A third party paid for the debtor. Procedure for payment of debt by a third party. What the law says
Marina Ozerova
editor-in-chief of the Internet portal
This time we decided to write an article devoted to the situation when the seller (executor) receives payment not from his debtor. We tried to consider possible options and their consequences...
Receipt of payment to the seller not from the debtor possible in two cases:
1) when transferring debt by a third party;
2) when transferring a debt to another person.
Let's look at each of these options in more detail.
Payment by a third party
The Civil Code of the Russian Federation establishes that the fulfillment of an obligation can be assigned by the debtor to a third party if the law, other legal acts, the terms of the obligation or its essence do not imply that the debtor is obligated to fulfill the obligation personally. In this case, the creditor (seller) is obliged to accept the performance offered for the debtor by a third party (clause 1 of Article 313 of the Civil Code of the Russian Federation).
Let's list main signs of payment of the counterparty's debt by a third party:
1) a third party fulfills the debtor’s obligation to pay for goods (work, services) on the basis of a letter from the debtor with a corresponding request.
In such a letter, the debtor usually indicates:
The amount to be transferred, including VAT;
Details of the agreement under which payment is made to the seller;
Details of the seller to whose address a certain amount should be transferred.
2) the primary documents indicate that the fulfillment of the obligation by a third party is carried out for the debtor;
3) when paying by a third party, the debtor remains the same, original person. For a third party, this is a transfer of funds for someone else’s obligations, and not for one’s own;
4) the creditor (seller) is obliged to accept the fulfillment of the obligation by a third party. Except if it does not follow from the law, the contract and the very essence of the obligation that the obligation is fulfilled by the debtor personally.
Now let's see what accounting entries the seller should make. We assume that calculations are made when the goods are shipped (work is completed, services are provided).
Dt sch. 62 "Settlements with buyers and customers" Set of accounts. 90 "Sales"
The amount of accrued VAT on goods sold (work, services);
For the amount received from a third party as payment for the debtor;
The amount of debt paid for the debtor by a third party.
In case the seller receives advance payment for goods (works, services) from a third party (for the buyer), then in this case we recommend including the amount of such prepayment in the VAT tax base. This will avoid unnecessary claims from tax authorities. Indeed, at present, VAT is determined at the time of receipt of payment for upcoming deliveries of goods (performance of work, provision of services) - paragraphs. 2 p. 1 art. 167 Tax Code of the Russian Federation.
In this case, when receiving an advance payment from a third party, the seller needs to make the following transactions:
Dt sch. 51 "Current accounts" Set of accounts. 76 "Settlements with various debtors and creditors"
The amount of the advance payment received from a third party for the buyer;
Dt sch. 76 "Settlements with various debtors and creditors" Set of accounts. 62 "Settlements with buyers and customers"
For the amount of prepayment received from a third party and offset against the receipt of prepayment from the buyer;
Dt sch. 76 "Settlements with various debtors and creditors" Set of accounts. 68 "Calculations for taxes and fees"
The amount of accrued VAT on the prepayment received.
In IAS “Consulting. Standard" information on the fulfillment of an obligation by a third party is set out in the certificate "Fulfillment of an obligation by a third party" in the section "Fulfillment of an obligation".
Debt transfer
The main difference between transfer of debt and payment of debt by a third party is that the obligation of the original debtor to the creditor (seller) terminates. And instead of the original debtor, a new debtor appears, to whom the debt is transferred. Another important difference is that the original debtor can transfer his debt to another person only with the consent of the creditor (seller) - clause 1 of Art. 391 Civil Code of the Russian Federation.
Let's give main features of debt transfer:
1) an agreement on the transfer of debt is concluded. Moreover, the form of such an agreement must correspond to the form of the main obligation (Article 391 of the Civil Code of the Russian Federation);
2) the original debtor is not mentioned in the primary documents for the execution of the contract. The documents include the creditor (seller) and the new debtor;
3) the debt of the original debtor terminates at the moment of signing the agreement on the transfer of debt;
4) to transfer the debt, the consent of the creditor (seller) is required.
In this regard, in practice, a so-called tripartite agreement is often concluded, the parties to which are the creditor (seller), the original debtor and the new debtor.
When transferring debt one debatable question should be decided: Is it possible to transfer part of the debt to a new debtor? Or should the debt be transferred in full?
Let us immediately note that the Civil Code of the Russian Federation does not allow an unambiguous answer to this question.
Therefore, expert opinions were divided.
Some believe that when transferring a debt, there should be a complete replacement of the person in the obligation. That is, the debt, as well as the obligation to pay penalties, must be transferred in full. Supporters of this position point out that if only part of the debt is transferred through the transfer of debt, then this contradicts Chapter. 24 “Change of persons in an obligation” of the Civil Code of the Russian Federation, which provides for the complete withdrawal of a person from the obligation. Therefore, in case of partial transfer of debt, the agreement on transfer of debt must be recognized as an invalid (void) transaction.
Others have the opposite opinion. Since the Civil Code of the Russian Federation does not directly prohibit partial transfer of debt, if the relevant provisions are included in the agreement and the creditor agrees to this, such a situation is quite possible. Then two persons will act as the debtor - the original and the new one.
The best part is that the second group includes judges of the highest authority. For example, in the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 25, 2001 No. 3764/01, the judges came to the conclusion that since the creditor had received consent to a partial transfer of the debt, there were no grounds for recognizing the agreement on the transfer of the debt as invalid (void).
However, it should be borne in mind that if only the debt for the payment of penalties is transferred to another person, without transferring the principal debt, then such an agreement on the transfer of debt will be invalid. An example of this is the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 2, 1997 No. 3798/97.
When transferring a debt, the seller’s accounting will reflect the following accounting entries (assume that the original debtor is company “A”, and the new debtor is company “B”):
Dt sch. 62 “Settlements with buyers and customers”, subaccount “Settlements with company “A” Account account. 90 "Sales"
The amount of proceeds from the sale of goods (works, services);
Dt sch. 90 "Sales", subaccount "VAT" Account number. 68 "Calculations for taxes and fees"
The amount of accrued VAT on goods sold (work, services).
The change of debtor should be reflected in records in analytical accounting (that is, internal records in the account “Settlements with buyers and customers”).
As a general rule, such an entry is made on the basis of an agreement on the transfer of debt.
Dt sch. 62 “Settlements with buyers and customers”, subaccount “Settlements with organization “B” Account account. 62 "Settlements with buyers and customers", subaccount "Settlements with organization "A"
For the amount of debt that was transferred from company “A” to company “B” (the posting is made on the date of signing the agreement on debt transfer).
Please note: the invoice for goods sold (work, services) should be issued to the seller in the name of the original debtor (in our case, company “A”). After all, it is company “A” that is the buyer of goods (consumer of works, services).
In this case, the seller has no special features regarding the calculation and payment of VAT.
In IAS “Consulting. Standard" information on the transfer of debt is set out in the certificate "Transfer of debt" in the section "Change of persons in an obligation". Accounting records for the transfer of debt from the original and new debtor can be viewed in the “Accounting” section of the “Debt Transfer” certificate.
Magazine "CALCULATION"
Let me note right away: an accountant does not have the right to make such payments only of his own free will, because he is not the head of the organization. Therefore, we will consider situations when the initiative to pay third parties comes from the company’s counterparties or from its management.
First, let's clarify who third parties are and what is meant by this term. This concept is often used in the text of the Civil Code, but the Code does not contain its definition. However, from the context of the provisions of the Civil Code, as well as other laws, such as the Civil Procedure Code and the Arbitration Procedure Code, it follows that a third party is a person who is not in a contractual relationship with the company in relation to a specific obligation. It follows from this that the initiative to pay in favor of a third party will most likely come from some counterparty of the company. For example, a supplier may ask a partner to pay off the debt for him under his agreement with a heat supply organization. The latter in this case is a third party for the organization that makes the payment. In this article we will consider such payments for which the payer is not the debtor.
Like it or not
“Is this legal? What if the company doesn’t want to pay that much?” – these are the first questions that arise for a company’s accountant. To answer them you need to pay attention to the Civil Code. It contains Article 313 “Fulfillment of an obligation by a third party.” It says that “the fulfillment of an obligation may be entrusted by the debtor to a third party, unless the law, other legal acts, the terms of the obligation or its essence imply that the debtor is obliged to fulfill the obligation personally. In this case, the creditor is obliged to accept the performance offered for the debtor by a third party” (Clause 1 of Article 313 of the Civil Code of the Russian Federation). As we can see, payment for a counterparty (supplier or contractor) to any third party is not prohibited by law. Moreover, this third party is obliged to accept such payment. In the same way, the organization that is now the payer will be obliged to accept payment if it is received for the debt of the counterparty-buyer from a third party.
In addition, in some cases, an organization may, on its own initiative, make a payment to a third party. A company has such a right in a situation where it is in danger of losing its right to the property of a counterparty who is a debtor (clause 2 of Article 313 of the Civil Code of the Russian Federation).
According to the norms of the Civil Code, “actions without an order, other indication or previously promised consent of the interested person in order to prevent harm to his person or property, fulfillment of his obligation or in his other non-illegal interests (actions in the interests of others) must be performed by the interested person, based on their obvious benefit or benefit and actual or probable intentions for the person concerned and with the care and prudence necessary under the circumstances of the case” (Clause 1 of Article 980 of the Civil Code of the Russian Federation). If the person in whose interest actions are taken without his instructions approves them, the rules on the contract of agency or other agreement corresponding to the nature of the actions taken (Article 982 of the Civil Code of the Russian Federation) are subsequently applied to the relations of the parties.
But most often, payments to third parties are made within the framework of Article 313 of the Civil Code. I will immediately answer a possible question: is the organization obliged to pay in favor of a third party, fulfilling the will of its counterparty? By default, unless specifically stated in the contract, it is not obligatory.
And the court is unlikely to force anyone to do this. The arbitrators take the position that a voluntary action cannot be forced in court.
Making a payment
In practice, an order to pay a third party is issued in a letter from the counterparty to the head of the organization. It is necessary that the letter indicates the amount to be paid, details of the company in whose favor the payment must be made, as well as the correct purpose of the transfer (contract number, account number, etc.). The more detailed the letter, the better: this data will protect the paying company from potential risks.
If payment to a third party is made to repay a counter-obligation, then the relevant information (details of the agreement, act, invoice, payment order, etc., depending on the specific circumstances) must also be reflected in the letter. It is also necessary that the paper directly indicate which counter-obligation will be repaid with such payment. In addition, it is very important that the letter is signed by an authorized person. It is best if this is done directly by the head of the organization, and not by any person by proxy. And, of course, it’s worth paying only if you have the original letter in your hands, and not a copy of it.
Paid and changed your mind
Suppose that an organization received a letter from its counterparty with a request to pay not to him personally, but to some other company under some agreement, the company made such a payment, and then changed its mind and decided to return the money back, citing, for example, the payment was erroneous. I would like to note right away that the third party – the recipient of such a payment – may not return the money received. And the court, if the case comes to it, will most likely recognize that the organization does not have the right to demand the return of the amount of such a transfer.
Arbitrators in such situations recognize that the debtor’s right to assign performance to a third party corresponds to the obligation of the creditor to accept the corresponding performance, and in this case the creditor is obliged to accept the performance offered for the debtor by a third party. The arbitrators also point out that the law does not oblige a bona fide creditor to investigate the existing relationship between the debtor and a third party, to establish the motives that prompted the debtor to entrust the fulfillment of his obligation to another person, and does not give him the authority to verify whether the debtor actually entrusted the fulfillment of the obligation to third party (see, for example, Determinations of the Supreme Arbitration Court of the Russian Federation dated November 20, 2013 No. VAS-15848/13, dated November 18, 2013 No. VAS-15480/13, dated October 28, 2010 No. 7945/10, dated August 23 .2013 No. VAS-11737/13).
In this case, the judges refer to the legal position set out in the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of October 28, 2010 No. 7945/10, which, among other things, contains a very important conclusion that “the subsequent statement of the absence of an agreement between the debtor and a third party the assignment of execution to a third party does not indicate the occurrence on the part of a bona fide creditor of unjust enrichment in the form of execution received from a third party.”
Tax accounting
Is it legal to apply a VAT deduction if the payment was made not to a party to the contract, but at its request to a third party? This is another question that an accountant may have. I would like to note right away that the Tax Code does not contain a ban or any other restrictions on deducting VAT in such situations. But the Code is a Code, and what do the regulatory authorities explain about this? The Ministry of Finance also sees no obstacles to deducting VAT. Such conclusions are set out, for example, in Letter No. 03-07-11/320 dated November 22, 2011, which states that Article 172 of the Tax Code does not contain special provisions for the use of deductions when paying tax by a third party, and therefore this fact does not affect on the validity of applying deductions.
I would like to note that during those years when VAT was accepted for deduction after actual payment, numerous judicial practices developed in favor of companies. The courts indicated that the fact of payment to a third party does not affect the validity of the application of VAT deductions (see, for example, the resolution of the Federal Antimonopoly Service of the Far Eastern District dated September 1, 2008 No. F03-A51/08-2/3556 in case No. A51-1184/200733 -20, Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated April 4, 2006 in case No. A82-703/2005-15, Resolution of the Federal Antimonopoly Service of the East Siberian District dated December 19, 2006 No. A19-31799/05-44-F02-6724 /06-C1 in case No. A19-31799/05-44).
If it does not follow from the law or the agreement between the parties that the debtor is obliged to fulfill his monetary obligation personally, such a debtor may assign this obligation to another person (Article 313 of the Civil Code of the Russian Federation). To do this, it may be enough to write a letter requesting payment of a certain amount to a third party. We provide a form and example of filling out a letter of payment to a third party from a counterparty in our material.
Paying a debt to a third party: how to write a letter
Transferring debt to a third party is a convenient way to optimize settlements. Let's show this with an example. Organization A purchased the goods from organization B and then shipped it to organization C. In order not to “drive” money along the “C B A” chain, organization B offers organization C to pay the agreed amount directly to organization A.
If the payment deadline for the goods has arrived and organization C does not have to incur additional costs for transferring funds to organization A, then organization C is unlikely to refuse a request to pay the debt to a third party, i.e. organization A.
To inform the debtor about a change in the payment scheme, he needs to send a letter. How is a sample letter of authorization for payment to a third party drawn up? The letter is written in any form. It must indicate that the creditor is asking to transfer money to a third party on account of the existing debt, and also provide the details of such a person.
In a payment order to transfer money to a third party, you must indicate that the payment is being made for another person. This way, when paying by a third party by letter, the recipient’s risk can be minimized. After all, if there is no such clause in the payment order, and there is no letter from the direct payer stating that the payment was made on behalf of another person, such a payer will be able to later claim that the transfer was erroneous and demand a refund.
When paying by letter to a third party, the accounting entries are extremely simple: after confirmation of payment, each party, as a rule, reflects in the settlement accounts the closure of the corresponding debt in whole or in part.
Here is a sample letter about payment of debt to a third party.
Article 506 of the Civil Code of the Russian Federation defines a supply contract as an agreement under which the supplier-seller, engaged in business activities, undertakes to transfer, within a specified period or terms, the goods produced or purchased by him to the buyer for use in business activities or for other purposes not related to personal, family, home and other similar use.
The purchasing organization is obliged to pay for the supplied goods in compliance with the procedure and form of payment provided for in the supply agreement, at the price specified in the contract (clause 1 of article 516, clause 1 of article 485 of the Civil Code of the Russian Federation).
In accordance with paragraph 1 of Art. 161 of the Civil Code of the Russian Federation, all transactions concluded by legal entities between themselves and citizens must be made in simple written form by drawing up a document reflecting the content and signed by the person or persons making the transaction, or their duly authorized persons (clause 1 of Article 160 of the Civil Code RF).
Civil legislation (clause 1 of Article 313 of the Civil Code of the Russian Federation) provides for the possibility of entrusting the fulfillment of an obligation by the debtor to a third party, if the law, other legal acts, the terms of the obligation or its essence does not entail the obligation to fulfill the obligation personally. In this case, the creditor is obliged to accept performance for the debtor by a third party.
A third party is one who, not being one of the counterparties, finds himself in a legally significant relationship with the debtor or creditor or with both. The existence of mutual obligations between the debtor and a third party is important for tax purposes. Otherwise, a request to transfer money may be perceived as a gift agreement (Clause 1, Article 572 of the Civil Code of the Russian Federation), and donations between commercial organizations are not allowed.
Situations often arise when the obligation to the creditor under a supply agreement is fulfilled not by the debtor, but by a third party.
For example, an organization must deliver goods, make an advance payment or pay for goods already delivered, and it asks its counterparty to fulfill this obligation for it. In this case, the counterparty either “closes” an existing obligation to this organization, or ships goods (pays for them) as an advance (loan) to this organization.
Preparation of primary documents
An order to a third party to fulfill an obligation for a debtor should be made in writing, for example in the form of a letter, in which it is necessary to indicate why the third party is fulfilling his request: whether he is doing this to pay off an existing debt to him or, conversely, to pay for his future delivery or receiving payment from him. Such a document will help both the debtor and the third party to justify who owes what and to whom and who does what and for whom.
It is important to know that in this case there is no change of persons in the obligation. Therefore, the creditor will make any claims specifically to this organization, and not to the third party who fulfilled the obligation for it (clause 12 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 29, 2001 N 65). All primary documents (acts, invoices, etc.) in this case must be drawn up on behalf of the debtor and in the name of the creditor.
The third party transferring money to the creditor must indicate in the payment slip under which agreement he is making the payment and for whom, and give a copy of the payment slip to the debtor.
If it ships goods for the debtor, then two invoices are issued. One is written by a third party, in which he is the supplier and consignor, the debtor is the buyer, and the buyer of the goods is the consignee. And the other, already as a supplier, is drawn up by the debtor and indicates in it a third party as the consignor, and the buyer of the goods as the buyer and consignee.
The procedure for reflecting income and expenses of transaction participants in tax accounting
Organizations applying the simplified tax system recognize the date of receipt of income as the day of receipt of funds into bank accounts and (or) to the cash desk, as well as repayment of debt (payment) to the taxpayer in another way (clause 1 of Article 346.17 of the Tax Code of the Russian Federation). Expenses under the simplified tax system are recognized as expenses after they are actually paid. In this case, payment for goods (work, services) is recognized as the termination of the obligation of the taxpayer - the purchaser of goods (work, services) to the seller, which is directly related to the supply of these goods (performance of work, provision of services) (clause 2 of Article 346.17 of the Tax Code of the Russian Federation).
And even if a third party pays for the goods, the obligation to the seller ends, i.e. the expenses of the purchaser of goods are paid (Article 313 of the Civil Code of the Russian Federation). However, if a third party fulfills an obligation for a counterparty to its creditor only partially, this obligation is considered extinguished only to the extent fulfilled by the third party.
At the time of transfer of the prepayment, there are no grounds for recognizing the expense (clauses 1, 2 of Article 346.16, paragraph 4 of clause 1 of Article 252 of the Tax Code of the Russian Federation, Letter of the Ministry of Finance of Russia dated December 12, 2008 N 03-11-04/2/195 ).
There are, however, general rules of Ch. 25 of the Tax Code of the Russian Federation on expenses, which even “simplified people” are obliged to follow. They state that expenses must be incurred and documented (clause 1 of Article 252 of the Tax Code of the Russian Federation). And when can it be said that the buyer of goods has documented expenses when paying his invoices to another company? Then, when he has paid off his debt to this third party and he has documents confirming the payment of his expenses. Moreover, repayment of a debt to a third party is possible not only by transferring “real” money, but also by offsetting mutual claims, supplying goods, etc. There are no prohibitions on this matter in Chapter. 25, nor in ch. 26.2 of the Tax Code of the Russian Federation has not been established.
Thus, payment for the purpose of calculating tax when applying the simplified tax system (clauses 1, 2 of Article 346.17 of the Tax Code of the Russian Federation) is the repayment of debt to the creditor in any way. And who exactly transfers money, ships goods, or otherwise fulfills an obligation does not matter. The main thing is to prepare the documents correctly so that they confirm all the transactions performed.
Let's consider how the simplified taxation system takes into account the relationships between the parties.
If the organization is a creditor
Situation No. 1. Money for the shipped goods came from a third party.
At the time of receipt of money, the supplier organization recognizes income from the sale of goods (clause 1 of Article 346.17 of the Tax Code of the Russian Federation).
Situation No. 2. Prepaid goods were received from a third party.
The purchasing organization has the right to take into account the cost of these goods in expenses if all necessary conditions are met, since these goods were paid for by it earlier (clause 23, clause 1, article 346.16, clauses 1, 2, clause 2, article 346.17 of the Tax Code of the Russian Federation, Letters of the Ministry of Finance of Russia dated January 20, 2010 N 03-11-11/06, dated December 25, 2008 N 03-11-05/312).
If the organization is a debtor
Relationship with the lender
Situation No. 1. A third party pays the supplier for shipped goods.
After the third party transfers money to the supplier, the organization that received the goods will be able to take into account the cost of the goods received from the supplier in expenses, of course, subject to other necessary conditions (clause 2 of Article 346.17 of the Tax Code of the Russian Federation, Letter of the Ministry of Finance of Russia dated January 16, 2007 N 03 -11-05/4).
For example, if the goods were purchased for resale, then the corresponding expenses can be generated after the sale of the goods.
Situation No. 2. Prepaid goods for the supplier organization (under the contract) are shipped by a third party.
The supplier organization (under the contract) has already previously reflected income from the sale of goods upon receipt of an advance payment from the buyer (clause 1 of Article 346.15, clause 1 of Article 346.17 of the Tax Code of the Russian Federation).
The supplier organization (under the contract) will be able to write off the cost of goods shipped to the buyer as expenses only after it has paid for them with a third party (clauses 8, 23 clause 1 of article 346.16, clause 2 clause 2 of article 346.17 Tax Code of the Russian Federation).
Relationship with a third party
Situation No. 1. A third party fulfills the organization’s obligation to repay its debt.
If a third party owes an organization money for goods supplied to it or services provided, then the organization recognizes revenue from sales after the third party fulfills its obligation to the creditor (ships the goods or transfers money).
If a third party was supposed to ship goods to the organization, but at its request, shipped them to the organization’s creditor, then these goods are considered to have already been paid for (clause 1 of Article 346.17 of the Tax Code of the Russian Federation).
Situation No. 2. A third party fulfills an obligation of an organization, which is recognized as an advance payment by him to this organization.
When a third party transfers money to a creditor of an organization, the organization recognizes income in the amount of such advance on the date of transfer of money (clause 1 of Article 346.15, clause 1 of Article 346.17 of the Tax Code of the Russian Federation, Letter of the Ministry of Finance of Russia dated July 21, 2008 N 03-11-04 /2/108, Decision of the Supreme Arbitration Court of the Russian Federation dated January 20, 2006 N 4294/05).
If a third party ships goods to a creditor of the organization, then the organization will take their cost into account in expenses after it pays for them with the third party (Clause 2 of Article 346.17 of the Tax Code of the Russian Federation).
Situation No. 3. A third party fulfills an obligation of the organization, which is recognized as issuing a loan to it.
Receipt and repayment of a loan (both monetary and goods) does not affect the formation of the organization’s tax base (clause 10, clause 1, article 251, clause 1, clause 1.1, article 346.15, clause 1, article 346.16 of the Tax Code of the Russian Federation) .
Interest paid on the loan can be taken into account in expenses at the time of payment (of course, only in an amount not exceeding the maximum amount calculated in accordance with the requirements of Article 269 of the Tax Code of the Russian Federation) (clause 9, clause 1, article 346.16, clause 1 clause 2 of article 346.17, clause 2 of article 346.16 of the Tax Code of the Russian Federation).
If the organization is a third party
Situation No. 1. An organization fulfills the obligation of its counterparty to repay a debt to it.
Goods or services purchased by an organization from a supplier will be considered paid if, in order to repay its debt to the supplier, it transfers money or ships the goods to the person indicated by it (clauses 1, 2 of Article 346.17 of the Tax Code of the Russian Federation).
If an organization has received an advance from its counterparty, but ships the goods not to him, but to another person on his behalf, it can write off the cost of this product as expenses (clauses 1, 2, clause 2, Article 346.17 of the Tax Code of the Russian Federation). And the proceeds from its sale were already recognized as income upon receipt of an advance (clause 1 of Article 346.17 of the Tax Code of the Russian Federation).
Situation No. 2. An organization fulfills the obligation of its counterparty to pay an advance.
When an organization transfers money to its counterparty as an advance payment to its supplier, it does not incur any expenses. They will appear to her no earlier than she receives the goods (clause 2, clause 2, article 346.17 of the Tax Code of the Russian Federation, Letters of the Ministry of Finance of Russia dated January 16, 2007 N 03-11-05/4, dated September 9, 2005 N 03-11-04 /2/75, Letter of the Federal Tax Service of Russia for Moscow dated June 26, 2006 N 18-11/3/55762@).
However, if an organization has shipped goods to a creditor of a counterparty, it will reflect the proceeds from their sale only after the counterparty has fulfilled its obligations (clause
1 tbsp. 346.17 Tax Code of the Russian Federation).
Situation No. 3. An organization fulfills the obligation of its counterparty to issue a loan to it.
The organization does not include issued and repaid loans in the tax base, and recognizes accrued interest as income at the time of receipt (Clause 6, Article 250, Clause 10, Clause 1, Article 251, Clause 1, Clause 1, Clause 1.1, Art. 346.15, paragraph 1 of Article 346.16, paragraph 1 of Article 346.17 of the Tax Code of the Russian Federation, Letter of the Ministry of Finance of Russia dated December 9, 2008 N 03-11-05/295).
Liability of the debtor to the creditor for non-fulfillment or improper fulfillment of obligations by third parties
In accordance with Art. 403 of the Civil Code of the Russian Federation, the debtor is responsible for non-fulfillment or improper fulfillment of obligations by third parties who were entrusted with execution, unless the law establishes that the responsibility is borne by a third party who is the direct executor. Although the provisions of this article do not directly indicate on what grounds and conditions the debtor’s liability for the actions of the actual executor is based, in order to ensure the unchanged position of the creditor when replacing the actual executor, the debtor is obliged to bear responsibility for the actions of a third party as if they were his own. This approach has traditionally been shared by judicial practice.
Taking this into account, in relation to the liability established by paragraph 1 of Art. 395 of the Civil Code of the Russian Federation, Resolution of the Plenum of the Armed Forces of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated 08.10.1998 N 13/14 (clause 9) draws the attention of the courts to the fact that, according to Art. 403 of the Civil Code of the Russian Federation in the event of a violation of a monetary obligation by third parties who were entrusted with the fulfillment of this obligation, interest provided for in Art. 395 of the Civil Code of the Russian Federation, are recovered not from these persons, but from the debtor on the same grounds as for their own violations, unless the law establishes that such liability is borne by the person who is the direct executor.
Thus, the debtor under a monetary obligation:
- bears responsibility for the actions of the payer who was entrusted with the fulfillment of the monetary obligation;
- bears such responsibility on the same grounds as for his own actions.
Consequently, in cases where the debtor himself can be exempted from paying interest for late payment only upon presentation of evidence of force majeure, then when assigning execution to the payer, the debtor must prove that neither he nor the payer could fulfill the obligation due to extraordinary and circumstances that are unavoidable under the given conditions.
If the debtor is liable in the presence of guilt, his release from liability is possible only if there is evidence that both he and the actual executor (payer) showed the degree of care and prudence that was required of them by the nature of the obligation and the conditions of turnover, and accepted all measures for proper fulfillment of the obligation.
E. Antanenkova
First House of Consulting
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What you need to know about payment by a third party 31.01.2017 11:17
In the course of its activities, a company or entrepreneur may be faced with a request from a counterparty to transfer payment for goods supplied, services provided or work performed not to him, but to a third party. Such a proposal is often received ambiguously. Or it may happen that the company itself finds itself in the role of a debtor, whose obligations are paid by a third party.
How legal is it to carry out such operations, and how to properly document this?
Third person - who is it?
A third party is a person who, in relation to specific obligations, is not in a contractual relationship with the organization. For example, a supplier shipped goods to a buyer and asked to transfer funds to the account of his lessor, to whom he had a debt. In this situation, there is a contractual relationship between the supplier and its lessor, and the buyer who made the payment to the lessor is a third party.
About legality and safety
Having received an offer from his counterparty to pay his debt to a third-party organization, any novice businessman will ask himself several questions. How legal is this? Is it possible to refuse such an offer? And will the inspection authorities have any complaints about this?
In accordance with Article 313 of the Civil Code, the debtor may entrust the performance of his duties to a third party, if laws, other legal acts, the essence and conditions of this obligation do not oblige the debtor to fulfill it personally. In practice, in most cases there are no restrictions on payment by a third party for the debtor. And the creditor is obliged to accept such payment. Moreover, now you can even pay taxes for a third-party organization.
Does a company have the right to refuse to pay its counterparty’s obligations to another organization? Of course, there is, unless otherwise specifically stated in the contract. No one can force a company to transfer its funds to a person with whom it does not have a contractual relationship, not even an arbitration court.
However, is it worth abandoning this option? Today, payment of obligations by a third party is not uncommon. A fairly decent practice has been developed, which suggests that if everything is properly formalized, then the tax authorities usually do not have questions about this.
How to apply
No special document is provided for payment by a third party. To contact your counterparty with a request to make a payment in favor of another person, it is enough to write a free-form letter addressed to his manager. This letter must contain the names of all parties to the transaction, that is, the payer, the debtor and the organization in whose favor the payment will be made. In addition, you must indicate the obligation for the fulfillment of which the payer will transfer funds. It is clear that the letter must also include the main parameters of the payment - amount, payment details, purpose, and so on. In general, it wouldn’t hurt to write as detailed a letter as possible. Accordingly, if you act as an organization to which a counterparty offers to pay the funds due to it to the account of a third-party organization, it is important to obtain the original of such a letter, signed by the head of the company.
