Calculation of transport legal costs. Transport legal expenses

If your company gets involved in a legal dispute (for example, with a counterparty, employee, tax inspectorate, or other government agency) and loses it, then such a loss may not be the only trouble. After all, the winner may demand reimbursement of expenses for the participation of his representative in the case. Moreover, such expenses sometimes exceed the amount of the claim itself. If your company is small and the manager is used to discussing all financial issues with the chief accountant, then he may come to you for advice on how to reduce the expenses incurred. If you want to help him with this, then together with him carefully study the received application (petition) of the other party for reimbursement of “representational” expenses and the copies of supporting documents attached to it. Here's what you need to pay attention to.

Fighting off some expenses

There are a number of expenses that in most cases the courts do not collect. Therefore, if you see them, then ask the court to exclude them from the amounts reimbursed to the winner. Here are examples of such expenses.

Expenses for the services of a representative who did not have the right to provide them for a fee.

Main types representative expenses are payment for his services, travel to and from court, accommodation at the location of the court and daily allowance Art. 106 Arbitration Procedure Code of the Russian Federation; Art. 94 Code of Civil Procedure of the Russian Federation.

Thus, the losing party should not reimburse the cost of the representative’s services when he was represented by:

• <или>in cases of a dispute with an organization or entrepreneur, a manager, lawyer or other employee of the organization or entrepreneur Resolution 9 of the AAS dated June 25, 2013 No. 09AP-16469/2013-GK; 6 AAS dated 08.11.2012 No. 06AP-4951/2012. After all, they perform representative functions for a salary, which they receive regardless of their participation in the process. By the way, you should not reimburse your salary, as well as a bonus, other bonus for participation in court, additional payment in the form of the difference between salary and average earnings during business trips and other similar payments within the framework of labor relations clause 11 of the Information Letter of the Presidium of the Supreme Arbitration Court dated December 5, 2007 No. 121 (hereinafter referred to as Information Letter No. 121); Resolution 7 AAS dated December 22, 2010 No. 07AP-9918/10; FAS VSO dated 07/08/2004 No. A58-3321/03-F02-2527/04-S1; Appeal ruling of the Supreme Court of the Republic of Buryatia dated December 10, 2012 No. 33-3264.

It is not difficult to find out who the head of the organization is. It is enough to look at the extract from the Unified State Register of Legal Entities (you received it at the very beginning of the trial);

• <или>in cases of dispute with a citizen:

• this citizen himself. Because you cannot provide services to yourself Resolution 19 of the AAS dated February 26, 2013 No. A14-13736/2011;
• his spouse Resolution of the FAS VSO dated May 17, 2012 No. A19-1676/10. An exception is cases when the spouse provided representation services as an entrepreneur and when a marriage contract was concluded between the spouses with the condition that their income is separate and not joint property.

Here’s what won’t prevent your organization from collecting the costs of a representative:

• the representative-citizen lacks legal education, and the representative-organization lacks legal services among the types of its activities listed in the charter and the Unified State Register of Legal Entities clause 10 of the Information Letter of the Presidium of the Supreme Arbitration Court dated August 13, 2004 No. 82 (hereinafter referred to as Information Letter No. 82); Resolution 4 of the AAS dated 01/09/2013 No. A19-12291/2012;
• representative of an individual - his relatives Resolution of the Federal Antimonopoly Service of North Kazakhstan Region dated June 20, 2012 No. A32-13597/2011; FAS VSO dated April 23, 2009 No. A33-3061/08-F02-1645/09;
• representative of the organization - its participants Resolution of the Federal Antimonopoly Service of the North-West District dated August 31, 2010 No. A56-92322/2009;
• hiring a representative if the other party has: a legal education (from a citizen) or their own lawyer or legal service (from an organization or entrepreneur) paragraph 10 of Information Letter No. 121; Resolution of the Federal Antimonopoly Service of the Moscow Region dated June 15, 2004 No. KA-A40/4746-04.

Expenses not related to the consideration of the case in court, including when such a connection is not visible from supporting documents. This is for example:

• pre-trial expenses (for payment of services for providing an opinion on the prospects of litigation, drawing up a pre-trial claim, etc.), if they are allocated among the services provided by the representative paragraph 8 of Information Letter No. 121; Resolution of the Federal Antimonopoly Service of the North-West District dated June 10, 2013 No. A56-55391/2012; FAS VSO dated November 27, 2012 No. A33-21086/2011; FAS UO dated October 31, 2012 No. F09-9408/12; 9 AAS dated November 22, 2012 No. 09AP-34701/2012-GK;
• expenses for the representative's travel to court by taxi or public transport, if neither the travel time nor the destination is visible from the travel documents Determination of the Leningrad Regional Court dated May 23, 2013 No. 33-2367/2013.

Expenses, the fact of payment of which the other party cannot document pp. 4, 5 Information Letter No. 121; Resolution of the Federal Antimonopoly Service of the Northern Territory of March 23, 2011 No. A21-5650/2009. This includes expenses the reimbursement of which is not provided for in the contract with the representative (for example, for his travel and accommodation).

Sometimes expenses can be disputed even if payment documents are available. For example, in one case, “representation” expenses were claimed for reimbursement by an organization that had not conducted any activity for several years. The court refused her, since she presented only cash receipts, and could not provide other documents confirming that these amounts were passed through the accounting department. Resolution of the Federal Antimonopoly Service of the Moscow Region dated March 11, 2010 No. KG-A40/762-10.

VAT included in expenses. Since if the other party applies the general regime, then it can take this amount as a deduction from Resolutions of the Federal Antimonopoly Service No. F09-8988/08 dated October 7, 2011, No. F09-5890/11 dated September 23, 2011; 13 AAS dated December 1, 2011 No. A56-73448/2010; 18 AAS dated February 28, 2008 No. 18AP-841/2008.

We strive to reduce costs due to their unreasonableness

Whether the costs of a representative are reasonable or not is decided by the court at its discretion, taking into account the specific circumstances of the cases. Part 2 Art. 110 Arbitration Procedure Code of the Russian Federation; Part 1 Art. 100 Code of Civil Procedure of the Russian Federation; clause 3 of Information Letter No. 121. Therefore, there is no ironclad evidence of excessive costs for a representative for the court.

The requirement of reasonableness must be met not only by the cost of the representative’s services, but also by the expenses associated with the representation (travel, accommodation, daily allowance). And you need to prepare evidence that the other party either could have avoided some expenses, or could have been more practical and spent much less. That is, that the costs are inappropriate and excessive.

We present our arguments to the court about the unreasonableness of the expenses.

The court may not take into account your arguments that the other party’s expenses for a representative are not economically feasible. But you still need to try to declare them. Here are some examples of arguments with which the courts have agreed.

For travel, hotel and per diem expenses:

• travel expenses of the other party in connection with filing a claim in court should not be reimbursed, since it is not necessary to personally file a claim in court Resolution of the FAS VSO dated July 6, 2011 No. A10-3255/2010;
• Living expenses and daily allowances should be reimbursed only for the days of court hearings (taking into account travel time). Therefore, if the representative was on a business trip for 2 days or more, and the meeting took place on one day, then living expenses and daily allowance must be reimbursed for only one day Resolution 13 AAS dated April 13, 2010 No. A21-4196/2009;
• if a representative on one day and in one court on behalf of the other party participated in several court hearings at once, including yours, then the costs of his travel, accommodation and daily allowance should be reduced (for example, if there were three cases together with yours, you must reimburse only 1/3 of such expenses) Resolution of the FAS ZSO dated July 22, 2011 No. A81-1372/2010. Similarly, if the employee representative was sent not only to court, but also on other matters (for example, to a meeting with a supplier), which can be found out from the official assignment Resolution of the Federal Antimonopoly Service of the Moscow Region dated January 24, 2011 No. KA-A40/16885-10.

Whether the other party is participating in other legal proceedings can be checked from the file of arbitration cases on the website of the Supreme Arbitration Court or the arbitration court of the corresponding region by typing the name of the organization (its TIN or OGRN) into a search engine. There, in the file cabinet, all the court documents in the case are placed, from which you can find out who acted as the representative of the other party;

• daily allowances are due only to employees, therefore they should not be paid to a representative under a civil law contract Resolution of the Federal Antimonopoly Service of the North-West District dated November 26, 2012 No. A05-4339/2011; FAS DVO dated February 21, 2012 No. F03-53/2012;
• daily allowances, if their amount is not established by the employment contract or local regulations of the party to the lawsuit, must be reimbursed at the rate provided for by law - 100 rubles. in a day subp. “b” clause 1 of Government Decree No. 729 dated 02.10.2002; Resolution of the Federal Antimonopoly Service No. F03-2147/2011 dated June 28, 2011.

For expenses for representative services:

• the amount of expenses is significant in relation to the amount of the claim itself (the amount of the fine being appealed) or exceeds it (this argument usually works only in courts of general jurisdiction) clause 3 of Rospotrebnadzor Letter dated May 28, 2010 No. 01/8017-10-32; Appeal ruling of the Astrakhan Regional Court dated June 19, 2013 No. 33-1805/2013;
• the representative artificially split up the documents he compiled (in particular, he drew up three petitions, while it was possible to get by with one general one) or the services provided (for example, he was paid separately for the services of familiarizing himself with the case materials and the services of judicial representation, although, according to in fact, the latter include the former) Resolution of the Federal Antimonopoly Service ZSO dated October 7, 2011 No. A03-18191/2009;
• the representative was paid for drawing up documents that were not accepted by the court or that were withdrawn by the representative himself;
• the representative was paid for several court hearings, which took place because he also filed a petition to postpone the consideration of cases and Resolution 13 of the AAS dated 02/01/2011 No. A56-22504/2008; Determination of the St. Petersburg City Court dated April 16, 2013 No. 33-5097/2013;
• the agreement stipulates that the representative receives a fixed amount of remuneration for representation in all courts, but the case has not passed all instances Resolution 4 of the AAS dated February 11, 2013 No. A58-711/2011;
• The representative, in parallel with your case, also participated in other cases, and at the same time, the agreement with him (acts, payment documents) does not indicate the case number or the nature of the dispute. In this case, it is not clear for which legal process the representative received money, or to which case his overhead expenses relate. Therefore, there is a possibility that the court will either not recover such expenses from your company, or will still recover them, but within reasonable limits. Resolution of the Federal Antimonopoly Service of the North-West District dated July 4, 2011 No. A56-36407/2008; 8 AAS dated January 15, 2010 No. 08AP-7682/2009, No. 08AP-7681/2009, No. 08AP-7678/2009;
• the representative worked carelessly, for example Resolution 14 of the AAS dated June 20, 2012 No. A13-2668/2011; 13 AAS dated January 19, 2011 No. A56-37464/2009: his participation in court was limited to presence; he was only at one meeting, although according to the terms of the agreement he was supposed to participate in all; his side’s demands were satisfied only in part; the documents he compiled do not contain references to legal norms; his complaint repeats the arguments of the statement of claim or another complaint; they have not responded to your claim or complaint; the documents he prepared were not sent to you in advance for review, but were presented only at the meeting, etc.;
• The representative spent little time on your case because it was not complicated. The following may indicate the simplicity of the case: your company admitted the claim; the case was resolved in one meeting; the representative did not have to draw up a lot of documents or collect a lot of evidence; the dispute was about collecting a debt from your company, despite the fact that the other party had documents confirming the debt Resolution of the Presidium of the Supreme Arbitration Court of July 24, 2012 No. 2544/12,;
• the other side hired two representatives, although the dispute was not complicated, or their own lawyers also participated in the case, so they could get by with one representative Resolution 11 AAS dated April 28, 2011 No. A65-26171/2007.

We present written evidence to the court

Keep in mind that collecting them will take some time. You will need documents that show the following:

• prices for representative services exceed market prices for similar services and clause 20 of Information Letter No. 82. This is for example:

The decision of the regional chamber of lawyers to approve the minimum rates of remuneration for legal assistance Resolution 3 AAS dated May 20, 2013 No. A33-8384/2012;

Certificate from the Chamber of Commerce and Industry on the average prices of legal services in the region;

It is pointless to present to the court documents on the average salary of in-house lawyers to confirm the unreasonableness of expenses for a representative. The services of third-party specialists are important. Moreover, for comparison, you need to select prices from companies of exactly the same rating level according to the criteria of fame, as well as quality of service. Resolution of the Federal Antimonopoly Service of Ukraine dated February 25, 2013 No. F09-3637/11;

• the representative could stay: in a cheaper hotel; in a standard room, not a suite; in a single room, not a double room. This can be confirmed by printouts of price lists from the websites of the same and other hotels. Resolution of the Federal Antimonopoly Service of Ukraine dated February 22, 2013 No. F09-2474/12;
• the representative had the opportunity to get there by a cheaper means of transport (for example, it was unreasonable to take a taxi or a luxury compartment instead of a regular train compartment) Resolution of the Federal Antimonopoly Service of the Moscow Region dated 02/08/2013 No. A40-14577/12-35-130; FAS PO dated May 30, 2011 No. A12-23137/2009. This can be confirmed by:

Certificates from carriers regarding the availability of air tickets for a direct flight, tickets for cheaper train compartments, etc. on the required date;

Certificates about the cost of services from other carriers, including alternative modes of transport;

Printouts from websites of public and other transport schedules and fares.

Courts often disagree with arguments about the obligation of the other party to choose the cheapest transport and hotel and recognize the right to independently determine the most suitable place of residence, type of transport and level of comfort (for example, flying in business class rather than economy class) Resolution of the Federal Antimonopoly Service of the Moscow Region dated October 19, 2012 No. A40-63775/07-80-266.

As you can see, in order to reduce the legal costs of a representative you are required to recover, sometimes you need to play detective - pay attention to the little things, look for additional information, etc.

Document all information found in your favor in writing (for example, in the form of an objection to a statement or petition) and present it to the court and the other party.

By the way, all our recommendations apply to ordinary citizens. Therefore, they may also be useful to you if you are suing someone and do not win the dispute. But remember: if a dispute arises from an employment relationship, then no legal costs can be recovered from you as an employee under any circumstances. Art. 393 Labor Code of the Russian Federation.

Reimbursement of transportation costs under a supply agreement represents the return of funds from the buyer to the supplier. This procedure has certain design features depending on the selected option for refunding supply costs. Particular importance is attached to re-invoicing in the name of the buyer.

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Options

The buyer can reimburse transportation costs by choosing one of several methods. When the buyer transports the goods independently, all questions automatically disappear.

The procedure for compensation of costs incurred by the supplier depends on the delivery option:

• delivery of goods is organized by the supplier with his own resources;
• The delivery of goods is organized by the supplier using a third party as a carrier.

For a more understandable perception of the information, options for reimbursement of transport costs are presented in the form of a table.

Each of the methods involves certain actions to be reflected in the accounting and tax records of the organization.

Own costs

Before making a delivery, you must choose how it will be reflected.

There are two ways to account for supply costs:

• by written agreement, including in the price of the product;
• by written agreement (counted separately).

Transport services included in the price of the product must be reflected in the sales contract as a separate line. It is necessary to make a note about the amount for transportation services.

In this case, the cost of the goods including VAT is indicated, the total amount payable from the buyer is calculated and the amount of transportation is indicated. You can also make a note for the buyer that if the product is returned, shipping costs will not be refunded.

Failure to allocate the amount of transport services in a separate line can result in the following troubles:

• if the buyer returns the products, he will have to return the entire amount back, including delivery costs;
• The tax office will not count this amount as a deduction when calculating income tax.

The best option would be to conclude a separate contract/agreement for the transportation of sold goods. It specifies all the supplier's costs and the buyer's obligation to reimburse. In this case, the accounting for sales and transportation expenses will be separated.

Documentation

In the case of organizing the accounting of transport services included in the price of products, the document accompanying the cargo will be the consignment note.

It is impossible to distinguish between transport services and the cost of goods, since this paper is intended to reflect the movement of material assets, not services. To confirm expenses to the tax office, you must additionally issue a waybill.

When organizing accounting for transport services using an additional contract/agreement, primary documentation can be prepared in three ways:

• filling out the consignment note;
• filling out separately the goods and transport invoices;
• filling out the consignment note and the act, which will reflect transport services.

Each of the above documents must be recorded in the sales book.

Reissue of transport invoices to the buyer

If the transportation of sold goods is carried out by a third-party organization, which acts as a carrier in the seller-buyer relationship, reimbursement of costs for transport services occurs according to the scheme of re-billing for services provided.

Re-issuance of transport invoices without tax risks for both parties can be done in two ways:

• intermediary services;
• change in price for goods.

Each of them requires special attention.

Intermediary services

When concluding an agreement with the buyer, it is necessary to add a provision that the supplier undertakes the responsibility to find a carrier company and pay for their services. That is, he presents himself as a mediator.

In this case, the amount of the supplier's remuneration must be indicated. The Civil Code of the Russian Federation indicates that the services of an intermediary cannot be free of charge.

The following primary documents are transferred to the buyer:

• consignment note from the supplier for the provision of transport services;
• a copy of the consignment note received from the carrier;
• intermediary's report on fulfilled obligations.

Important: When issuing an invoice to the buyer from the seller, the date must be indicated the same as the documents received from the carrier.

Change in price for an item

The second option for re-invoicing for the delivery of goods to the buyer is to change their price. This option is used less frequently than intermediary services, but it requires less paperwork.

The Civil Code allows changes to be made to the purchase and sale agreement regarding the price of products in exceptional situations.

You can simply add a clause that as a result of delivery by the supplier, payment for the product automatically becomes greater by the amount spent on transport.

At the moment the goods are transferred to the buyer, the amount of the supplier’s costs will already be known. It is distributed equally to each type of goods and included in the consignment note.

Changes can be made in two ways:

• correct the information and issue a new document;
• make changes to the previously issued document by the supplier (in copies of both parties).

The main thing is not to reflect transport costs on the invoice as a separate line. Then an invoice is issued to the buyer for payment, which is noted in the sales journal. A note regarding receipt of an invoice from the carrier is made in the purchase log.

Reimbursement of transportation costs under the supply agreement

The procedure and conditions for reimbursement of supply costs are also prescribed in the law protecting consumer rights.

Situations will differ depending on:

• from the place of purchase (remotely or at the seller’s premises);
• conditions for the return/exchange of goods (with or without quality claims).

Legislation that protects consumer rights indicates the obligation to reimburse payment for delivery of products to the purchaser and/or seller. If there is a buyer's refusal of the purchased product.

For a quality product when purchased at a distance

The Federal Law for the Protection of Buyers' Rights determines that if the purchase was not made on the seller's premises (for example, via the Internet), the consumer has the right to return it.

Provided that the product does not have any deviations in quality standards, the money spent by the consumer on delivery fees will not be returned to him. In such situations, only the amount paid for the product itself is returned, provided that the packaging, configuration and presentation of the product are preserved.

For goods of inadequate quality when ordering remotely

According to the law of consumer rights, if a product was purchased remotely (for example, through an online store), the consumer can return it.

If there are complaints about the quality of the goods, reimbursement of transportation costs in favor of the buyer is made in full. If, by agreement, the delivery of goods was made at the expense of the buyer.

Reimbursement of transportation costs for defective goods

The buyer pays transportation costs if he purchased goods of large weight and size (heavier than 5 kg).

In this case, situations of moving a purchase are considered for:

• repair;
• replacements;
• markdowns;
• return to the consumer.

Initially, the consumer can independently pay for the transportation of low-quality purchases. As a result, he has the right to demand compensation for expenses incurred from the seller (together with compensation for moral damage).

For goods of proper/inadequate quality when purchased in a store (buyer from another city)

If the buyer went to buy a specific product from another city to a store, and then decided to return it back, he cannot demand reimbursement of transportation costs (for moving from one locality to another).

The quality of the product does not matter at all.

Distribution of transport costs

Shipping costs may be shared between the parties. Most often, this method is used when involving third-party organizations in the transportation of goods.

IS IT WORTH GOING TO COURT BY TAXI?

The Arbitration Court of the Volga District clarified the process of collecting legal costs for hiring a vehicle in which a lawyer travels to court hearings

According to the expert, a party to a case has the right to choose which type of transport is most suitable for it. In this case, the reasonable limit will not be exceeded even if the party also includes the provision of bedding on trains and service fees if the tickets were purchased through an intermediary organization.

Based on the results of the consideration by the Arbitration Court of the Volgograd Region of the dispute between SERINO LLC and the administration of the urban settlement, a decision was made in favor of the company to force the administration to conclude a contract for the sale and purchase of a land plot. Taking advantage of its right to reimbursement of legal expenses, the company applied for the recovery of 207 thousand rubles, including 24 thousand spent on a taxi due to the need for the lawyer to travel to another city in which the defendant’s appeal was considered.

The court partially satisfied the demands for reimbursement of legal fees and state fees in the amount of 113 thousand rubles, but transportation costs were not taken into account. The court found that the “hire of a vehicle with crew” for a public interest lawyer was unnecessary because the city had a public transportation system.

The Arbitration Court of the Volga District overturned this decision regarding the refusal to recover 24 thousand rubles and sent the case for a new consideration, citing Resolution of the Plenum of the Armed Forces of the Russian Federation dated January 21, 2016 No. 1 “On some issues of application of the legislation on reimbursement of costs associated with the consideration of the case ", according to which the transportation and living expenses of a representative of one party, as in the case of other expenses, are reimbursed by the other party to the dispute within reasonable limits, based on the prices that are usually set for transport services.

It is emphasized that one of the criteria of reasonableness when assessing such costs is the cost of economical transport services, but economy does not only mean the lowest cost. It is necessary to take into account the time of departure and arrival, the comfort of the vehicle, efficiency, as well as the extent to which the chosen type of transport allows the representative to appear at the court hearing in a “condition that allows him to perform his functions.”

The current legislation does not limit the person participating in the case in choosing the method of travel to the place of the court hearing, the court concluded. The right to choose transport must belong to the applicant and is determined by the criteria of necessity and reasonableness, if this does not go beyond the scope of business customs and does not bear any signs of excessive expense.

The district court also recalled that, according to Art. 65 of the Arbitration Procedure Code of the Russian Federation, each person participating in the case must prove the circumstances to which he refers as justification for his claims and objections. In this case, the fact that this type of transport was not optimal for the opposite side of the case was not proven.

The arrival of a participant in the process at the place of the court hearing from another city by bus, train or plane can be proven by attaching travel documents (tickets) to the case materials. In the case where travel for purposes related to a court case is carried out in a personal car, the task of proving transportation expenses becomes more complicated, since there are no tickets, and receipts for gasoline confirm only its purchase, but not the trip from point A to point B using it gasoline.

Regarding transport legal expenses incurred using a personal car, the following must be proven:
- ownership of the car and the fact of its use;
- the amount of fuel costs associated with using the car;
- fact of costs incurred.

Use of a personal vehicle can be proven through parking receipts or through witness testimony. As a rule, witnesses for their part are brought to court in their own car. At the court hearing, witnesses are asked an additional question about how they arrived at the court, and the corresponding testimony is recorded in the minutes of the court session. The vehicle's technical passport, driver's license and power of attorney (if the driver drives the car under a power of attorney) are also attached to the case materials.

The amount of fuel consumption is determined in calculation of transport legal costs. Such a document is compiled independently, using the technical characteristics of the car (fuel consumption per kilometer) and information about the length of the route, which can be found, for example, on the Internet.

Actual gasoline costs are confirmed by receipts from the gas station.

As an example of reimbursement of transport legal expenses ( "travel expenses"- in the terminology of the Code of Civil Procedure) I will cite case 2-1282/12 (on the restoration of electricity supply to an individual), considered in the Istra City Court on April 24, 2012. IN petition plaintiff's claims for recovery of damages(claim, subject to duty) and to recover compensation for legal expenses were combined. Calculation of transport legal costs contained: an indication of the make and technical characteristics of the car; detailed routes to each turning point along the way; the actual calculation of fuel costs, obtained by multiplying the distance traveled by the standard consumption for a given driving mode. I note that legal transportation costs included not only trips to court, but even the plaintiff’s trip to the village to inspect the scene of the incident, where the chairman of the board cut off the power supply to the plaintiff’s household by breaking the lock on the electrical cabinet. The requirements were satisfied, including in terms of compensation for losses and all transportation costs: the court's decision .

Estimated legal expenses
non-refundable

According to clause 1 of Article 88 of the Code of Civil Procedure of the Russian Federation "court costs consist of state fees and costs associated with the consideration of the case". The division of legal costs into components is due to the fact that the legal content of the concepts "duty" And "legal costs" various. The duty is a kind of tax on justice; it is withheld into state revenue without fail; benefits for its payment can be provided only on the grounds provided for by the legislation on taxes and fees (Article 89 of the Civil Code of the Russian Federation). The amount of the duty is established by the state (tax code) and is not subject to proof.

In contrast to the requirement to pay state fees, the parties to the proceedings bear the costs of the trial on their own initiative and are free to determine the breadth of necessary procedural actions, as well as the associated legal costs. Since there is no standard for the amount of legal costs, such costs and their amount, in order to recover compensation from the opposite side, must be confirmed in court by relevant evidence.

Unless otherwise established, it is considered that the costs of representation, travel, postal services, etc., associated with the conduct of the case in court, are precisely costs, that is, these costs punch a hole in the budget of the participant in the process. In the same case, when legal costs are already included in the budget of a non-profit organization (in the SNT estimate), there is no need to talk about them as costs. The legal expenses provided for in the estimate are not subject to reimbursement for two reasons: 1) such reimbursement leads to unjust enrichment of a non-profit organization, which receives compensation for legal expenses twice - from contributions from members and from the losing party in the lawsuit; 2) if the losing party is a member of a non-profit organization (gardening partnership), then such a losing party is subject to a double obligation - reimbursement of legal expenses in the form of a contribution approved by the meeting and also in the form of compensation to the winning party in court.

Thus, an income and expense estimate (or minutes of a meeting) attached to the case with a record of a contribution for legal expenses is the basis for a non-profit organization’s refusal to satisfy the claim for recovery of compensation for legal costs from a member of this non-profit organization who lost in a lawsuit. I note that providing the court with such an estimate or protocol will be the responsibility of the losing member of the SNT.

As an example to what has been said, I will give Appeal decision (on collection of a fee from the gardener, on legal costs for representation)

Arbitration Court of the Penza Region

DEFINITION

on the distribution of legal costs

Case No. A49-4146/2015

Arbitration Court of the Penza Region, composed of judge Kornienko D.V., with the minutes of the court session being kept by assistant judge Dementieva Yu.A.,

having considered the application of the individual entrepreneur Alexander Sergeevich Nevkin for the recovery of legal costs in case NoA49-4146/2015 on the claim of the individual entrepreneur Alexander Sergeevich Nevkin against the individual entrepreneur Valery Petrovich Karavaitsev for the recovery of 515,080 rubles,

with the participation of: from the plaintiff: did not appear, notified;

from the defendant: Andryushin A.M., representative by proxy,

installed:

Individual entrepreneur Nevkin Alexander Sergeevich filed a claim with the Arbitration Court of the Penza Region against individual entrepreneur Valery Petrovich Karavaitsev for the recovery of damages in the amount of 515,080 rubles.

By the decision of the Arbitration Court of the Penza Region dated 06/07/2016, the claims of individual entrepreneur Nevkin A.S. completely satisfied. Losses in the amount of 515,080 rubles, as well as 13,302 rubles were recovered from individual entrepreneur Valery Petrovich Karavaitsev in favor of individual entrepreneur Alexander Sergeevich Nevkin. towards reimbursement of expenses for payment of state duty and legal costs in the form of payment for the cost of examinations in the amount of 46,160 rubles.

By the decision of the Eleventh Arbitration Court of Appeal dated August 05, 2016, the decision of the trial court was left unchanged.

By the resolution of the Arbitration Court of the Volga District dated November 10, 2016, the decision of the Arbitration Court of the Penza Region dated June 7, 2016 and the resolution

The Eleventh Arbitration Court of Appeal dated 08/05/2016 was left unchanged, the cassation appeal was not satisfied.

On August 16, 2016, the arbitration court received an application from individual entrepreneur Nevkin A.S. on the recovery from defendant 2 of legal costs in the amount of 116,500 rubles.

At the court hearing on November 14, 2016. the plaintiff did not appear and was duly notified of the place and time of the court hearing in accordance with Art. 123 of the Arbitration Procedural Code of the Russian Federation.

Guided by Art. Art. 123, 156 of the Arbitration Procedural Code of the Russian Federation, the arbitration court, taking into account the opinion of the defendant, considers it possible to consider the application for the collection of legal costs in the absence of the plaintiff’s representatives.

The defendant objected to the collection of legal costs at the court hearing and believes that the legal costs claimed for collection by the plaintiff are excessive and unfounded. In support of the excessive legal costs, he provided responses from law firms about the prices for the services they provide for representation in the arbitration court, as well as calculations of travel expenses.

At the court hearing on November 14, 2016. a break was announced until 12:15. November 21, 2016

After the break, the court session continued with the participation of the former representative of the defendant, in the absence of representatives of the plaintiff.

After hearing the representative of the defendant, examining the case materials, the evidence presented regarding the payment of legal costs incurred, the arbitration court established.

In accordance with Article 101 of the Arbitration Procedural Code of the Russian Federation, court costs consist of state fees and legal costs associated with the consideration of the case by the arbitration court.

Legal expenses incurred by persons participating in the case, in whose favor a judicial act was adopted, are recovered by the arbitration court from the outside.

Legal costs incurred by persons participating in the case in connection with the consideration of the appeal or cassation complaint are distributed according to the rules established by this article (Part 5 of Article 110 of the Arbitration Procedure Code of the Russian Federation).

The list of expenses related to legal costs is determined by Art. 106 of the Arbitration Procedural Code of the Russian Federation. This list is not exhaustive, and therefore may include: monetary expenses for the services of lawyers and other persons providing legal assistance, travel and accommodation expenses, as well as daily allowances paid to the representative in connection with his participation in the consideration of the case in the arbitration court.

According to Part 1 of Art. 65 of the Arbitration Procedural Code of the Russian Federation, paragraph 3 of the Information Letter of the Supreme Arbitration Court of the Russian Federation No. 121 dated 05.12.07 “Review of judicial practice on issues related to the distribution between the parties of legal costs for the services of lawyers and other persons acting as representatives in arbitration courts”, the person demanding reimbursement of expenses for the representative’s services proves their amount and the fact of payment. The other party has the right to declare that the amount required is excessive and to justify, in its opinion, the amount of expenses incurred by the applicant that is reasonable.

To confirm the validity of the legal expenses incurred, the plaintiff presented an agreement for the provision of legal services No. 9/13 dated 05.27.2013, an act of services rendered in the amount of 86,500 rubles, as well as a receipt for the expense cash order No. 121 dated 06.12.2016. on payment to the contractor under this agreement of 86,500 rubles.

In accordance with Part 2 of Article 110 of the Arbitration Procedural Code of the Russian Federation, the costs of paying for the services of a representative incurred by the person in whose favor the judicial act was adopted are recovered by the arbitration court from another person participating in the case, within reasonable limits.

Thus, the legislator has entrusted the court with the obligation to assess the reasonable limits of legal costs, which is one of the legal methods provided for by law aimed at preventing the unreasonable overestimation of the amount of payment for the services of a representative and thereby implementing the requirement of Part 3 of Art. 17 of the Constitution of the Russian Federation (definition of the Constitutional Court of the Russian Federation dated December 21, 2004 No. 454 - On “On the refusal to accept for consideration the complaint of the limited liability company “Trust” for violation of constitutional rights and freedoms by part 2 of Article 110 of the Arbitration Procedural Code of the Russian Federation”).

In paragraph 11 of the Resolution of the Plenum of the Supreme Court of the Russian Federation on January 21, 2016. No. 1 also states that the court has the right to reduce the amount of legal costs, including the costs of paying for the services of a representative, if the amount claimed for collection, as follows from the evidence available in the case, is clearly unreasonable (excessive) in nature.

Separate criteria for determining reasonable limits of legal costs are named in paragraph 20 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated August 13, 2004. No82 “On some issues of application of the Arbitration Procedural Code of the Russian Federation”: time that a qualified specialist could spend on preparing materials; the prevailing cost of paying lawyers in the region; available information from statistical authorities on prices on the legal services market; duration of consideration and complexity of the case.

At the same time, based on the principle of adversarial parties, all participants in the process have the right to present evidence confirming or refuting these criteria.

The defendant, objecting to the satisfaction of the application for the recovery of legal costs in the declared amount, points to their overestimation and the inconsistency presented by the plaintiff to justify the proportionality of information from other law firms about the current cost of paying for lawyers' services in the region. In support of this, he presented an agreement for the provision of legal services, concluded by the defendant with businessman A.M. Andryushin. after 4 more than 6 months have passed from the date of acceptance of the claim for proceedings in the amount of 45,000 rubles, as well as information from legal entities, according to which the cost of legal services ranges from 5 to 10 percent of the price of the claim.

Having examined the evidence presented by the parties, based on the nature and complexity of the dispute, the volume of procedural documents prepared by the plaintiff’s representative, the collected evidence, the presence of evidence of the reasonableness of legal costs, as well as the prevailing judicial practice in the region for reimbursement of expenses for the representative’s services, the court comes to the conclusion that the plaintiff’s claim to pay for the representative’s services the amount is RUB 86,500. meets the criteria of reasonableness and proportionality.

The plaintiff also claimed reimbursement of travel expenses, which amounted to 30,000 rubles, and was confirmed by relevant financial documents presented in the case materials (receipts for taxi payments of 2,000 rubles per trip).

As the Plenum of the Supreme Court of the Russian Federation indicated in paragraph 14 of the resolution dated January 21, 2016. No1 “On some issues of application of legislation on reimbursement of costs associated with the consideration of a case”, transportation costs and living expenses of a representative of a party are reimbursed by the other party to the dispute within reasonable limits based on the prices that are usually set for transport services, as well as prices for services related with provision of accommodation in the place (region) in which they are actually provided.

Sending your representative to another city to participate in court hearings involves providing the necessary level of comfort,

justified by a reasonable desire to guarantee the effective implementation of the tasks of representation in the arbitration court; the choice of a specific type of transport, as well as the optimal travel route, is the right of the person involved in the matter and may be determined by various circumstances, financial and time priorities, availability of flights, tickets on sale, etc.

The ability to use public transport does not preclude the reasonableness of the costs incurred by the plaintiff. In addition, the defendant did not present any objections or any evidence indicating the illegality of using taxi services to travel to the place of trial. In this connection, the court has no grounds for recognizing these expenses as unreasonable.

Having examined and assessed in the manner provided for in Art. 71 of the Arbitration Procedural Code of the Russian Federation, factual circumstances in conjunction with the evidence presented in the case, taking into account the actual services provided and expenses incurred, the court recognizes the application for reimbursement of legal expenses as subject to satisfaction in the declared amount.

Taking into account the above, guided by Articles 101, 102, 106, Articles 110, 184-186 of the Arbitration Procedure Code of the Russian Federation, the arbitration court

O P R E D E L I L:

The application of individual entrepreneur Alexander Sergeevich Nevkin for the recovery of legal costs is fully satisfied.

To recover from the individual entrepreneur Valery Petrovich Karavaitsev in favor of the individual entrepreneur Alexander Sergeevich Nevkin legal costs in the amount of 116,500 rubles.

The ruling can be appealed to the Eleventh Arbitration Court of Appeal within one month from the date of issuance through the Arbitration Court of the Penza Region.

Judge D.V. Kornienko