Assignment operations. Assignment and reassignment of the right to claim in tax accounting

When concluding an agreement on the assignment of the right to claim a debt, a new creditor must transfer primary documents confirming this debt. Otherwise, it will be impossible to recover it from the debtor (Resolution of the Federal Antimonopoly Service of the Urals District of September 10, 2013 No. F09-2213 / 12). There are other nuances...

The right to claim can be assigned

The right to claim a debt belonging to the creditor can be transferred on the basis of an agreement or on the basis of a law (Article 382 of the Civil Code of the Russian Federation).
If the transfer of rights to a new creditor occurs on the basis of an agreement, then such an agreement on the transfer of the rights of the creditor is called, or cession. In this case, the creditor who assigns his claim to the debtor is called the assignor, and the creditor who has received such a right is called the assignee.

In other words, in accordance with civil law, the assignment of the right to claim (cession) is understood as an agreement to replace the former creditor, who retires from the obligation, with another person, to whom all the rights of the former creditor are transferred.
At the same time, the new creditor does not conclude a new independent agreement with the debtor, but enters into an already concluded transaction as a party and can demand from the debtor only the fulfillment of the terms of the transaction concluded by the previous creditor.

For example, under the contract, the supplier company shipped agricultural products to the buyer. Having fulfilled its obligations, it has the right to demand payment from the other party. In accordance with civil law, such a debt is a property right belonging to the supplier as a creditor, which can be assigned to another person.

By concluding an assignment agreement, the seller cedes the right to demand from the buyer payment of receivables to a third party (new creditor).

The contract specifies the requirements to be transferred

The assignment agreement specifies the specific requirements arising from the concluded transaction, the rights under which are transferred, with a mandatory reference to its details. An agreement that does not contain these conditions is considered not concluded, and a new creditor acquiring the right to claim under such an agreement will have no grounds for making claims against the debtor.

The assignment is made in the same form as was established for the original transaction, the rights under which are assigned (Article 389 of the Civil Code of the Russian Federation). For example, if the rights of claim under a transaction made in a simple written form are assigned, then the assignment agreement is also concluded in a simple written form. And if the main transaction, the rights under which are assigned, was subject to state registration or notarization, then the cession agreement must go through the appropriate procedures.

In accordance with Article 384 of the Civil Code of the Russian Federation, unless otherwise provided by law or contract, the right of the original creditor passes to the new creditor to the extent and on the conditions that existed at the time of their transfer. In particular, for the new creditor (assignee) the conditions on pledge, guarantee, interest and other ways of securing the obligation remain in force. All the benefits of the original creditor that are associated with the transferable right, including the rights that ensure the performance of the obligation, as well as the right to receive a penalty, also pass to him. In addition, the new creditor acquires all the risks associated with the debtor's failure to fulfill its obligations.

In practice, there are cases when the original creditor, ceding the right to claim under an obligation to a third party, changes the content of the claim: for example, a supplier, having a monetary claim against the buyer, transfers to the new creditor the right to demand the supply of raw materials and products from the buyer. Such an assignment agreement will be declared invalid, since the supplier does not have a commodity claim against the buyer.

Requirements are documented

The assignor, withdrawing from the obligation, terminates all relations with the debtor. Therefore, when making a transaction for the assignment of the right to claim, the parties to the assignment agreement must perform certain actions indicating a complete and unconditional change of persons in the obligation under which the ceded right of claim arose. In particular, a creditor who has assigned a claim to another person is obliged to transfer to him the documents certifying the right to claim and to provide information relevant to the collection of the debt (clause 2 of article 385 of the Civil Code of the Russian Federation). If this is not done, then in the future it will be difficult to prove your claims. In particular, the judges in the decision of the Federal Antimonopoly Service of the Urals District dated September 10, 2013 No. F09-2213 / 12 refused the plaintiff who bought the right to claim and tried to recover it from the debtor, precisely because of the lack of a primary.

Failure to submit documents cannot serve as grounds for recognizing the transaction on the assignment of the right to claim as void. This proceeds from the fact that the rights (claims) to the new creditor under general rule pass at the time of such transaction. And the documents certifying these rights are transferred on its basis (information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated October 30, 2007 No. 120).

To transfer the rights of a creditor to another person, the consent of the debtor is not required, unless otherwise provided by law or an agreement (clause 2, article 382 of the Civil Code of the Russian Federation). However, the debtor must be notified in writing of the transfer of rights that has taken place. A copy of the assignment agreement, a letter and other document can be considered as a notification.

At the same time, both the assignee and the assignor can notify the debtor of the transfer of rights.

If the debtor has not been notified in writing about the transfer of rights to another person, the new creditor bears the risk. In this case, the payment of the debt to the original creditor is recognized as the fulfillment of the obligation to the proper creditor.

Loss is recognized subject to limitations

In tax accounting, proceeds from the sale of property rights are recognized as income from the sale on the date the claim is ceded to a new creditor, which is defined as the day the relevant act is signed (clause 5, article 271 of the Tax Code of the Russian Federation). At the same time, the organization has the right to reduce the income from the sale of property rights by the price of their acquisition (subclause 2.1, clause 1, article 268 of the Tax Code of the Russian Federation). The loss received from the realization of the right of claim is taken into account by the enterprise as part of non-operating expenses (subclause 7, clause 2, article 265, clause 2, article 268 of the Tax Code of the Russian Federation). Features of determining the tax base in case of assignment (assignment) of the right to claim are established by Article 279 of the Tax Code of the Russian Federation. It regulates the procedure for recognizing expenses both in the initial assignment of the right to claim and in subsequent assignments. Let's consider them.

If the right is assigned by the seller of goods

In the case of the initial assignment of the right to claim, the procedure for recognizing expenses depends on whether the payment period for products, works or services in the transaction under which the rights are transferred has come or not. If the claim is assigned before the due date for payment, then not the entire loss is included in the expenses. But only in the amount that is calculated taking into account the requirements of Article 269 of the Tax Code of the Russian Federation. Recall that this article regulates the procedure for accounting for interest on debt obligations.

So, the amount that the assignor would pay in the form of interest on a debt obligation, equal to the income from the assignment of the right to claim, is taken into expenses. In this case, the specified amount is calculated for the period from the date of assignment of the right to the due date of payment stipulated by the contract for the sale of products.

If the debt is sold after the due date stipulated by the agreement on the sale of goods (works, services), the loss on this transaction is included in non-operating expenses in the following order:

• 50 percent - as of the date of assignment of the right to claim;
• 50 percent - after 45 calendar days from such date.

In this case, the loss is recognized for tax purposes in full without any restrictions. This point of view is also adhered to in their letters by the financial department (letter of the Ministry of Finance of Russia dated March 25, 2013 No. 03-03-06/1/9221).

This procedure for recognizing expenses also applies to a taxpayer - a creditor under a debt obligation (clauses 1 and 2 of article 279 of the Tax Code of the Russian Federation).

If financial services are provided

In the event of the subsequent resale of the right to claim the debt by the enterprise that bought it, this operation is considered as the sale of financial services. Income (revenue) in this case is the value of property due to the enterprise in payment for the realized right of claim.

In addition to the income from the resale of the right to claim, the enterprise can receive the specified debt directly from the debtor. In this case, income will be recognized on the date of receipt of this debt (letter of the Ministry of Finance of Russia dated August 6, 2010 No. 03-03-06/1/530).

The tax base in this case is defined as the difference between income in the form of proceeds from the sale of financial services and the amount of expenses associated with the acquisition of an assigned claim (clause 1, article 268 of the Tax Code of the Russian Federation). And if the income is received in the form of fulfillment of an obligation by the debtor, then the tax base will be the difference between the costs of acquiring the debt and its amount.

Not all amounts are subject to VAT

Whether or not transactions on the assignment of a claim are taxed depends on the basis of which contract the right to claim arose. Value added tax is levied on transactions in cases where the debt being sold arose as a result of the execution of an agreement for the sale of products, works or services subject to this tax (clause 1, article 155 of the Tax Code of the Russian Federation).

Conversely, the assignment of the right to claim a debt arising from the sale of products, works and services that are exempt from tax on the basis of the provisions of Article 149 of the Tax Code of the Russian Federation is not subject to VAT. For example, a transaction for the sale of a debt that arose as a result of the debtor's failure to fulfill a loan agreement.

And the procedure for calculating VAT depends on who has the right to claim at the time of the assignment. If the debt is sold by the original creditor - the supplier of goods (works, services), the tax base will be the excess of the income from the assignment of the right over the amount of the monetary claim.

Well, if the claim is conceded by a new creditor who has received a monetary claim from the supplier of goods (works, services), then the tax base is the excess of the amount of income upon the subsequent assignment of the claim or upon termination of the corresponding obligation over the amount of expenses for the acquisition of the specified claim (paragraph 2 of Art. 155 of the Tax Code of the Russian Federation).

In the event of a subsequent resale of the debt, the tax base will also be the difference between the proceeds from the sale or funds received from the debtor and the costs of purchasing this claim (clause 4, article 155 of the Tax Code of the Russian Federation).

Need to send an invoice

When assigning a monetary claim, the transferring party must present the new creditor (buyer) with the appropriate amount of tax for payment and issue an invoice (clauses 1, 3, article 168, subparagraph 1, paragraph 3, article 169 of the Tax Code of the Russian Federation). On its basis, the buyer will be able to deduct the amount of VAT indicated in it (clause 1, article 169 of the Tax Code of the Russian Federation). He must reflect the invoice in the register of received and issued invoices and register in the sales book.

Column 5 "Cost of goods (works, services), property rights without tax in total" of the invoice reflects the tax base. Column 7 indicates the VAT rate - 18 percent, and column 8 - the calculated amount of VAT.

If, upon assignment of a monetary claim, the difference between the assignment price and the amount of the claim is negative or equal to zero (that is, the tax base is equal to zero), the calculated VAT amount indicated in column 8 of the invoice is also equal to zero. An invoice is not prepared if the transferred debt claim arose during the performance of transactions that are not subject to VAT.

Assignment of a claim is recorded

In accounting, account 76 “Settlements with various debtors and creditors” can be used to account for settlements with the assignee. The cost of the assignment of the claim, established by the assignment agreement, is recognized as part of the composition on the date of transfer of the right of claim to the new creditor in the debit of account 76 in correspondence with the credit of account 91 "Other income and expenses" (clauses 7, 10.1, 16 RAS 9/99). At the same time, an entry in the debit of account 91 and the credit of account 62 deducts the amount of receivables from other expenses (clauses 1, 14.1, 16, 19 PBU 10/99).

Note! When the original creditor sells the right to claim, the loss is included in non-operating expenses in the amount of 50 percent on the date of assignment of the right to claim and another 50 percent after 45 calendar days.

September 2013

If it becomes necessary to sell your right to claim a debt from a borrower, then all the nuances must be observed. If they are not adhered to, then the transaction may be invalidated.

Essence of the question

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The essence of the transaction for the assignment of the right to claim is that one party, the original creditor, decides to sell its right to claim the debt from the borrower to another person.

At the same time, it is not necessary to ask the consent of the debtor to change the creditor, but it is necessary to notify him of the upcoming transaction.

The third party to whom the debt is sold can be either an organization or an individual.

The transaction must be paid, that is, paid. The right to demand a debt from the borrower is transferred to a third party after he pays the creditor a certain amount Money. As a rule, it is equal to the amount of outstanding debt.

Or maybe free of charge. But, if the buyer of the debt is a legal entity, then it may have unpleasant tax consequences.

Today, the issue of assignment of rights arises when the subject of the initial transaction is a real estate object.

This is the most popular type of cession in Russia. An example is the assignment of rights under an equity participation agreement in the construction of an apartment building.

If we are talking about a monetary debt, then the exclusive right of the creditor to demand the return of funds is sold. An example of such a transaction is the transfer of debt to a collection agency.

The legislative framework

An agreement on the assignment of rights to claim a debt must be concluded exclusively in writing. This is stated in Art. 388-390 of the Civil Code of the Russian Federation. Such an agreement is called a "cession".

If the subject of the initial transaction is a real estate object sold on the basis of an equity participation agreement, then it is necessary to adhere to the norms prescribed in the articles of the Federal Law of December 30, 2004 “On remote control in the territory of the Russian Federation”.

In Art. 164 of the Civil Code of the Russian Federation states that this agreement is subject to mandatory registration if the subject of the transaction is real estate.

Main Terms

The “cession” itself implies the sale of debt from the main creditor to a third party.

The parties to the agreement are:

In what cases can it happen

The following grounds may arise for concluding an assignment agreement:

That is, the assignor himself has no desire to engage in the return of borrowed funds. He prefers to transfer this right to a third party.

Assignment of the right to claim a debt

For the transaction to be considered valid, it is necessary to conclude an assignment agreement. This must be done if one of the parties is a legal entity.

If the transaction is concluded between citizens, then a written agreement is not required by law.

A transaction for the transfer and alienation of rights to debt obligations must be concluded in accordance with paragraph 1 of Chapter 24 of the Civil Code of the Russian Federation.

The assignment agreement must be:

Documents confirming the original transaction must be attached to the contract.

The exact list is determined individually, depending on the nuances of the transaction, which resulted in a monetary debt.

Depending on the grounds on which the debt arose, the following documents must be attached to the assignment agreement:

Be sure to attach a debt repayment schedule, that is, how much and when the debtor contributed funds to repay a loan or loan.

If he did not contribute anything, then an extract is not needed, but this nuance must be noted in the contract. A sample assignment agreement is possible.

Between legal entities

Enterprises have the right to conclude an assignment agreement among themselves, but subject to certain nuances.

It is important to draw up an agreement correctly and pay all taxes on time, then there will be no claims from regulatory authorities.

The reason for the drafting and signing of such an agreement between legal entities is an uncollectible receivable.

Not only credit and financial institutions, but also other organizations can act as a new creditor. A sample contract is available.

This decision was made by the RF Armed Forces in 2015. Since then, bad debts can be sold to absolutely any enterprise.

When drawing up an assignment agreement between legal entities, it is worth considering some features:

Important! The cession transaction must necessarily be reflected in accounting sides.

Companies have an obligation to pay VAT, so you need to provide for all the subtleties.

When assigning debt between legal entities, tax consequences arise due to incorrect reflection of taxes.

The tax authorities have the right to charge additional VAT if they see that the transaction price was deliberately underestimated.

Between individuals

Citizens also have the right to conclude an agreement on the assignment of the right to claim.

Debt can arise for various reasons - from the division of property acquired in marriage, to the inheritance of debt by law or by will.

Since the parties are citizens, the contract must be signed by both parties, but it should not contain a seal. A prerequisite is the presence of passport data of both parties.

Citizens, when drawing up an assignment agreement, should take into account the following nuances:

An assignment agreement cannot be signed if the debtor already has obligations to the court regarding the payment of personal debts.

These include:

• alimony debt to a child or other relative;
• compensation for moral damage;
• compensation payments;
• other.

trilateral agreement

The difference from a bilateral agreement is that data about the debtor is also written in the “body”.

When drawing up such an agreement, the following nuances should be taken into account:

Video: conclusion of a DDU agreement

Nuances when signing an agreement

Like any other document, an assignment agreement can be signed by proxy. For example, one of the parties cannot be personally present at the signing of the agreement.

But she has the right to send her representative to the deal. The latter must have a notarized power of attorney in his hands, giving him the authority to sign documents.

The power of attorney is issued only by a notary. In addition, it must be stated in it that the principal gives his trustee the right to sign various documents, including contracts.

The power of attorney also states:

1. Name of the parties.
2. their passport details.
3. Transferable powers.

When drawing up an assignment agreement, it must be indicated that one of the parties signs the document with its representative.

The consequence of the instability of the global and local economy is the emergence of difficulties for borrowers in servicing previously attracted loans. In such cases, banks are forced to create provisions for problem loans, which negatively affect the financial stability (standards) of the bank. Quite often, the bank's work with problem loans (borrowers) does not bring the desired results. In these cases, the bank may decide to write off the loan debt at the expense of reserves (without receiving any income) or assign the debt under an assignment agreement. In this article, we will focus on some of the contentious issues of taxation on profits from assignments of credit claims.

Assignment of claims: general points

The assignment by the creditor of the right of claim under the transaction to another person is carried out in the manner provided for in Ch. 24 of the Civil Code of the Russian Federation. In particular, on the basis of paragraph 1 of Art. 382 of the Civil Code of the Russian Federation, a right (claim) belonging on the basis of an obligation to a creditor may be transferred by him to another person. Such a transfer may be carried out as a result of the conclusion of a transaction for the assignment of a claim (cession) or on the basis of a law.
An important point in the assignment of claims is to determine the scope of the rights of the creditor, passing to another person. At the same time, in accordance with Art. 384 of the Civil Code of the Russian Federation, unless otherwise provided by law or an agreement, the right of the original creditor passes to the new creditor to the extent and on the conditions that existed at the time of transfer of the right. In particular, the rights securing the performance of the obligation, as well as other rights related to the claim, including the right to interest, are transferred to the new creditor.
As for the procedure for taxing income tax on a transaction on the assignment of rights of claim, the taxation features of such a transaction are established in Art. 279 of the Tax Code of the Russian Federation. The taxation procedure depends on whether the assigned debt is overdue or not. Also Art. 279 of the Tax Code of the Russian Federation provides for some features of the taxation of the assignment (repayment) of previously acquired debt.
If the bank assigns non-overdue debt, then the loss from such an assignment (the negative difference between the income from the assignment and the nominal value of the assigned rights) can be recognized for income tax purposes at a time in the amount not exceeding the specially established paragraph 1 of Art. 279 of the Tax Code of the Russian Federation limits.
In particular, the amount of loss for income tax purposes cannot exceed the amount of interest that the taxpayer would pay based on:
- the maximum interest rate established for the relevant type of currency, clause 1.2 of Art. 269 ​​of the Tax Code of the Russian Federation. Recall that according to paragraph 1.2 of Art. 269 ​​of the Tax Code of the Russian Federation, the maximum interest rate for the corresponding type of currency is recognized:
1) 180% (for the period from January 1 to December 31, 2015) or 125% (starting from January 1, 2016) of the key rate of the Bank of Russia - for a debt obligation issued in rubles;
2) EURIBOR + 7 percentage points - for a debt obligation issued in euros;
3) SHIBOR + 7 percentage points - for a debt obligation issued in Chinese yuan;
4) LIBOR in pounds sterling + 7 percentage points - for a debt obligation issued in pounds sterling;
5) LIBOR in the corresponding currency + 5 percentage points - for a debt obligation issued in Swiss francs or Japanese yens;
6) LIBOR in US dollars + 7 percentage points - for a debt obligation issued in other currencies not specified above;
or at the option of the taxpayer:
- interest rate, confirmed in accordance with the methods established by Sec. V.1 of the Tax Code of the Russian Federation;
- on a debt obligation equal to the income from the assignment of the right to claim, for the period from the date of assignment to the date of payment, provided for by the contract for the sale of goods (works, services). The procedure for accounting for losses must be fixed in the accounting policy of the taxpayer.
Gain on the assignment of outstanding debt is, of course, recognized immediately and in full.
If the bank assigns overdue debt (the maturity of which has already come) and receives a loss on such a transaction, the specified loss may be recognized at a time for income tax purposes. Let us recall that earlier (in the previous version of Article 279 of the Tax Code of the Russian Federation) the loss was subject to recognition for income tax purposes in the amount of 50% on the date of assignment of claims. The remainder of the loss could be taken into account for income tax purposes 45 days following the date of assignment of the claim.
If a transaction for the assignment of rights to claim a debt is recognized as controlled in accordance with Sec. V.1 of the Tax Code of the Russian Federation, the price of such a transaction is determined taking into account the provisions of Sec. V.1 of the Tax Code of the Russian Federation.
Note that in any case (assignment of non-overdue or overdue debt), the loss received from such an operation must be economically justified. Otherwise, the creditor bank (aka the assignor) is not entitled to take into account such a loss for profit tax purposes.
The above comments are general for determining the procedure for taxation of a transaction for the assignment of claims on loans. Next, we will consider the subtle points that must be taken into account for tax purposes in the event that a bank enters into cession transactions.

Economic justification for losses incurred as a result of the assignment

The cornerstone issue related to the possibility of recognizing losses resulting from the assignment of claims by the bank is the economic feasibility of the losses incurred.
AT recent times tax authorities began to quite often successfully challenge the legality of recognition for income tax purposes of losses received as a result of the exercise of rights of claim on loans. When arguing their decisions, the tax authorities often refer to the economic groundlessness of such losses.
Consider some judicial practice, which raised issues related to the recognition by banks of losses from the assignment of claims on loans (other claims).

Assignment of secured loans at a loss (negative decision for the taxpayer)

Ruling of the Supreme Court of the Russian Federation No. 307-KG14-8272 dated February 13, 2015 in case No. А56-50155/2013 considered the case of challenging by the tax authorities the possibility of accounting for income tax purposes the losses incurred by a Russian bank (hereinafter referred to as the bank) as a result of assignment of loans.
In particular, in 2011 the bank exercised rights of claim on loans at a significant discount. The loss resulting from this operation was taken into account by the bank for income tax purposes. The tax authorities challenged (and the court upheld them) the legitimacy of the bank's accounting for profit tax purposes of losses from operations for the realization of rights of claim on loans. The following arguments of the tax authorities served as the basis for the decision:
- the assigned debt was secured in the form of collateral (mortgage) agreements, guarantees, as well as bank guarantees;
- the assignment of the rights of claims on loans was carried out between related parties;
- having examined the evidence presented by the bank, the courts came to the conclusion that the bank did not submit documents confirming that all possible measures were taken to collect the ceded debt before the date of conclusion of the disputed agreements;
- in order to confirm the validity of concluding cession agreements, the bank submitted a conclusion "On Concluding Agreements for the Assignment of Rights of Claims for Obligations of Borrowers to the Bank", prepared by the Troubled Assets Department for discussion by the Credit Committee. However, this conclusion was not taken into account on the grounds that there were no documents confirming the conclusions contained in the conclusion.
Based on the above arguments, the court concluded that the assignment of the right (claim) of the debt at a loss without taking all the necessary actions to return the funds is economically unjustified.

There was an intention to collect a deposit, but there were no actual actions (a negative decision for the taxpayer)

As part of the Decree of the Federal Antimonopoly Service of the Volga District dated November 28, 2013 in case No. A55-2686 / 2013, the tax authorities successfully challenged the illegality of accounting for the purposes of income tax loss under an assignment agreement, since before the conclusion of the assignment agreement, the bank ("Russian Capital") did not take measures to receive a debt resulting from non-performance of a loan agreement, and did not levy a claim on the subject of collateral.
In particular, as follows from the materials of the case, in the period under review, the bank, under an assignment agreement, exercised the rights of claim under loan agreements. At the same time, assigned debts under loan agreements were secured by collateral in the form of equipment, real estate, land and guarantees of legal entities and individuals in full. Recognizing the position of the tax authorities as legitimate, the court relied on the following main circumstances:
- during the audit, the bank presented documents confirming the implementation of measures to collect the debt. However, the submitted documents testified that there was no actual claim of the pledged property and funds of the guarantors;
- during the audit, documents were not presented that testify to the intention of the parties to the loan agreement to resolve the issue of levying execution on the pledged property out of court;
- the bank did not have any documents that could indicate that actual measures were taken to collect the debt.
Considering the foregoing, the court concluded that since the bank, prior to the conclusion of the assignment agreement, did not take measures to collect the debt resulting from non-performance of loan agreements, and did not levy execution on the subject of collateral or guarantors, the losses incurred as a result of the assignment of the right to claim were economically unjustified.
Similar circumstances influenced the decision of the court not in favor of the taxpayer in the framework of the Decree of the Arbitration Court of the Volga District dated March 11, 2015 N F06-21005/2013 in case N A55-13822/2014. In particular, within the framework of this proceedings, the tax authorities successfully proved that prior to the conclusion of the assignment agreement, the bank had not taken measures to collect the debt resulting from the non-performance of the loan agreement and to levy execution on the collateral. Based on these conclusions and other circumstances, the court decided that the accounting for loss under the assignment agreement is not lawful.
As part of the Decree of the Federal Antimonopoly Service of the Volga District dated July 23, 2013 in case No. A55-30546 / 2012, a dispute was also considered, in which the tax authorities charged additional income tax, believing that the bank unlawfully took into account the loss under the assignment agreement for income tax purposes. In particular, the tax authorities argued that before the conclusion of the assignment agreement, the bank did not take measures to collect the debt resulting from the borrower's failure to fulfill the loan agreement, and did not levy the collateral. The court agreed with the position of the tax authorities, pointing out that non-collection of debt and debt forgiveness do not contradict the law, however, they deprive the bank of the opportunity to write off the loss from the realization of the right to claim for non-operating expenses in accordance with paragraph 2 of Art. 279 of the Tax Code of the Russian Federation.
Similar conclusions also follow from the Decree of the Federal Antimonopoly Service of the Volga District of December 17, 2013 in case N A55-31301/2012.

Assignment of claims under executed letter of credit at a loss (negative decision for the taxpayer)

As part of another episode described in the Ruling of the Supreme Court of the Russian Federation of February 13, 2015 N 307-KG14-8272 in case N A56-50155 / 2013, the tax authorities challenged the legality of accounting by a Russian bank (hereinafter referred to as the bank) for income tax purposes of a loss, received from the realization of the rights of claim under the letter of credit.
Recall that according to paragraph 1 of Art. 867 of the Civil Code of the Russian Federation when making settlements under a letter of credit, the bank acting on behalf of the payer to open a letter of credit and in accordance with its instructions (issuing bank), undertakes to make payments to the recipient of funds or to authorize another bank (executing bank) to make payments to the recipient of funds. Paragraph 2 of Art. 870 of the Civil Code of the Russian Federation provides that if the executing bank made a payment in accordance with the terms of the letter of credit, the issuing bank is obliged to reimburse him for the expenses incurred. These expenses must be subsequently reimbursed to the issuing bank by the payer.
Thus, losses in the transaction of assignment of the right to claim under an uncovered letter of credit should be included by taxpayers in non-operating expenses in the amount of the negative difference between the income from the sale of the right to claim the debt and the amount of actual reimbursement by the issuing bank of the expenses incurred to the executing bank.
The reason for challenging by the tax authorities the possibility of accounting by the bank for profit tax purposes of the loss received from the assignment of claims under the letter of credit was the arguments of the tax authorities regarding the lack of grounds for the bank (acting as the issuing bank) to make a payment in favor of the executing bank under the letter of credit. The arguments of the tax authorities were based mainly on the following circumstances:
- when the beneficiary submits documents to the confirming bank, the latter notifies the bank of the date of payment and the amount of money paid by the confirming bank to the beneficiary by a keyed message transmitted via SWIFT channels.
The bank did not have the specified SWIFT message. Based on these circumstances, the tax authorities concluded that there were no documents that are the basis for the payment by the bank in favor of the executing bank;
- in the course of an on-site tax audit by the tax authorities, it was found that the provision of services "ordered" by the bank's client was not actually carried out.
This conclusion was made by the tax authorities on the grounds that the parties (one of which was the bank's client) concluded an agreement on the offset of similar counterclaims under the relevant agreements (in respect of which the bank opened a letter of credit). In our opinion, this conclusion, for the reasons indicated, may not be in full degree fair;
- the tax authorities established the presence of significant shortcomings, contradictions in the documents submitted by the "seller" to the nominated bank, in particular, an incomplete package of required documents, the inability to identify signatures on documents, the absence of shipping documentation, an indication in the trade invoice for the supply of goods not according to specification .
According to the tax authorities, in this case the bank had the right to refuse to make payments on letters of credit. However, the bank did not take advantage of the provisions of Art. 16 of the Uniform Customs and Practice for Documentary Letters of Credit (publication of the International Chamber of Commerce N 600 as amended in 2007) and did not initiate a review of the elimination of deficiencies, and did not exercise the right provided for in paragraph 2 of Art. 871 of the Civil Code of the Russian Federation, to refuse to reimburse the amounts paid;
- agreements on the opening of letters of credit provided for the right of the bank to check the financial and economic situation of the client. The client is obliged to allow the bank's employees to enter office, production, storage and other premises for targeted inspections.
Based on these provisions of the contracts, the tax authorities concluded that the bank had the opportunity to inspect the premises of its client for the work provided for by the contracts, in order to verify their absence and refuse to execute letters of credit for this reason;
- the assignee was a related person of the bank.
Considering the above, the courts came to the conclusion that the bank had the opportunity to learn about the actual circumstances of the legal relationship between the payer and the supplier under the letter of credit agreements, had complete information about the financial relations of these persons, accepted and processed payments, maintained the client's settlement accounts, i.e. had sufficient information that the services under the contracts are not being provided. Therefore, according to the court and the tax authorities, the bank should have known that the acts of acceptance under the contracts were formal and did not confirm the actual delivery of goods and performance of work (rendering of services).
After evaluating the evidence presented, the courts came to the conclusion that the actual economic meaning of the operations carried out by the bank to exercise the rights of claims under letters of credit does not correspond to those enshrined in paragraph 1 of Art. 252 of the Tax Code of the Russian Federation to the criteria for focusing activities on generating income.
Thus, in the opinion of the Supreme Court of the Russian Federation, the tax authorities justifiably excluded from the tax base for the bank's income tax the losses received by it as a result of the assignment of the rights of claims under the letter of credit, the execution of which was optional on the part of the bank.

Mandatory presence of confirmation of the adoption of measures to collect the debt (a positive decision for the taxpayer)

It should be noted that not all legal disputes concerning the economic feasibility of the assignment of claims are won by the tax authorities.
In particular, in the Decree of the Federal Antimonopoly Service of the North-Western District dated June 19, 2014 in case No. А56-55264/2013, the tax authorities challenged the legitimacy of the bank ("MDM Bank") recognizing a loss from transactions for the assignment of rights of claim. According to the tax authorities, the loss received by the bank was economically unjustified, since the bank did not carry out due work to collect the debt.
According to the case file, the bank ceded the debt under several loan agreements, while the obligations under these loan agreements were secured by a pledge of movable and immovable property and property rights. According to the tax authorities, the loss received by the bank as a result of the assignment of the rights of claim was unlawfully attributed to non-operating expenses for income tax, as it is economically unjustified, since the bank did not carry out due work to collect the debt, including from guarantors and at the expense of mortgaged property.
The following circumstances (conclusions) served as grounds for the court to recognize the position of the tax authorities as unlawful:
- Art. 279 of the Tax Code of the Russian Federation does not provide for an additional condition on the need for the taxpayer to confirm the adoption of any measures to collect the debt and does not make the taxpayer's right to include in non-operating expenses the amounts of loss in the transaction of assignment of the right to claim depending on whether he took or did not take measures to recover the arisen debt from your borrower in a specific amount. In addition, the court noted that, as stated in the Ruling of the Constitutional Court of the Russian Federation of 04.06.2007 N 320-O-P, tax legislation does not use the concept of economic feasibility and does not regulate the procedure and conditions for conducting financial and economic activities, and therefore the reasonableness of expenses that reduce for tax purposes, the income received cannot be assessed in terms of their expediency, rationality, efficiency or the result obtained. Due to the principle of freedom economic activity the taxpayer carries out it independently, at his own risk and has the right to independently and solely evaluate its effectiveness and expediency;
- a part of the property of the debtor (guarantors) was seized (in a criminal case);
- some guarantors were declared bankrupt;
- the bank carried out an analysis of the state of the borrower (guarantors); in addition, when considering the issue of the expediency of a bank going to court to recover debts at the expense of pledged property, the bank took into account that this process and the process of further sale of property received in the course of recovery are lengthy and laborious;
- the value of the pledged property specified in the pledge agreement (as of the date of conclusion of the pledge agreement), in fact differs significantly from its market price at the time of sale (foreclosure on it);
- leaving by the bank of collateral for itself is associated for it with the occurrence of additional costs for its maintenance and further independent sale.
Based on the arguments above, the court concluded that the the financial analysis debt testified to the economic feasibility of the assignment by the bank of the rights of claim, rather than the implementation of measures to collect the debt at the expense of the pledged property and guarantors. Thus, the bank rightfully recognized the loss from these transactions as non-operating expenses for income tax purposes.

Topics for reflection

In this court case the taxpayer managed to demonstrate to the court that he had taken all necessary actions to collect the debt. At the same time, the lack of direct actions to foreclose on the pledge was compensated by the fact that the bank assessed the pledge and concluded that it was inappropriate (including due to a decrease in the market value) to foreclose on the pledge.

Classification of assigned debt as overdue or not overdue debt for tax purposes

It should be noted that the question of whether the assigned debt is overdue or not overdue is a fairly common question that taxpayers-banks have. The answer to this question determines the possibility of accounting for the actual loss for income tax purposes (when realizing an overdue debt) or the possible need to limit the resulting loss for tax purposes (when selling a non-overdue debt).
Next, we will consider some of the practical issues that may affect the recognition of debt as overdue or not overdue for the purposes of applying the provisions of Art. 279 of the Tax Code of the Russian Federation.

Establishment of a new debt repayment date unilaterally

Assignable debt may be recognized as overdue in cases where the creditor bank (in accordance with the provisions of paragraph 3 of article 450 and paragraph 1 of article 452 of the Civil Code of the Russian Federation, as well as article 33 of the Federal Law of 02.12.1990 N 395-1 "On banks and banking activities") unilaterally sets a new date for the repayment of the loan. A new date may be set by the bank by notifying the borrower that all outstanding loans and interest become due immediately. To confirm this position, see also Letter of the Ministry of Finance of Russia dated April 18, 2011 N 03-03-06 / 2/63.
In the Letter of the Federal Tax Service of Russia dated 05.20.2015 N GD-4-3 / [email protected] the issue related to the unilateral change of the loan repayment date was described in more detail. In particular, from the said Letter it followed that in May 2013 Mr. commercial Bank due to the borrower's failure to fulfill obligations to pay interest under the loan agreement, the maturity of which was due on November 20, 2015, sent a request to the borrower for early repayment of the entire amount of the debt by May 25, 2013. This requirement was not fulfilled by the borrower. The Bank filed a lawsuit against the pledgers to recover the debt and foreclose on the property of the pledgers, which acted as collateral under the loan agreement. On April 30, 2014, the bank's claim was satisfied by the arbitration court. On June 25, 2014, the debt under the loan agreement was assigned by the bank to a third party under an assignment agreement at a loss.
The issue identified in this Letter was related to the procedure for recognizing the resulting loss for tax purposes in such a situation, namely on what date such debt should be considered a debt with a due date for payment.
According to the opinion of the Federal Tax Service of Russia, set out in the Letter, the date of early repayment of the loan indicated in the bank's request can be considered as a payment period within the meaning of Art. 279 of the Tax Code of the Russian Federation. This conclusion was made by the tax authorities on the basis that Part 2 of Art. 29 of Federal Law No. 395-1 of December 2, 1990, it is established that a credit institution does not have the right to unilaterally change the terms of validity of loan agreements with customers - individual entrepreneurs and legal entities, with the exception of cases provided for by federal law or an agreement with a client. If the possibility of early repayment of the debt is provided for in the loan agreement, then, according to the Federal Tax Service of Russia, the bank sending a request to the borrower to repay the loan ahead of schedule changes the terms of the loan agreement by setting a new payment date.
At the same time, the Federal Tax Service of Russia in the Letter under consideration drew attention to the following point. The Presidium of the Supreme Arbitration Court of the Russian Federation in paragraph 3 of the Information Letter of September 13, 2011 N 147 indicated that the provisions of Part 2 of Art. 29 of Law N 395-1 "do not mean that the party to the contract, notified of the change in the terms of the contract and disagreeing with such changes, cannot prove that a unilateral change in contractual terms violates a reasonable balance of rights and obligations of the parties to the contract, is contrary to established business practices or other violates fundamental private law principles of reasonableness and good faith."
Thus, if, as a result of the borrower's appeal against the bank's claims or when considering statement of claim of the bank to recover the loan amount, the bank's demand will be recognized as unlawful or the court will appoint new term payment, then the classification of such a loan for the purposes of applying Art. 279 of the Tax Code of the Russian Federation should be made on the basis, respectively, of the initial payment period or the payment period established by a court decision that has entered into legal force.
When determining the payment term under a loan agreement secured by a pledge or guarantee, one should be guided by the following. According to paragraph 1 of Art. 348 of the Civil Code of the Russian Federation, the grounds for foreclosure on the pledged property are non-performance or improper performance by the debtor of the obligation secured by the pledge. A similar rule regarding the onset of liability of the guarantor is contained in paragraph 1 of Art. 363 of the Civil Code of the Russian Federation. Thus, if the obligation to repay the loan is secured by a pledge or guarantee, then the grounds for the bank to go to court with a claim for foreclosure on the pledged property or for the recovery of the loan amount from the guarantors can arise only for those loans for which the payment period has already come.
In this regard, according to the Federal Tax Service of Russia, if the obligation to repay the loan is secured by a pledge or surety, then judicial acts on foreclosure on the pledged property or on the recovery of the loan amount from the guarantors do not change the loan payment period within the meaning of Art. 279 of the Tax Code of the Russian Federation.

Annuity payments

It should be noted that the terms of the loan agreement may provide for the repayment of obligations by monthly annuity payments. At the same time, at the time of the assignment of the rights of claim, the expiration date of the loan agreement may not yet have come, although the borrower may already have overdue principal and interest in accordance with the annuity payment repayment schedule.
If the contract provides for a schedule of mandatory payments, then the assigned debt may be only partially overdue. In this case, the amount of the loss from the assignment of the overdue and non-overdue parts will be determined differently. Therefore, in the opinion of the Russian Ministry of Finance, it is expedient to indicate in the assignment agreement the price of assignment of each of such parts. Otherwise, the bank will not be able to correctly determine the income and, therefore, the tax base from the assignment of the right to claim in relation to each of the parts (see Letters of the Ministry of Finance of Russia dated 08.26.2010 N 03-03-06 / 2/150, dated 02.11.2009 N 03- 03-06/2/210).
Additionally, in the Letter of the Ministry of Finance of Russia dated March 25, 2013 N 03-03-06 / 1/9221, it is specified that in the event of an assignment within one debt of a part of the debt, the due date for which has come, the tax base from the assignment of a part of the debt must be determined taking into account the provisions of paragraph 2 tbsp. 279 of the Tax Code of the Russian Federation.

settlement agreement

In some cases, the term for making payments on debt may be changed due to the signing of a settlement agreement between the parties. In these cases, if arrears are thus restructured, the transaction for the assignment of such debts may be qualified as an assignment of arrears for the purposes of applying the provisions of Art. 279 of the Tax Code of the Russian Federation, since the conclusion by the parties of the initial transaction of a settlement agreement cannot change its conditions.
In particular, some courts believe that the signing of a settlement agreement does not lead to a new principal repayment period. This document establishes only the deadline for its execution (Resolutions of the FAS of the East Siberian District of August 21, 2012 N A78-10656 / 2011 and the FAS of the West Siberian District of June 16, 2008 N F04-8151 / 2007 (6432-A75-15)).

Changing the maturity of debt

The term of payment under the contract, which is the criterion for determining the procedure for accounting for losses from the assignment of the right to claim for profit tax purposes, should be determined on the basis of the terms of the relevant contract in force on the date of the assignment of the right to claim.
According to the Ministry of Finance of Russia, expressed in the Letter dated January 20, 2014 N 03-03-06 / 2/1395, if such a period was changed to the date of assignment of the right to claim in accordance with the provisions of Ch. 29 "Change and termination of the contract" of the Civil Code of the Russian Federation (including unilaterally), the payment period is determined in accordance with the terms of the contract, taking into account the changes made to it before the date of assignment of the right to claim (see also Letter of the Ministry of Finance of Russia dated 10.23.2013 N 03 -03-06/2/44462).

Assignment of the rights of claim of the debtor in respect of which bankruptcy proceedings have been opened

Let us separately pay attention to the procedure for taxation of the operation for the assignment of rights of claim under a loan agreement, the return period for which has not yet come, after the entry into force of a court decision to open bankruptcy proceedings against the debtor.
According to par. 2 p. 1 art. 126 of the Federal Law of October 26, 2002 N 127-FZ "On Insolvency (Bankruptcy)" from the date of the adoption by the arbitration court of the decision to declare the debtor bankrupt and open bankruptcy proceedings, the deadline for fulfilling the financial obligations that arose before the opening of bankruptcy proceedings and paying obligatory payments of the debtor is considered to have come.
Thus, according to some tax experts, taxpayers-creditors should be guided by the procedure for recording a loss from the assignment of claims for such debt in accordance with paragraph 2 of Art. 279 of the Tax Code of the Russian Federation.
However, according to the Russian Ministry of Finance (see Letter No. 03-03-06/2/141 of 09.08.2010), if a taxpayer who calculates income (expenses) on an accrual basis cedes the right to claim a debt to a third party after the date of acceptance by the arbitration court decision to declare the debtor bankrupt and open bankruptcy proceedings, but before the due date for payment under the contract, on the basis of which the assigned rights arose, the loss in this transaction should be taken into account in accordance with paragraph 1 of Art. 279 of the Tax Code of the Russian Federation. However, according to some tax experts, this approach of the financial department is quite controversial, since in fact (as mentioned earlier) from the date of the arbitration court's decision to declare the debtor bankrupt and open bankruptcy proceedings, the deadline for fulfilling monetary obligations that arose before the opening of bankruptcy proceedings and paying obligatory payments of the debtor is considered to have occurred.

Summarizing the above, we can conclude that when banks assign credit claims, it is necessary to be very careful in justifying the recognition of losses on such transactions for tax purposes. The presence of an unrelated party under the assignment agreement cannot fully guarantee that the losses incurred by the bank under the assignment agreement can be economically justified. This issue is especially acute in situations where the assigned debt is secured by a pledge or surety.

Assignment agreement (contract of assignment of the right to claim) refers to special contracts - in most cases, by concluding an assignment agreement, the assignment of the claim is carried out. The types of contracts under which the rights are transferred under the transaction are not defined, the scope of their application is quite extensive. As a rule, samples of an assignment agreement are necessary if the parties need exactly the fact of transfer of rights as a result.

According to the model of an assignment agreement, the right (claim) belonging to the creditor (assignor) on the basis of an obligation is transferred by him to another person (assignee).

Contract of assignment of the right to claim is reimbursable, consensual and bilateral

Object and parties of the assignment agreement

So, the assignment agreement results in the replacement of the creditor in the obligation. An assignment transaction is an action by the original creditor to waive its rights against the debtor and transfer them to a new creditor.

Parties under an assignment agreement are the assignor (the creditor ceding the right to claim) and the assignee (the creditor acquiring the right to claim under the assignment agreement). The legislation does not establish any restrictions regarding the legal status of the parties.

Essential terms of the assignment agreement

Russian legislation does not determine which conditions are essential for the existence and validity of the assignment agreement. It follows from this that the only essential (from the point of view of the law) condition of the assignment agreement is the condition on its subject (part 2, clause 1, article 432 of the Civil Code of the Russian Federation).

The subject of the assignment agreement there may be a subjective right of obligation or a right of claim, and if the subject of the obligation is divisible - both in full (in relation to the entire subject of the obligation), and in part.

The price of the cession agreement

Assignment agreement can be both paid and free. Since the law does not establish mandatory requirements for the price under the assignment agreement, the amount of payment for the assigned right of claim will be determined by agreement of the parties.

Assignment contract form

The law contains special requirements for the form of the assignment agreement. In accordance with Article 389 of the Civil Code of the Russian Federation, an assignment agreement based on a transaction made in a simple written or notarial form must be concluded in an appropriate written form.

The assignment of a claim under a transaction requiring state registration must be registered in the manner established for the registration of this transaction, unless otherwise provided by law (clause 2, article 389 of the Civil Code of the Russian Federation).

Additional terms of the assignment agreement

A cession can be made for various purposes and on the basis of various transactions. The absence in the assignment agreement of indications of the purpose (grounds) of its commission does not indicate its invalidity. The current civil legislation does not require the inclusion in the assignment agreement of information on the basis for the transaction.

According to the Civil Code, the consent of the debtor to conclude an assignment agreement is not a prerequisite, except in cases where the identity of the creditor is of significant importance to the debtor. In addition, the law does not oblige to notify the debtor of the conclusion of the assignment agreement, warning only that if the debtor was not notified in writing about the transfer of the rights of the creditor to another person, the new creditor bears the risk of adverse consequences caused by this for him.

Recognizing, as a general rule, the possibility of assignment of a claim, the law, nevertheless, establishes a number of restrictions. Firstly, the transfer to another person of rights that are inextricably linked with the personality of the creditor is not allowed (Article 383 of the Civil Code of the Russian Federation). This group includes claims for the payment of alimony, pensions, social benefits, etc. Changing the creditor in such obligations is contrary to their nature. Secondly, the current civil legislation (clause 1 of article 388 of the Civil Code of the Russian Federation) establishes the inadmissibility of the assignment of a claim by a creditor to another person if it contradicts the law, other legal acts or an agreement.

Accounting under an assignment agreement
Accounting with the assignor

General rules and principles apply to reflect operations on the assignment of the right to claim. accounting taking into account the specifics of the contract. The assigning organization, for which the realization of property rights is not a normal activity, reflects the assignment of the right to claim receivables on credit Debit Credit - Shipped products
Debit 90 Credit s / c "VAT" - VAT charged
Debit 90 Credit ( , ) - Written off the cost of shipped products
Debit 90 Credit - Reflected the financial result of the implementation
Debit 76 Credit 91 - The assignment of the right to claim is reflected
Debit 91 Credit 62 - Written off the cost of the right to claim
Debit 91 Credit 76 s / sch "VAT" - VAT accrued on the positive difference received from the assignment of the right to claim
Debit 99 (91) Credit 91(99) - Reflected the financial result from the assignment of the right to claim
Debit 76 s / sch "VAT" Credit - Accrued VAT payable to the budget for the initial transaction
Credit 76 - Received funds from the assignee to the current account
Debit 76 s / sch “VAT Credit 68 - VAT has been charged on the positive difference payable to the budget.

Usually, the sale of the right to claim a debt occurs at a loss, this loss is always formed on the date of signing the assignment act. And the procedure for its recognition in expenses depends on when exactly the right of claim passed from the seller to a third party.

The assignment occurred before the due date for payment

If the right of claim was transferred before the moment of payment, which was provided for by the original contract, then the loss can be written off immediately after signing the act with a third party. But in order to determine the amount of the write-off loss, it is necessary to calculate the amount of interest that the company would pay if it took out a loan equal to the income from the assignment of the right of claim. The amount of interest is calculated taking into account the requirements of Article 269 of the Tax Code of the Russian Federation. Moreover, interest is taken for the period from the date of assignment to the date of payment stipulated by the contract. Then you need to compare these percentages with the actual loss. The smaller amount is included in the costs.

The assignment occurred after the due date for payment

And if the right of claim is transferred after the term for payment for the goods under the contract has expired, then the loss can be written off in full, but in two stages. 50 percent of the amount can be taken into account in expenses on the day of assignment, and the remaining 50 percent - after 45 calendar days from this date (Article 279 of the Tax Code of the Russian Federation).
Assignee account

In the accounting of the new creditor, the receivables acquired by way of assignment of the right to claim will be reflected in accordance with the requirements of PBU 19/02 “Accounting for financial investments” as financial investments in the actual amount of costs for its acquisition.
Credit 76 - Acquired the right to claim
Debit 58 Credit 76 - Reflected the costs of acquiring the right to claim
Debit 51 Credit 91 - The debt is repaid by the original debtor
Debit 91 Credit 58 - The right of claim is written off
Debit 91 Credit 68 - VAT accrued from a positive difference
Debit 91 (99) Credit 99 (91) - Reflected financial result

According to the Tax Code Russian Federation If the receivables are sold at a higher value, then additional VAT must be paid on the excess amount in the period in which this amount was received.

Applications of the cession agreement
The assignment agreement contains appendices:
Payment schedule.(The payment schedule is an annex to the agreement, which clearly regulates the terms, conditions and amounts of payments. The schedule is applied on the basis of and in accordance with the agreement to which it is attached; the amounts of payments and the conditions for their payments are determined individually in each case).

Related documents to the assignment agreement:

The act of acceptance and transfer of title documents(Documentation acceptance and transfer certificate is an official document that has legal force and is an integral part of the contract. This is a protocol in which the parties determine the list of documentation to be transferred - the name, number of copies, original or copy, etc. In accordance with the act, technical documentation, title documents, etc. The act is applied on the basis of and in accordance with the contract to which it is attached; the number of copies of the act and the list of technical documentation is determined in each case).;

Supplementary agreement ( Very often, after the conclusion of an agreement, at the time of its validity and execution, certain circumstances arise, according to which certain clauses of such an agreement must be canceled, amended or added to new terms of the agreement. These changes are formalized by an additional agreement. An additional agreement to the contract is the same contract, and accordingly, its signing is possible and legal with the mutual consent of both parties to the contract. An additional agreement to the contract, in its essence, changes or terminates the main contract. All new conditions established by additional agreements cancel and invalidate the previous conditions established in the agreement. In this connection, the additional agreement to the contract is part of the main contract, and an integral part. Being part of the main contract, the supplementary agreement to the contract must comply with all the requirements for the main contract. When concluding an additional agreement to the contract, the rules used when concluding the main contract are applied. The supplementary agreement to the contract must indicate the place and time of conclusion, as well as the parties to the supplementary agreement to the contract. It should be noted that the terms of the supplementary agreement come into force from the moment the supplementary agreement to the contract is concluded (unless otherwise provided by law or the contract). Also, it is necessary to indicate which contract the supplementary agreement is part of, as well as all the conditions on which agreements must be reached. When concluding an additional agreement to the contract, it should be borne in mind that the additional agreement is made in the same form as the main contract (Article 452 of the Civil Code of the Russian Federation). Since most real estate transactions require state registration, an additional agreement to the contract also requires state registration. Thus, an additional agreement is a document that changes or terminates the main agreement, which is signed by mutual agreement of both parties.
Used in all contracts .);

Dispute protocol(A protocol of disagreements is a document in which the parties fix their disagreements on the terms of the contract being concluded. A protocol of disagreements can be drawn up both after the conclusion of the contract (then its terms are accepted in the same manner as the terms of the contract itself), and at the stage of developing a draft contract "The existence of such an addition means only the existence of some disagreements on certain issues. It is these contentious issues that are fixed by the protocol of disagreements. Usually such a protocol is drawn up in the form of a table containing the clauses of the contract that were not agreed upon by the parties and the wording of these clauses proposed by both one and the other party. The protocol of disagreements is a full part of the agreement, and its terms have the same force as the terms of the agreement itself.The protocol of disagreements must be signed, sealed and attached to the agreement.Otherwise, the signed agreement cannot be considered valid.In the agreement itself, the existence of the protocol disagreements a postscript is made: “Signed with a protocol of disagreements No. ... dated ... date ... month ... year." The party that drew up the protocol of disagreements submits it together with the prepared and signed agreement for signing to the other party. If the other party accepts the protocol of disagreements, then the protocol of disagreements is included in the contract as an additional condition. In case of disagreement of the first party with the protocol of disagreements, the first party has the right to refuse to sign the contract. Either refuse the protocol of disagreements and accept the terms of the agreement for signing, or draw up a protocol for reconciling disagreements. Used in all contracts except labor contracts ).;

Disagreement Protocol ( In case of disagreement of the first party with the protocol of disagreements, the first party has the right to draw up a protocol for reconciling the disagreements. In addition to the information contained in the protocol of disagreements, this document determines either a new, agreed version of the disputed clauses of the agreement, or an indication that the disputed clauses of the agreement were adopted in the version of one or another party. At the same time, a note is made in the protocol of disagreements: “Signed with the protocol of agreement of disagreements No. ... dated ... date ... month ... year." After signing the protocol for reconciliation of disagreements, the parties may also draw up a new version of the contract to be concluded, including the clauses agreed by the parties, or conclude an additional agreement to the contract. A signed protocol for reconciling disagreements can be equated to an additional agreement that changes some of the terms of the contract. Used in all contracts except labor contracts ).

CONTRACT OF ASSIGNMENT OF RIGHTS (CESSION)

Being ______ successor of ___________________________________, represented by __________________________________________, acting ___ on the basis of the Charter, hereinafter referred to as __ "Assignor" on the one hand, and ___________________________________________________, represented by _____________________________________________________________, acting ___ on the basis of the Charter, hereinafter referred to as __ "Assignee" on the other hand, have concluded this agreement on the following .

1. THE SUBJECT OF THE AGREEMENT

1.1. The Assignor assigns, and the Assignee accepts in full the rights and obligations under the agreement __________________________ concluded between the Assignor and __________________________________.

1.2. For the assigned rights and obligations under the ______________ agreement, the Assignee shall pay the Assignor compensation equal to the amount of money spent by the Assignor under the specified agreement (hereinafter referred to as the contract amount).

2. TRANSFER OF RIGHTS AND OBLIGATIONS

2.1. The assignor is obliged to transfer to the Assignee within three days from the date of signing this agreement all Required documents, certifying the rights and obligations under the agreement ________________ concluded with ____________________________, namely:

Agreement ______________, specified in clause 1.1 of this agreement, with all annexes, additional agreements and other documents that are an integral part of this agreement.

2.2. The assignor is obliged to inform the Assignee of all other information relevant for the Assignee to exercise his rights under the agreement _______________.

3. RIGHTS AND OBLIGATIONS OF THE PARTIES

3.1. On account of the assigned rights and obligations, the Assignee shall pay to the Assignor __________ _______________________________________. Payment of the specified amount is made according to the monthly payment schedule, which is part of the Agreement on the transfer of rights and the procedure for settlements (hereinafter referred to as the Agreement). The agreement is signed by authorized persons of the parties and is an annex to this assignment agreement.

3.2. The Assignee has the right to pay the contracted amount ahead of schedule, of which he must notify the Assignor in writing.

4. RESPONSIBILITIES OF THE PARTIES

4.1. The Assignor is responsible for the accuracy of the documents and information transferred in accordance with this Agreement, and also guarantees the availability and transferability of all rights assigned to the Assignee.

4.2. The assignor is responsible for the validity of the rights and obligations transferred under this agreement.

4.3. The liability of the Assignee in case of delay in payment of the contractual amount is specified in the Agreement.

4.4. For other non-performance or improper performance of this agreement, the parties are liable in accordance with the current legislation of the Russian Federation.

5. FINAL PROVISIONS

5.1. This agreement comes into force from the date of its signing by the Assignor and the Assignee and is valid until the full fulfillment of obligations under the agreement ___________________________.

5.2. The assignor undertakes, within three days after signing this agreement, to notify ___________________________ (the party to the main agreement) and all interested third parties of the assignment of their rights and obligations under the agreement to ________________.

5.3. This agreement is made in 3 copies, one for each of the parties. Instance no. 3 is sent to _______________________ (the party to the main contract).

Addresses and details and signatures of the parties:

CEDENT: CESSIONARY:

Application No. 1

to the assignment agreement dated "___" ____________

AGREEMENT ON THE TRANSFER OF RIGHTS AND PAYMENT PROCEDURES

______________ "__"________ ____

Being ______ successor of ___________________________________, represented by __________________________________________, acting ___ on the basis of the Charter, hereinafter referred to as __ "Assignor" on the one hand, and ___________________________________________________, represented by _____________________________________________________________, acting ___ on the basis of the Charter, hereinafter referred to as __ "Assignee" on the other hand, have entered into this agreement on the following .

1. According to the assignment agreement dated "__" _________ ____, the Assignor transfers to the Assignee all his rights and obligations under the agreement _____________________ concluded between the Assignor and ___________________ ______ (the party to the main agreement). The transfer of rights under the cession agreement dated "__" _________ _____, occurs at the time of signing this agreement.

2. The Assignee pays to the Assignor _________________________________________________.

3. According to paragraph 3 of the assignment agreement dated "__" _________ _____, the parties establish the following payment schedule:

- _______________ - _________ (_______________) rubles;

- _______________ - _________ (_______________) rubles.

4. For delay in payment, the Assignee shall pay to the Assignor a penalty in the amount of ___% of the amount of the debt for each day of delay.

5. Payment is made by bank transfer. Upon completion of the payment of the contractual amount, the parties reconcile the settlements.

6. This agreement is valid from the moment of signing and is an integral part of the assignment agreement from "__" _______ ____.

Assignor: Assignee:

__________________________ ________________________

"Income tax: accounting for income and expenses", 2010, N 10

The right (claim) belonging to the creditor on the basis of an obligation may be transferred by him to another person (clause 1, article 382 of the Civil Code of the Russian Federation). This norm establishes two grounds for the transfer of the creditor's rights: a transaction and a law. Upon assignment of a claim under a transaction, the original creditor enters into an agreement with a person to whom he assigns his claim and who becomes a new creditor in an already existing obligation.

Along with the term "assignment of the claim", the term "cession" is widely used in practice. In this case, the original creditor is called the assignor, and the new creditor is called the assignee.

How to reflect income and expenses under an assignment agreement in tax accounting? Read about it in this article.

Some features of the assignment agreement

Upon assignment of a claim under a transaction, the right of the creditor is limited by certain conditions specified in para. 2 p. 1 art. 382, as well as in Art. Art. 383, 388 of the Civil Code of the Russian Federation. The conditions for the transfer of the creditor's rights to another person on the basis of the law are named in Art. 387 of the Civil Code of the Russian Federation.

Paragraph 2 of Art. 382 of the Civil Code of the Russian Federation provides that the consent of the debtor is not required for the assignment of a claim. In this case, the parties may make the consent of the debtor a necessary condition of the contract.

However, if the identity of the creditor is essential for the debtor, then the assignment of the right to claim without the consent of the debtor is not allowed (clause 2, article 388 of the Civil Code of the Russian Federation).

Note that the Civil Code of the Russian Federation does not specify who should notify the debtor of the assignment - the assignor or the assignee. We believe that this moment is expedient to be prescribed in the agreement on the assignment of claims.

Otherwise, it may happen like this: the assignor believes that the assignee should notify the debtor, and the latter considers that it is the duty of the assignor, and the debtor will not know about the assignment and will fulfill his obligations to the original creditor.

The fact is that in paragraph 3 of Art. 382 of the Civil Code of the Russian Federation states: if the debtor was not notified in writing of the transfer of the rights of the creditor to another person, the new creditor bears the risk of adverse consequences caused by this for him. AT this case performance of an obligation to the original obligee shall be recognized as performance to the proper obligee.

The agreement on the assignment of the right to claim must be made in the same form as the original contract with the debtor - a simple written or notarial one (clause 1 of article 389 of the Civil Code of the Russian Federation). The assignment of a claim under a transaction requiring state registration must be registered in the manner established for the registration of this transaction, unless otherwise provided by law (Clause 2, Article 389 of the Civil Code of the Russian Federation).

Note. The agreement on the assignment of the right to claim is considered concluded from the moment it is signed by the parties (clause 12 of the Information Letter of the Presidium of the Supreme Arbitration Court N 120<1>).

<1>Information letter dated October 30, 2007 N 120 "Review of the practice of application by arbitration courts of the provisions of Chapter 24 of the Civil Code of the Russian Federation".

By agreement on the assignment of the right to claim, it is possible to transfer the right that did not arise at the time of the conclusion of the agreement. For example, you can assign the right to pay for products that will be sold in the future (clause 4 of the Information Letter of the Presidium of the Supreme Arbitration Court N 120). Assignment of the right of claim is possible even if the original creditor has not fulfilled its obligations to the debtor (for example, the supplier has not yet delivered the goods to the buyer) (clause 8 of the Information Letter of the Presidium of the Supreme Arbitration Court N 120).

In accordance with Art. 384 of the Civil Code of the Russian Federation, unless otherwise provided by law or an agreement, the right of the original creditor passes to the new creditor to the extent and on the conditions that existed at the time of transfer of the right. Thus, the assignment agreement may establish that the right of claim is partially transferred (partial assignment of the right) (see, for example, Decree of the FAS MO dated August 17, 2009 N KG-A40 / 7610-09, where the court explained that the norm of Article 384 The Civil Code of the Russian Federation is dispositive and allows the right of the original creditor, if the subject of the obligation from which the right (claim) is assigned is divisible, to assign to the new creditor the right (claim) belonging to him (claim) to the debtor, both in full and in part).

The rights securing the performance of the obligation, as well as other rights related to the claim, including the right to unpaid interest, pass to the new creditor.

Note. If the agreement on the assignment of a claim provided only the right to claim the principal debt, the right to claim a penalty cannot be considered transferred to the assignee along with the requirement to pay the amount of the principal debt (Determination of the Supreme Arbitration Court of the Russian Federation dated 10.12.

Note that the current legislation does not contain a rule prohibiting the creditor from assigning the right to claim only in part of the penalty (fine, penalties, interest) in the case when the main obligation is fulfilled. The right to collect accrued interest for late payment is an independent monetary claim and can be assigned separately from the right to claim the principal debt (see, for example, Resolutions of the FAS VVO dated 06/24/2009 N A79-345 / 2009, FAS TSO dated 11/15/2007 N A64-1821/06-23).

Tax accounting with the original creditor - assignor

The original creditor, ceding his right to claim the debt, receives income from the realization of this right. The difference between this income and the cost of goods sold (works, services) will be his profit.

Note. When a taxpayer - the seller of goods (works, services) cedes the right to claim a debt to a third party, the date of receipt of the assignment of the right to claim is determined as the day the parties sign the act of assignment of the right to claim (Clause 5, Article 271 of the Tax Code of the Russian Federation).

Example 1. In May 2010, Omega LLC shipped a consignment of goods to the address of Delta LLC in the amount of 1,180,000 rubles, including VAT - 180,000 rubles.

In September 2010, Omega LLC assigned the right to claim the debt of Sigma LLC for 1,200,000 rubles. The act on the transfer of this property right was signed on September 20, 2010.

The difference between the income from the sale of the right to claim a debt and the cost of the goods (works, services) sold will be the profit of Omega LLC and will amount to 20,000 rubles. (1,200,000 - 1,180,000).

However, such an ideal profitable option is a rare occurrence in practical life. Usually, organizations cede the right to claim in situations where the payment period has long passed and the ability to recover the debt from the debtor is very doubtful, and also when the payment period has not yet come, but funds are urgently needed and the conclusion of an assignment agreement is the only way to receive these funds. In such cases, as a rule, the income from the realization of the right to claim is less than the amount that is due to the debtor, and the organization receives a loss from this operation.

The procedure for determining losses upon assignment of the right to claim is reflected in paragraphs 1 and 2 of Art. 279 of the Tax Code of the Russian Federation and depends on the moment at which the claim was ceded - before the due date for payment (clause 1) provided for by the contract for the sale of goods (works, services) or after it (clause 2).

Note. For the purposes of Chap. 25 of the Tax Code of the Russian Federation losses received under the transaction of assignment of the right to claim in the manner prescribed by Art. 279 of the Tax Code of the Russian Federation are equated to non-operating expenses (clause 7, clause 2, article 265 of the Tax Code of the Russian Federation).

If the assignment is made before the due date for payment...

The negative difference between the income from the realization of the right to claim a debt and the cost of the sold goods (works, services) is recognized as a taxpayer's loss. At the same time, the amount of loss for tax purposes cannot exceed the amount of interest that the taxpayer would have paid taking into account the requirements of Art. 269 ​​of the Tax Code of the Russian Federation for a debt obligation equal to income from the assignment of the right to claim for the period from the date of assignment to the date of payment stipulated by the contract for the sale of goods (works, services).

Recall that the Federal Law of July 27, 2010 N 229-FZ Art. 269 ​​of the Tax Code of the Russian Federation was supplemented by clause 1.1, the provisions of which apply to expenses in the form of interest on debt obligations made from January 1, 2010. In accordance with clause 1.1 of Art. 269 ​​of the Tax Code of the Russian Federation, the maximum amount of interest recognized as an expense when registering a debt obligation in rubles is taken equal to the interest rate determined by agreement of the parties, but not exceeding the refinancing rate of the Central Bank of the Russian Federation, increased by 1.8 times (from 01/01/2010 to 12/31/2012).

Example 2. In May 2010, Omega LLC shipped a consignment of goods to the address of Delta LLC in the amount of 1,180,000 rubles, including VAT - 180,000 rubles. According to the delivery contract, the payment term for the goods is August 4, 2010.

Omega LLC ceded the right to claim the debt of Sigma LLC for 900,000 rubles. The act on the transfer of this property right was signed on July 5, 2010.

The loss from the transaction amounted to 280,000 rubles. (1,180,000 - 900,000). Let us determine the amount of loss that can be accepted for the purposes of calculating income tax.

So, paragraph 1 of Art. 279 of the Tax Code of the Russian Federation invites us to calculate by analogy the amount of interest, as if the organization did not conclude an assignment agreement, but a loan or credit agreement. That is, you should calculate the amount of interest on a debt obligation equal to the amount of the assignment of a claim in the amount of 900,000 rubles.

The number of days in the period for which interest will be calculated is 30 (from July 6 to August 4). The refinancing rate of the Central Bank of the Russian Federation in this period amounted to 7.75%<2>. We calculate the amount of interest, taking into account the requirements of Art. 269 ​​of the Tax Code of the Russian Federation. It will amount to 10,319 rubles. (900,000 x 7.75% x 1.8 / 365 days x 30 days).

<2>According to the Instruction of the Central Bank of the Russian Federation of May 31, 2010 N 2450-U, the refinancing rate from June 1, 2010 was 7.75%.

Thus, only the amount of 10,319 rubles will be included in non-operating expenses. The remaining 269,681 rubles. (280,000 - 10,319) will not be taken into account for tax purposes.

<3>for the nine months of 2010 (for the period January - July, if the organization reports on a monthly basis, based on the actual profit received):

<3>

In the accounting of the organization, the loss received under the assignment agreement is fully taken into account when forming the financial result. In this regard, a constant difference is formed in accounting, leading to the occurrence of PNO (clauses 4, 7 PBU 18/02 "Accounting for income tax calculations"<4>).

<4>Approved by the Order of the Ministry of Finance of Russia dated November 19, 2002 N 114n.

The following entries will be made in the accounting records of Omega LLC:

Note. If a taxpayer assigns a monetary claim arising from a loan agreement, then the tax base is determined as the difference between the amount received from the new creditor and the borrower's debt under the agreement at the time of the assignment. The provisions of paragraph 1 of Art. 279 of the Tax Code of the Russian Federation regarding the determination of the amount of loss for tax purposes also apply to the taxpayer-creditor under a debt obligation.

If the assignment of a claim is made after the due date for payment...

Loss for tax purposes is accepted in the following order:

• 50% of the amount of the loss is included in non-operating expenses as of the date of assignment of the right to claim;
• 50% - after 45 calendar days from the date of assignment of the right to claim.

Example 3. Let's use the data of example 2, changing only one condition: the act on the transfer of this property right was signed on August 25, 2010.

According to paragraph 2 of Art. 279 of the Tax Code of the Russian Federation, the loss from the assignment of the right to claim in the amount of 280,000 rubles. for the purposes of calculating income tax will be accepted in full:

• 50% of the amount of the loss (140,000 rubles) will be included in non-operating expenses as of the date of signing the act - August 25, 2010;
• the remaining 50% (140,000 rubles) - after 45 calendar days, October 10, 2010

These amounts are reflected in Appendix 3 to sheet 02 of the income tax return<5>for the nine months of 2010 (for the period January - August, if the organization reports on a monthly basis based on the actual profit received):

<5>Approved by the Order of the Ministry of Finance of Russia dated 05.05.2008 N 54n.

In the accounting of the organization, the loss received under the assignment agreement is fully taken into account when forming the financial result in August 2010. But the “second” 50% of the amount of the loss, taken into account for tax purposes only in October 2010, forms a deductible temporary difference. In this regard, SHE arises in accounting (clauses 8 - 11, 14 PBU 18/02).

So, if the organization assigns the right to claim the debt after the due date of payment established by the agreement with the buyer, in case of a loss from the operation, it does not lose anything, unless the reflection of half of the loss is postponed for some time. (At the same time, if the organization reports on a quarterly basis and the signing of the act of assignment of the claim was made before the middle of the quarter, both "halves" of the loss will be taken into account in expenses in one reporting period. For example, the act of assignment was signed on 9 August. On the same day, 50% of the loss is taken into account in non-operating expenses, and the remaining 50% - on September 26, 2010. That is, the entire loss will be taken into account in the declaration for nine months of 2010.)

When signing the act before the due date of payment (example 2), only part of the loss will be accepted for the purposes of calculating income tax. Thus, the taxpayer should "try" to sign it after the due date. Otherwise, he loses a certain amount. In relation to example 2, it is equal to 53,936 rubles. (269,681 rubles x 20%). This is the amount that the taxpayer will "overpay" for income tax due to the fact that 269,681 rubles. could not be included in non-operating expenses.

Note! The Ministry of Finance in its Letters (dated December 29, 2008 N 03-03-06 / 2/181, dated September 16, 2008 N 03-03-06 / 1/123) noted that the payment term under the contract, which is a criterion for determining the procedure for accounting for losses from the assignment of the right of claim for the purposes of taxation of profits, is determined on the basis of the terms of the relevant agreement in force on the date of the assignment of the right to claim. If such a period has been changed before the date of assignment of the right to claim in accordance with the provisions of Ch. 29 "Change and termination of the contract" of the Civil Code of the Russian Federation (including unilaterally), the payment period is determined in accordance with the terms of the contract, taking into account the changes made to it before the date of assignment of the right to claim.

On interest and penalties transferred under an assignment agreement

As mentioned above, according to Art. 384 of the Civil Code of the Russian Federation, in addition to the right to claim the amount of the principal debt, the rights to ensure the fulfillment of the obligation, as well as other rights related to the claim, including the right to unpaid interest, can also be transferred to the new creditor.

In this regard, the question arises: does the assignor have the right to include the amount of interest and penalties in the value of the assigned rights of claim?

The Ministry of Finance expressed its opinion on this issue in Letter No. 03-03-06/2/58 dated March 26, 2010. It says the following. In accordance with paragraph 3 of Art. 250 of the Tax Code of the Russian Federation, for the purposes of taxation of profits, non-operating income is taken into account, among other things, income in the form recognized by the debtor or payable by the debtor on the basis of a court decision that has entered into force, fines, penalties and (or) other sanctions for violation of contractual obligations, as well as compensation for loss or damage.

Thus, if the penalty (penalties, penalties) accrued for violation of the terms of the loan agreement was taken into account by the assignor as part of non-operating income, when the right to claim debt under the agreement is assigned to a new creditor, the amount of the penalty included in non-operating income is included in the amount of transferred debt.

If the penalty (fines, penalties) for violation of the terms of the contract was not taken into account by the assignor as part of non-operating income, then the amount of the penalty is not included in the debt transferred under the contract of assignment of the right to claim.

In another Letter (where a similar situation was discussed), the financiers emphasized that, with regard to contractual penalties, these amounts can be included in the value of the debt under the contract when determining the tax base for the assignment of the right to claim only if these penalties were recognized by the debtor or are subject to payment on the basis of a court decision that has entered into force (Letter dated February 1, 2010 N 03-03-06 / 2/20).

Assignee's tax records

We note that according to Art. 385 of the Civil Code of the Russian Federation, the debtor has the right not to fulfill the obligation to the new creditor until evidence of the transfer of the claim to this person is received (clause 1). The creditor who has assigned the claim to another person (assignee) is obliged to transfer to him the documents certifying the right to claim and to provide information relevant to the implementation of the claim (clause 2). The assignee has the right to demand the relevant documents from the assignor in order to avoid problems, firstly, with the presentation of claims to the debtor, and secondly, with the reflection in expenses for the purposes of calculating income tax of the amount of the acquired claim.

At the time of acquisition of the claim, the new creditor does not incur any costs. The assignee will take into account the income and expenses of this operation only in the following cases:

• further realization of the right of claim;
• termination of the obligation (assignment).

According to paragraph 3 of Art. 279 of the Tax Code of the Russian Federation, in the further exercise of the right to claim a debt, the taxpayer who bought this right considers this operation as the sale of financial services. Income (proceeds) from the sale of financial services is defined as the value of property due to this taxpayer upon the subsequent assignment of the right to claim or termination of the corresponding obligation. At the same time, when determining the tax base, the taxpayer has the right to reduce the income received from the realization of the right to claim by the amount of expenses for acquiring the said right.

In accordance with paragraph 5 of Art. 271 of the Tax Code of the Russian Federation, when a new creditor who has received the specified requirement sells financial services, the date of receipt of income is determined as the day of the subsequent assignment of this requirement or the execution by the debtor of this requirement.

As you can see, this norm of the Tax Code of the Russian Federation concerns assignments requirements. According to the Ministry of Finance (Letter of 06.08.2010 N 03-03-06 / 1/530), this rule is also applied when the obligation is repaid by the debtor: the taxpayer-assignee (new creditor) at the time of the debtor's fulfillment of the obligation acquired earlier under the assignment agreement reflects in the tax income tax base income from this operation and at the same time takes into account the costs associated with the acquisition of the said right to claim the debt.

Example 4. The organization is an assignee (new creditor) under an assignment agreement, having bought the borrower's debt to the assignor (original creditor) in the amount of 1,200,000 rubles. under a loan agreement. For this right of claim, the organization paid 1,150,000 rubles.

Thus, on October 1, 2010, the assignee organization will reflect as income the amount received from the debtor - 1,200,000 rubles. At the same time, income can be reduced by the amount of expenses associated with the acquisition of a monetary claim in the amount of 1,150,000 rubles.

What is the procedure for applying paragraph 5 of Art. 271 and paragraph 3 of Art. 279 of the Tax Code of the Russian Federation to determine the tax base for income tax by an organization - a new creditor that has received a monetary claim, if the debtor fulfills its obligations within several tax periods?

According to Art. 271 of the Tax Code of the Russian Federation for the purposes of taxation of profits under the accrual method, income is recognized in the reporting (tax) period in which they took place, regardless of the actual receipt of funds, other property (works, services) and (or) property rights (accrual method) .

If income relates to several reporting (tax) periods and the relationship between income and expenses cannot be clearly defined or is determined indirectly, income is distributed by the taxpayer independently, taking into account the principle of uniform recognition of income and expenses (clause 2, article 271 of the Tax Code of the Russian Federation).

According to paragraph 5 of Art. 271 of the Tax Code of the Russian Federation, when a new creditor who has received the specified requirement sells financial services, the date of receipt of income can be determined as the day of the subsequent assignment of this requirement or as the day of its execution by the debtor.

The debt repayment schedule, including installments, is essential condition the obligation itself.

Consequently, in the conditions of repayment by the debtor of the debt claim assigned to the new creditor in parts, the connection between income and expenses is determined only indirectly.

Thus, if the debtor actually repays the claim in installments over several tax periods, the taxpayer - the new creditor, when determining the tax base for income tax for the reporting (tax) period, must distribute the amount of income received as a result of this partial execution in proportion to the amount of expenses in the amount of the cost of the right of claim acquired by him (Letter of the UMNS for the city of Moscow dated April 12, 2004 N 26-12 / 24826).

L.E. Timofeeva

Journal Expert

"Income tax:

accounting for income and expenses