity period of the new resolution is limited to 01/01/2017. Therefore, it is not advisable for construction organizations to delay time, but should take measures to relieve themselves of the obligation to pay penalties accrued under state and municipal contracts, or, as an option, to obtain a temporary respite in the form of a deferment of debt repayment. What needs to be done?

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

note

The accrued amounts of penalties are not written off for contracts whose terms 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 Decree of the Government of the Russian Federation dated March 14, 2016 No. 191.

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

As we see, the order of the customer’s actions is made dependent on the amount of the penalty, which, obviously, must be confirmed. Hence, construction organizations and customers need to reconcile debt amounts and sign reconciliation reports.

Thirdly, in the case when total amount unpaid penalties are in the range of “over 5%, but not more than 20% of the contract price”, you can choose one of two options provided by the Government of the Russian Federation: receive a deferment or take advantage of writing off half of the penalties. Thus, the construction organization needs to agree on a specific option with the customer. Finally, 50% of debts are written off only after the organization has transferred half of the amount of penalties. That's why it is necessary to find the appropriate amount of funds, transfer it to the account specified by the customer and notify the latter of the payment.

Fourthly, the fact of granting a deferment and writing off accrued amounts of penalties must be certified. Clause 4 of Decree No. 190 obliges the customer to send a written notice to the supplier (contractor, performer). Respectively, the organization needs to monitor receipt of such notification in relation to the corresponding amounts of debts and contracts.

Experts' explanations

Writing off arrears for penalties and providing deferments for their payment are not a right, but an obligation of customers, provided that all Required documents(acts of acceptance and delivery of work results, reconciliation acts, etc.). This conclusion follows from the letters of the Ministry of Economic Development of Russia dated February 17, 2016 No. D28i-350, dated November 25, 2015 No. D28i-3373, dated July 3, 2015 No. D28i-1941, dated June 22, 2015 No. D28i-1815 (all listed letters, as well as others , to which we will refer below, were issued in relation to Government Decree No. 196 of the Russian Federation. However, since the new resolution was adopted not to change the new procedure for writing off debts (providing deferments), but to extend anti-crisis measures, the clarifications remain relevant in relation to 2016 ).

Deferment of payment and write-off of arrears 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 do not apply to unfinished 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 follows from it that a deferment is not granted, and no write-off is made if the penalty is accrued under a contract whose execution date falls in 2017.

In accordance with the position expressed in 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 effect of the resolution of the Government of the Russian Federation applies to all contracts executed by the supplier (contractor, performer) in full in 2015 and 2016, regardless of the period of debt. Thus, the date of conclusion of the contract and the day on which the organization began to perform its duties, for example, to carry out work, do not matter. It is important that their completion dates fall in 2015 and 2016.

Also, the Ministry of Economic Development has repeatedly emphasized that the right to defer payment and write off debt is not made dependent on the terms of fulfillment of obligations stipulated by the terms of the contracts (with the exception of warranty obligations) (letters dated September 21, 2015 No. OG-D28-12386 and dated September 10, 2015 No. D28i- 2737). The actual deadline for completing obligations is important.

note

Unpaid debt is subject to write-off. If the supplier (contractor, performer) has made payment for accrued penalties, the decision to write it off 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 stages of its execution, the supplier (contractor, performer) has the right to demand a deferment of payment and debt write-off only after all stages established by the contract have been completed (Letter of the Ministry of Economic Development of Russia dated August 20, 2015 No. D28i-2553).

The norms of Federal Law No. 44-FZ and decrees of the Government of the Russian Federation do not oblige state (municipal) customers to include provisions on deferment of 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 Federal Antimonopoly Service of Russia dated December 2, 2015 in case No. K-1657/15 and dated November 16, 2015 in case No. K-1539/15. Decision to grant deferred payment and write off debt:

is accepted regardless of the presence of a corresponding provision in the contract (Letter of the Ministry of Economic Development of Russia dated 06/04/2015 No. D28i-3869);
does not require amendments to the contract (Letter of the Ministry of Economic Development of Russia dated July 1, 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, this moment already available court decisions on this topic. Let's look at some of them to understand how arbitrators interpret the provisions of regulatory documents.

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

The municipal customer applied to the court with a demand to recover from the developer a penalty accrued 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 penalty by the fact that the period established by the contracts falls on 2014, and the resolution of the Government of the Russian Federation providing for the write-off of fines and penalties was adopted in 2015.

The referees made several important conclusions that can be adopted. Firstly, the deadline for completion agreed in the contract does not matter; the actual deadline for fulfilling obligations is important. Since the developer transferred the apartments in 2015, he has the right to expect penalties to be written off.

Secondly, writing off the penalty is the responsibility of the customer, and not his right.

Thirdly, if the organization has concluded several contracts and there is a delay in all or some of them, threshold values(5 and 20%) apply per contract.

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

Resolution of the AS PO dated March 11, 2016 No. F06-6317/2016 in case No. A06-4184/2015

The state budgetary healthcare institution asked to collect a penalty from the contractor. It explained the impossibility of writing it off by the fact that the deadline established by the contract for the completion of the work was repeatedly violated and 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, and therefore falls under anti-crisis measures. The amount of the penalty does not exceed 5% of the contract price. Writing off the penalty is the responsibility of the customer, and 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 penalty exceeds 20% of the contract price, therefore it is impossible to write off the penalty in accordance with the procedure prescribed by the Government of the Russian Federation. At the same time, the organization is not deprived of the right to declare the application of the provisions of Art. 333 “Reduction of penalties” of the Civil Code of the Russian Federation. Based on this article, the court may reduce the penalty if its amount is clearly disproportionate to the consequences of 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 for the contractor, noting that the resolution of the Government of the Russian Federation was adopted in order to implement Federal Law No. 44-FZ, while in in this case The contract was concluded in accordance with Federal Law No. 223-FZ dated July 18, 2011 “On the procurement of goods, works, services certain types legal entities".

Accounting

By general rule penalties accrued to an organization are reflected as part of other expenses (in the debit of account 91-2) on the date of entry into force of a court decision on their collection or recognition of debt by this organization (clauses 11 and 14.2 of PBU 10/99 “Organization’s Expenses”). Signing a reconciliation report with the customer means that the debt for the penalty is recognized, therefore, the construction organization is obliged to reflect the penalty by posting Debit 91-2 Credit.

If the organization, due to the requirements of PBU 8/2010 “ Estimated liabilities, contingent liabilities And contingent assets» accrued in relation to upcoming expenses for the payment of penalties, on the date of signing the reconciliation report, the amount of the penalty (corresponding) is reflected in correspondence with the account for the reserve for future expenses. In other words, the accountant will make an entry Debit Credit.

Receipt from the customer of a notification about the write-off of debt for a penalty is the basis for recognizing this amount as part of the organization’s other income (clause 7 of PBU 9/99 “Income of the organization”). An entry is made in accounting Debit Credit 91-1. If the dispute about writing off the penalty is resolved in judicial procedure, income is taken into account on the date of entry into force of the court decision.

Income tax

For profit tax purposes, amounts of penalties recognized (awarded by the court) are taken into account as part of non-operating expenses (clause 13, clause 1, article 265 of the Tax Code of the Russian Federation). The amount written off by the customer or the court is included in non-operating income organizations (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 have the obligation to charge 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 clause 1 art. 251 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 this norm apply only to the amounts of the taxpayer’s accounts payable for the payment of taxes and fees, penalties and fines to budgets of different levels, for payment contributions, penalties and fines to the budgets of state extra-budgetary funds and are not subject to application in relation to other types of accounts payable.

Simplified taxation system

Based on the formal reading of paragraph 1 of Art. 346.15 and paragraph 18 of Art. 250 of the Tax Code of the Russian Federation, the Ministry of Finance has repeatedly stated that the amount of written off accounts payable is included in the income taken into account when determining the base for single tax, paid in connection with the application of the simplified tax system (letters dated 08/07/2013 No. 03-11-06/2/31883, dated 02/21/2011 No. 03-11-06/2/29). The only exception is accounts payable specified in paragraphs. 21 clause 1 art. 251 of the Tax Code of the Russian Federation, however, as noted above, this norm applies to taxes and fees. Guided by this approach, tax inspectors They may well be required to pay tax on the amount of penalties written off.

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

conclusions

If the supplier (contractor, performer) fulfilled its obligations under the state (municipal) contract in 2015 and 2016, he has the right to expect the penalty to be written off or to be granted a deferment in its payment. In this case, such circumstances as the deadline for completing the work established by the contract, the date of conclusion of the contract and the day on which 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 completed, and that the reconciliation report for the penalty debt is signed.

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

If the amount of the penalty exceeds 20% of the contract price, writing off the debt and granting a deferment for its payment do not apply. However, by going to court, you 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 Civil Code of the Russian Federation.

Recognized and written off amounts of penalties are reflected in accounting as part of other expenses and income, for profit tax purposes - as non-operating expenses and income. Writing off a penalty does not result in the obligation to pay income tax. But among the “simplified people” the situation is not so clear-cut. Tax authorities may insist on including the written-off amount in income, so the taxpayer must be prepared to resolve the problem in court.

the federal law dated 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs.”

This condition is contained in paragraphs. “b” clause 4 of the Procedure for the customer to write off in 2015 accrued amounts of penalties (penalties, fines) under contracts concluded 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 maintained for 2016, as follows from the draft new order prepared by the Ministry of Finance, posted on the website http://regulation.gov.ru.

Let us recall that the Ministry of Economic Development adheres to a similar opinion, as mentioned above.

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

One of the government's anti-crisis measures for 2016 is the write-off of penalties. That is, penalties accrued under contracts are written off and suppliers (contractors, performers) are actually released from the obligation to pay them. Details are in the article.

In 2015 and 2016, in cases and in the manner determined by the Government of the Russian Federation, the customer provides a deferment in the payment of penalties (fines, penalties) and (or) writes off the accrued amounts of penalties (fines, penalties) (Part 6.1 Article 34 of the Federal Law dated 04/05/2013 No. 44-FZ).

Write-off of penalties under 44-FZ in 2016

The procedure for customers to write off accrued amounts of penalties (fines, penalties) under government contracts in 2016 was approved by Order of the Ministry of Finance of Russia dated April 12, 2016 No. 44n “On the Procedure for the customer to write off accrued amounts of penalties (fines, penalties) in 2016” (came into force on June 6 2016).

During June and subsequent months, the customer can legally write off amounts or provide the supplier with a deferment in the payment of fines, penalties, and penalties.

Interesting explanations from specialists from the Ministry of Economic Development of the Russian Federation

Writing off debts for penalties and providing deferments for their payment are not a right, but an obligation of customers, provided that all the necessary documents are available (acceptance and delivery certificates of work results, reconciliation acts, etc.) (Letters of the Ministry of Economic Development of Russia dated February 17, 2016 No. D28i- 350, dated November 25, 2015 No. D28i-3373, dated July 3, 2015 No. D28i-1941, dated June 22, 2015 No. D28i-1815). Although the Letters were issued in relation to the Decree of the Government of the Russian Federation N 196, they remain relevant in relation to 2016.

The measures in question do not apply to unfinished contractual obligations (Letter of the Ministry of Economic Development of Russia dated December 21, 2015 No. D28i-3764). It follows from this letter that a deferment is not granted and no write-off is made if the penalty is accrued under a contract whose execution date falls in 2017. Thus, the date of conclusion of the contract and the day on which the organization began to perform its duties do not matter, for example , to carry out work. It is important that their completion dates fall in 2015 and 2016.

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

is accepted regardless of the presence of a corresponding provision in the contract (Letter of the Ministry of Economic Development of Russia dated 06/04/2015 No. D28i-3869);
does not require amendments to the contract (Letter of the Ministry of Economic Development of Russia dated July 1, 2015 No. D28i-1842).

If the supplier (contractor, performer) fulfilled the obligations under the state (municipal) contract in 2015 and 2016, he has the right to count on the write-off of the penalty or the provision of a deferment for its payment. In this case, the deadline for completing the work established by the contract, the date of conclusion of the contract and the day on which 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 completed, and that the reconciliation report for the penalty debt is signed.
Debt write-off is the responsibility of customers, failure to comply with which can be challenged in court.
If the amount of the penalty exceeds 20% of the contract price, writing off the debt and granting a deferment for its payment do not apply. However, by going to court, you 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 Civil Code of the Russian Federation.

When the supplier violates the terms of the contract or delays performance, he is assessed a penalty. Fines are assessed for violating any conditions other than deadlines, and penalties are assessed for violating deadlines. Penalties are fines and penalties combined. According to the new Government Decree No. 783 dated July 4, 2018, part of the penalties can be written off. But only under certain conditions. What are these conditions? Read below.

Calculation of penalties for 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 exceed the 20 percent threshold of the contract price. If the amount of the penalty is in the range from 5 to 20 percent of the contract price, half of the amount can be written off. But only on condition that the supplier has already paid half of the accrued penalty before January 1, 2017.

For example, the contract price is 1,000,000 rubles. The contract was fully completed in 2016. The amount of the penalty that the customer accrued to the supplier is 180,000 rubles. The supplier paid 90,000 rubles in November 2016. The total amount of the penalty is more than the 5 percent mark, but does not exceed the 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 the half that remains unpaid, namely 90,000 rubles. Use a calculator to calculate penalties under 44-FZ

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

The wait for payment can last for years, the reason is simple - the supplier does not want to lose money and will do his best to prove that it was not his fault that he was late. And now the controller is tugging at you - a penalty has been charged, but why hasn’t it been paid? He will check how you handled the claim and ask what is preventing you from collecting money in court. You will have to do pre-trial work and go to court. But now the government has made your job a little easier - now you can write off part of your suppliers' debts for 2015–2016, rather than 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 2015-2016.

Another condition without which a penalty cannot be written off to the supplier: the supplier must agree with this penalty. That is, if the supplier, at the time when the penalty could be written off, is in legal proceedings with the customer or does not admit that he fulfilled his obligations under the contract with violations, such a supplier cannot write off the penalty.

If there is no document in which both parties to the contract acknowledge the existence of a penalty, the penalty cannot be written off. If the amount is more than 20 percent of the contract price, the penalty cannot be written off. If a 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 price, quantity or terms, the penalty cannot be written off.

☆ At what stage of the procurement should the customer remember the supplier’s penalty?
☆ Who should pay first - first the customer under the contract or first the supplier for the penalty?
☆ Is it possible to withhold a penalty from securing the performance of a contract?
☆ Is it permissible, in addition to a penalty, to recover from the contractor damages that caused violations under the contract to the customer?

How to write off a penalty to a supplier

To write off the penalty, create a special commission for the receipt and disposal of assets. At the commission meeting, determine how much and to which of the suppliers you intend to write off. Make a collective decision. Record it in documentary form. Call the document “decision to write off the penalty.”

Once you have decided who to write off and how much, transfer the information to the executors in the accounting department. They must make the necessary entries in accounting program which they use. This must be done within five days from the date the commission made its decision.

After the technical part is over, you need to make the supplier happy that part of his debts have been forgiven. To do this, send him a notice. Indicate how much was written off, details of the contract under which the write-off took place. The notification letter must be sent within 20 days from the day the decision to write off was made. For the notification form, see the appendix to Resolution No. 783 dated July 4, 2018. Notify the budget revenue administrator about the fact of the write-off, unless you are the administrator yourself.

Attached files

Decision to write off the penalty.pdf

Decree of the Government of the Russian Federation dated March 14, 2016 No. 190 (hereinafter referred to as Resolution No. 190) determined the rules for writing off penalties and providing a deferment for its repayment in relation to performers and suppliers who completed the full fulfillment of their obligations under the government contract in 2015 or 2016.

The solution option was to be chosen depending on the amount of the unpaid penalty. So, if it was (as a percentage of the cost of the government contract itself):

less than 5%, the customer wrote it off completely;
from 5 to 20%, the customer was obliged to either provide a deferment for its payment until the end of the current financial year, or write off 50% of the debt, provided that the remaining half will be paid before the end of the current fiscal year;
more than 20%, the customer agreed to provide a deferment for its payment until the end of the current fiscal year.

These rules applied to the supplier’s recorded debt, regardless of the date of its formation.

Resolution No. 190 in question at the time of writing of this article has already lost force, since it was valid until 01/01/2017. At the same time, the corresponding clause 6.1 of Art. 34 of the Law “On the Contract System...” dated 04/05/2013 No. 44-FZ.

IMPORTANT! For the application of the mentioned provisions, the period of performance agreed upon in the terms of the contract is not important, since the period of actual performance was assessed (see the resolution of the AS of the West Siberian region dated January 22, 2016 in case No. A46-3302/2015).

Protocol and decision of the commission on writing off the penalty, sample order on writing off

The decision to write off the debt was within the competence of the commission for the receipt and disposal of the customer’s assets. On its basis, the corresponding internal administrative documentation of the customer was subsequently issued (for example, an order or order to write off the penalty).

A sample decision of the commission on writing off the penalty can be downloaded from this link: The commission's decision to write off the penalty is a sample.

Such a decision of the commission should have reflected:

information about unpaid debts recorded in the register of contracts;
mandatory details of primary accounting documentation in accordance with the instructions for the use of the Unified Chart of Accounts, approved. by order of the Ministry of Finance of Russia dated December 1, 2010 No. 157n (see clause 8 of the order of the Ministry of Finance of Russia dated April 12, 2016 No. 44n).

the amount of the penalty to be written off;
the grounds on which such a write-off is made (including reference to the provisions of Resolution No. 190 and the decision of the commission);
list of persons responsible for execution of the order.

A sample document can be found and downloaded at the following link: Order to write off a penalty - sample.

Write-off and payment of penalties in 2018 - 2019

The accrual and payment of penalties in 2018 - 2019 is made in accordance with the requirements of Art. 34 of Law No. 44. The write-off of penalties in 2018 - 2019 according to Law No. 44-FZ was not regulated at the time of publication of this article.

At the same time, the above sample documents can already be used, for example, as templates for developing local documentation in private organizations, etc.

So, the write-off of the penalty not paid by the contractor or supplier under the state contract by the customer in 2016 was carried out according to the rules contained in Resolution No. 190. Write-off of the penalty in this manner was not the right, but the obligation of the customer. From 01/01/2017 this document lost its power.

Amounts of penalties (fines, penalties) accrued to the supplier (contractor, performer), but not written off by the customer in connection with non-fulfillment or improper fulfillment in 2015 and (or) 2016 of the obligations stipulated by the contract, are subject to write-off. The rules for writing off such amounts are established by Decree of the Government of the Russian Federation dated July 4, 2018 No. 783 (hereinafter referred to as Rules No. 783). We will talk about the procedure for writing off the above amounts in the article.

Where did it all start?

By virtue of Art. 3 of Law No. 44-FZ, a state or municipal contract is understood as an agreement concluded on behalf of the Russian Federation, a constituent entity of the Russian Federation (state contract), municipality(municipal contract) by a state or municipal customer to meet state or municipal needs.

As a general rule, contracts must be concluded in writing, however, Law No. 44-FZ provides for the possibility of concluding an agreement with a supplier (contractor, performer) orally in the manner and on the terms established by the Civil Code of the Russian Federation, in cases specified in clauses 4, 15 and 28 hours 1 tbsp. 93 of Law No. 44-FZ.

According to Part 1 of Art. 34 of Law No. 44-FZ, the contract is concluded on the terms stipulated by the notice of procurement or invitation to participate in determining the supplier (contractor, performer), procurement documentation, application, final offer of the procurement participant with whom the contract is concluded, except in cases where such notice or invitation, documentation, application, final offer are not provided.

Law No. 44-FZ provides a list of necessary conditions to be included in the concluded contract. One of the mandatory terms of the contract is the provision on the responsibility of the customer and the supplier (contractor, performer) for non-fulfillment or improper fulfillment of obligations stipulated by the contract.

In accordance with Part 5 of Art. 34 of Law No. 44-FZ, in case of delay in fulfillment by the customer of the obligations established by the contract, as well as in other cases of improper fulfillment of the obligations stipulated by the contract, the supplier (contractor, performer) has the right to demand payment of penalties (fines, penalties).

A penalty (fine, penalty) is recognized as determined by law or contract sum of money, which the debtor is obliged to pay to the creditor in the event of non-fulfillment or improper fulfillment of the obligation, in particular, in case of delay in performance. Upon a request for payment of a penalty, the creditor is not obliged to prove the infliction of losses on him (clause 1 of Article 330 of the Civil Code of the Russian Federation). The agreement on liquidated damages must be in writing. Failure to comply with the written form entails the invalidity of the agreement (Article 331 of the Civil Code of the Russian Federation).

Starting from 09.09.2017, the procedure for determining the amount of the penalty is regulated by the Rules for determining the amount of the fine accrued in the event of improper fulfillment by the customer, non-fulfillment or improper fulfillment by the supplier (contractor, performer) of the obligations stipulated by the contract (except for delay in fulfillment of obligations by the customer, supplier (contractor, performer) , and the amount of the penalty accrued for each day of delay in fulfillment by the supplier (contractor, performer) of the obligation stipulated by the contract, approved by Decree of the Government of the Russian Federation of August 30, 2017 No. 1042. Before this date, one should be guided by the rules approved by Decree of the Government of the Russian Federation of November 25, 2013 No. 1063 .

Federal Law No. 390-FZ dated December 29, 2015 “On amendments to the Federal Law “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” as an anti-crisis measure until January 1, 2017, it was stipulated that in 2015 and 2016, the customer provides a deferment in the payment of penalties (fines, penalties) and (or) writes off the accrued amounts thereof in cases and in the manner determined by the Government of the Russian Federation.

Decree of the Government of the Russian Federation dated March 14, 2016 No. 190 “On the cases and procedure for granting by the customer in 2016 a deferment in the payment of penalties (fines, penalties) and (or) writing off the accrued amounts of penalties (fines, penalties)” (repealed 01/01/2017) provided that the write-off of accrued amounts of penalties (fines, penalties) applies to the debt of the supplier (contractor, performer) accepted for accounting, regardless of the period of its occurrence and is carried out in the manner established by the Ministry of Finance.

In order to provide customers with the opportunity to write off debt under state and municipal contracts that arose in 2015 and (or) 2016, in Part 42.1 of Art. 112 of Law No. 44-FZ (came into force on May 4, 2018) stipulates that the amounts of penalties (fines, penalties) accrued to the supplier (contractor, performer) for non-fulfillment or improper fulfillment of obligations stipulated by the contract, but not written off by the customer, are subject to write-off in cases and procedures determined by the Government of the Russian Federation. As already noted, currently the procedure for writing off accrued amounts of penalties is regulated by Rules No. 783.

In what order is the write-off carried out?

Based on the requirements of paragraph 2 of Rules No. 783, the write-off of accrued and unpaid amounts of penalties (fines, penalties) can be carried out under contracts for which obligations have been fulfilled in full, with the exception of contracts for which in 2015 and (or) 2016 were amended by agreement terms and conditions of the parties regarding the duration of the contract, and (or) the price of the contract, and (or) the price of a unit of goods, work, services, and (or) the quantity of goods, volume of work, services provided for in the contracts. Let us recall that the possibility of changing the terms of contracts in 2015–2016 was provided for in Part 1.1 of Art. 95 of Law No. 44-FZ (lost force on 01/01/2017).

Thus, on the basis of Rules No. 783, only penalties (fines, penalties) that are not disputed by the supplier (contractor, performer) can be written off.

Write-off of accrued and unpaid amounts of penalties (fines, penalties) should be carried out in the following order:

if the total amount of accrued and unpaid penalties (fines, penalties) does not exceed 5% of the contract price, the customer writes them off;

if their total amount exceeds 5% of the contract price, but is no more than 20% of the contract price, the customer writes off 50% of accrued and unpaid penalties (fines, penalties) subject to payment of 50% of such amounts before 01/01/2017.

In this case, the grounds for making a decision to write off the accrued and unpaid amount of penalties (fines, penalties) are:

if the total amount of accrued and unpaid penalties (fines, penalties) does not exceed 5% of the contract price - fulfillment by the supplier (contractor, performer) of obligations (except for warranty obligations) under the contract in full in 2015 or 2016, confirmed by an acceptance certificate or other document ;

if the total amount of accrued and unpaid penalties (fines, penalties) exceeds 5%, but is no more than 20% of the contract price - fulfillment by the supplier (contractor, performer) of obligations under the contract in full in 2015 or 2016, confirmed by an acceptance certificate or other document , as well as information from the budget revenue administrator on the crediting of amounts of penalties (fines, penalties) paid by the supplier (contractor, performer) to the budget (if the accrued and unpaid amount arose to the state (municipal) customer) or information on the crediting of funds paid by the supplier (contractor, contractor) to the account of the customer or autonomous institution (if the accrued and unpaid amount of penalties (fines, penalties) arose to a budgetary institution, state, municipal unitary enterprise, as well as before an autonomous institution if it makes purchases in accordance with Part 4 of Art. 15 of Law No. 44-FZ).

Note that if the customer does not exercise the powers of the administrator of budget revenues received as a result of the application of civil liability measures under the contract in terms of the accrued and unpaid amount of penalties (fines, penalties), then information on the crediting of the amounts of penalties paid by the supplier (contractor, performer) (fines, penalties) are sent to the customer by the budget revenue administrator.

According to clause 4 of Rules No. 783, accrued and unpaid amounts of penalties (fines, penalties) are written off based on the customer’s credentials, which have documentary evidence. In order to write off such amounts, the customer ensures reconciliation of settlements with the supplier (contractor, performer) for accrued and unpaid amounts of penalties (fines, penalties).

Note:

If the supplier (contractor, performer) has not confirmed the existence of an accrued and unpaid amount of penalties (fines, penalties), a decision to write it off is not allowed.

If there are grounds and the above documents, the customer, within 10 days from the date of reconciliation of settlements with the supplier (contractor, performer) for the accrued and unpaid amount of penalties (fines, penalties), draws up a decision to write off this amount. Such a decision must be made by the commission for the receipt and disposal of assets, created by the customer in order to prepare decisions on writing off accrued and unpaid amounts of penalties (fines, penalties), and formalized by an order (instruction) of the customer containing the following information:

The customer writes off accrued and unpaid amounts of penalties (fines, penalties) within five working days from the date of such decision. In this case, the customer, who does not exercise the powers of the administrator of budget revenues received as a result of the application of civil liability measures under the contract in relation to the resulting accrued and unpaid amount of penalties (fines, penalties), no later than three working days after writing off this amount, sends information to the administrator of budget revenues about the written-off, indicating the written-off amount and budget income classification code budget system RF.

No later than 20 working days from the date of the decision to write off the accrued and unpaid amount of penalties (fines, penalties), the customer sends to the counterparty a notice of the write-off of accrued and unpaid debt indicating its amount in the form in accordance with the appendix to Rules No. 783. Such a notice must be formed in accordance with with information and documents included in the register of contracts concluded by customers.

How to reflect it in accounting?

Calculations for amounts of forced seizure (debts for fines, penalties and penalties accrued for violation of the terms of contracts for the supply of goods, performance of work, provision of services) are carried out on account 0 209 00 000 “Settlements for damage and other income” (clause 220 of Instruction No. 157n).

The accrual of income from the amounts of fines, penalties and other sanctions presented for payment, provided for by the terms of the state (municipal) agreement for the needs of a government institution, is reflected in the debit of account 0 209 40 000 and the credit of account 0 401 10 140 “Income from forced seizure”.

Reducing the amount of accrued income (providing discounts, benefits, write-offs), including monetary penalties(fines, penalties, penalties), when making a decision in accordance with the legislation of the Russian Federation to reduce them, with the exception of writing off debt recognized as unrealistic for collection, it is subject to reflection in account 0 401 10 174 “Lost income” (clause 120 of Instruction No. 162n, clause 152 of Instruction No. 174n, clause 180 of Instruction No. 183n).

In accounting, transactions for accrual and write-off of fines can be reflected as follows:

In conclusion, we note once again that the amount of the penalty accrued for violation of contractual obligations is written off in accordance with Rules No. 783. If the counterparty has not confirmed the existence of a debt for penalties, the decision to write it off is not made.

Federal Law No. 44-FZ dated April 5, 2013 “On the contract system in the field of procurement of goods, works, and services to meet state and municipal needs.”

Instructions for using the Unified Chart of Accounts accounting for public authorities ( government agencies), local government bodies, state government bodies off-budget funds, state academies sciences, state (municipal) institutions, approved. By Order of the Ministry of Finance of the Russian Federation dated December 1, 2010 No. 157n.

Instructions for using the Chart of Accounts budget accounting, approved By Order of the Ministry of Finance of the Russian Federation dated December 6, 2010 No. 162n.

Instructions for using the Chart of Accounts budgetary institutions, approved By Order of the Ministry of Finance of the Russian Federation dated December 16, 2010 No. 174n.

Instructions for the use of the Chart of Accounts for accounting of autonomous institutions, approved. By Order of the Ministry of Finance of the Russian Federation dated December 23, 2010 No. 183n.