Article 75 of the Tax Code of the Russian Federation. Pena (current edition)

How does a penalty differ from a fine?

These are two different types of penalties. They both impose a fee for failure to fulfill obligations, but the accrual mechanism is different. So, the fine involves a fixed amount of money. For example, for late payments on a credit card, the bank imposes a one-time fine of 590 rubles.

A penalty is a certain percentage that is charged on the amount of debt. Let’s say the penalty for the supply of some goods is 0.1% per day of its cost. Most often, one type of penalty is applied, less often both at once, when, according to the contract, a fine must be paid, and the penalty accrues every day.

As for consumer lending agreements, banks can only impose penalties on them, and in the amount limited by law to 20% per annum. But fines may apply to credit cards.

What should be taken into account when calculating penalties?

Article 330 of the Civil Code of the Russian Federation contains comprehensive data on how exactly the penalty for late payment is calculated. In accordance with this, you should focus on the following points:

1. It is necessary to determine the amount from which penalties for late payment will be calculated. We can talk about the entire amount under the contract or about the part unpaid by the customer. The clause of the agreement on the responsibility of the parties must certainly contain information that allows you to resolve this issue.
2. The interest rate used. It is this indicator that will be the measure of liability for violation of the contract. The percentage is specified in the contract.
3. The time that has passed since the terms of the contract were considered violated.

Tax penalties

The Federal Tax Service is the body that very actively charges penalties. Many Russians do not particularly pay attention to tax payment deadlines and often do not know about them at all. And there is a transport tax, land tax, real estate tax, income tax, etc. And each must be paid on time.

It’s good if you receive a receipt from the Federal Tax Service, which you can pay. But often it is not there, and a citizen learns about delays and penalties only from the corresponding letters or on the State Services portal.

The amount of penalties for tax fees is indicated in Article 75 of the Tax Code of the Russian Federation, which is dedicated to this point. Here's what the law says:

• for individuals, a penalty is applied in the form of 1/300 of the refinancing rate of the Central Bank of the Russian Federation, current at the moment;
• for organizations in the first 30 days of delay, a penalty of 1/300 of the refinancing rate of the Central Bank of the Russian Federation is provided. Starting from the 31st day, another 1/150th is added to it.

At the same time, the law determines the moments at which the taxpayer can cancel the penalty. They are not accrued if, as part of judicial proceedings, the property of a person or company was seized, if a decision was made to suspend operations on his accounts. In this case, you need to contact the Federal Tax Service and write a corresponding application.

Article 75 of the Tax Code of the Russian Federation. Penya

The commented article regulates the calculation of penalties.

Penalties are payable by the taxpayer in the event of arrears, i.e. the amount of tax not paid within the period established by law.

Paragraph 57 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 N 57 “On some issues arising when arbitration courts apply part one of the Tax Code of the Russian Federation” states that a penalty is charged for each calendar day of delay in fulfilling the obligation to pay a tax or fee.

Forced collection of penalties from organizations and individual entrepreneurs is carried out in the manner prescribed by Articles 46 and 47 of the Tax Code of the Russian Federation.

When applying these rules, courts must proceed from the fact that penalties can be collected only if the tax authority has timely taken measures to force the collection of the amount of the corresponding tax. In this case, penalties are accrued on the day of actual repayment of the arrears.

In paragraph 51 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 N 57, it is noted that when checking compliance by the tax authority with the deadlines for sending a request for payment of penalties, the courts should take into account the provisions of paragraph 5 of Article 75 of the Tax Code of the Russian Federation, according to which penalties are paid simultaneously with the payment of tax and fee amounts or upon payment of such amounts in full.

It follows from the above norm that the requirement for payment of penalties accrued on the amount of arrears arising at the end of a specific tax (reporting) period is sent by the said body on the basis of paragraph 1 of Article 70 of the Tax Code of the Russian Federation no later than three months from the moment the taxpayer pays the entire amount of arrears (in in case of repayment of arrears in installments - from the moment of payment of the last part).

As explained in paragraph 61 of the said Resolution, in cases where the requirements of the tax authority include a demand for the collection of penalties and by the time the tax authority applies to the court, the arrears have not been repaid by the taxpayer, the said authority during the trial has the right, on the basis of Article 49 of the Arbitration Procedure Code of the Russian Federation, to increase the amount of requirements regarding the collection of penalties.

If the taxpayer repays the arrears before the court makes a decision on the application of the tax authority, the amount of penalties to be collected is indicated in the court decision in a fixed amount.

If at the time the decision is made the amount of arrears has not been paid by the taxpayer, the court decision to collect penalties from the taxpayer must contain the following information: the amount of arrears on which penalties are accrued; the date from which penalties are calculated; interest rate of penalties taking into account the provisions of Article 75 of the Tax Code of the Russian Federation; an indication that penalties are subject to accrual on the day of actual payment of the arrears.

It should be taken into account that penalties are also charged for non-payment of advance payments. The procedure for calculating penalties does not depend on whether the corresponding advance payments are paid during or at the end of the reporting period, or whether they are calculated on the basis of the tax base determined in accordance with Articles 53 and 54 of the Tax Code of the Russian Federation and reflecting the real financial results of the taxpayer’s activities.

Penalties for failure to pay advance tax payments on time are subject to calculation until the date of their actual payment or, in case of non-payment, until the due date for payment of the relevant tax.

If, at the end of the tax period, the amount of the calculated tax turned out to be less than the amount of advance payments due during this tax period, the courts must proceed from the fact that penalties accrued for non-payment of these advance payments are subject to a proportionate reduction.

This procedure should also be applied if the amount of advance tax payments calculated at the end of the reporting period is less than the amount of advance payments payable during this reporting period (clause 14 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 N 57).

The provisions of paragraph 6 of Article 48 of the Tax Code of the Russian Federation, which regulates the procedure for collecting tax at the expense of the property of a taxpayer - an individual who is not an individual entrepreneur, the rules established by paragraph two of paragraph 3 of Article 75 of the Tax Code of the Russian Federation, are specified in relation to the collection of tax at the expense of property (not related to monetary means) carried out on the basis of a judicial act that has entered into legal force. In accordance with this law, penalties are not accrued to a taxpayer - an individual who does not have the status of an individual entrepreneur - from the day the property is seized until the day the proceeds are transferred to the budget system of the Russian Federation.

Thus, this norm of the Tax Code of the Russian Federation, taking into account its content, is aimed at establishing additional guarantees for the protection of the rights of taxpayers - individuals who are not individual entrepreneurs, in the event of tax collection from them at the expense of property, and therefore, as acting in a systematic relationship with the second paragraph of paragraph 3 of Article 75 of this Code cannot be regarded as violating the constitutional rights of the applicant.

This conclusion is contained in the ruling of the Constitutional Court of the Russian Federation dated February 25, 2013 N 152-O.

The Resolution of the Federal Antimonopoly Service of the North-Western District dated 06/03/2013 in case No. A26-7579/2012, in particular, reflects that since the property belonging to the entrepreneur was seized and the entrepreneur could not pay off the tax debt by selling his property, which penalties are accrued, this, by virtue of Article 75 of the Tax Code of the Russian Federation, excludes the possibility of accruing penalties.

The Resolution of the Nineteenth Arbitration Court of Appeal dated April 13, 2009 N A35-6391/08-C15 provides the following interpretation.

Based on Articles 72 and 75 of the Tax Code of the Russian Federation, a fine is not a measure of tax liability.

Penalties are a legal restoration measure of state coercion, which is of a compensatory nature for late payment of taxes to the budget.

The concept of a tax sanction is provided for in paragraphs 1 and 2 of Article 114 of the Tax Code of the Russian Federation, according to which tax sanctions are a measure of responsibility for committing a tax offense and are applied in the form of monetary penalties (fines) in the amounts provided for in Chapters 16 and 18 of the Tax Code of the Russian Federation.

Consequently, tax sanctions and penalties have a different legal nature.

Paragraph 18 of the Resolution of the Plenum of the RF Armed Forces and the Supreme Arbitration Court of the Russian Federation No. 41/9 dated 06/11/99 “On some issues related to the implementation of part one of the Tax Code of the Russian Federation” explains that, by virtue of Articles 106, 108, 109 of the Tax Code of the Russian Federation, wine is mandatory a condition for holding a person accountable for a tax offense, in connection with which it must be borne in mind that the release of the taxpayer and tax agent from liability for committing a tax offense exempts them only from the collection of fines, but not penalties, since the latter is not a measure of tax liability.

Considering that penalties accrued in accordance with Article 75 of the Tax Code of the Russian Federation are a measure of the compensatory nature of budget losses, and not a measure of tax liability, and based on the meaning of Article 114 of the Tax Code and paragraph 18 of the said Resolution, the taxpayer is exempt from liability due to the absence of guilt in committing A tax offense is only possible in relation to the collection of fines, but not penalties.

The Resolution of the Presidium of the Tomsk Regional Court dated March 21, 2012 N 44g-8/2012 explains that the main purpose of the tax penalty is to ensure proper execution by taxpayers, fee payers and tax agents publicly of the legal obligation to make timely tax payments.

According to the legal position of the Constitutional Court of the Russian Federation, formulated in Resolution No. 20-P of December 17, 1996, a fine is a type of legal restoration measures of state legal coercion aimed at replenishing arrears and compensating for property losses to the treasury caused by late payment of taxes.

The Decision of the Arbitration Court of the Sverdlovsk Region dated October 18, 2012 N A60-26469/2012 noted that penalties are a payment derived from the amount of the principal debt and cannot be collected in the absence of grounds for collecting the amount of tax (fee) on which they are accrued.

The Federal Antimonopoly Service of the North Caucasus District in Resolution No. A53-8011/2012 dated January 17, 2013 noted that penalties are a legal restoration measure of state coercion, which is of a compensatory nature for late payment of taxes to the budget, and should be applied to the subject of tax legal relations who is entrusted with such duty. It should be borne in mind that the obligation to pay personal income tax to the budget by a tax agent arises, as a general rule, earlier than a similar obligation arises for the taxpayer. Consequently, collecting penalties not from the tax agent, but from the taxpayer (in the event of failure to withhold tax from him by the tax agent) would not provide full compensation for damage to the state from untimely and incomplete payment of the tax. Under such circumstances, the inspectorate rightfully assessed the organization.

As noted in the Resolution of the Federal Antimonopoly Service of the Moscow District dated March 28, 2012 N A40-60722/10-107-327, clarifications on tax payment issues can be the basis for exemption from payment of penalties. A notification about the possibility of applying a simplified taxation system is not an explanation of the application of legislation. Consequently, there are no grounds for exempting a taxpayer from paying penalties on taxes with reference to a notification about the possibility of applying a simplified taxation system.

The Constitutional Court of the Russian Federation, in Determination No. 202-O dated July 4, 2002, indicated that the penalty is an additional payment aimed at compensating for losses to the state treasury as a result of shortfalls in receiving tax amounts on time in the event of a delay in tax payment.

At the same time, failure to pay taxes on time in the presence of an overpayment in an amount that covers the arrears, subject to compliance with the rules for offsets established by the state in the Tax Code of the Russian Federation, prevents damage to the treasury (the treasury of the Russian Federation, the treasury of a subject of the Russian Federation or the treasury of a municipal entity) and, accordingly, the need its compensation by charging penalties.

A similar position is set out in the Resolution of the Federal Antimonopoly Service of the North-Western District dated July 30, 2012 N A56-48850/2011.

The Resolution of the Nineteenth Arbitration Court of Appeal dated November 21, 2012 N A48-2528/2012 indicates that penalties are a way of ensuring the fulfillment of the obligation to pay tax, which means that a change in the obligation to pay tax entails a change in the consequences of non-payment of tax, including penalties .

The Federal Antimonopoly Service of the Moscow District, in Resolution No. A40-136136/11-91-559 dated December 5, 2012, draws attention to the fact that since the penalty is not included in the tax, there is no reason to extend to it the provisions on the inadmissibility of collecting tax at the expense of the tax agent’s own funds.

In accordance with the legal position set out in the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 20, 2011 N 5317/11, the tax authority, in the event of failure to withhold and transfer to the budget the amount of tax due from the tax agent, has the right to hold him accountable under Article 123 of the Tax Code of the Russian Federation, as well as has the right to charge penalties, since penalties are a way of ensuring the fulfillment of the obligation to pay taxes.

Based on the provisions contained in Articles 46, 72, 75 of the Tax Code of the Russian Federation, the payment of penalties should be considered as an additional obligation of the taxpayer in addition to the obligation to pay tax, performed simultaneously with the obligation to pay tax or after the latter has been fulfilled. The fulfillment of the obligation to pay penalties cannot be considered in isolation from the fulfillment of the obligation to pay tax. Therefore, after the expiration of the preemptive period for collecting tax arrears, penalties cannot serve as a way to ensure the fulfillment of the obligation to pay tax and from that moment are not subject to accrual.

The conclusion about this is given in the Resolution of the Seventh Arbitration Court of Appeal dated 05/02/2012 N 07AP-2709/12.

In the Appeal Determination of the Volgograd Regional Court dated March 29, 2012 N 33-3177/2012, it is noted that the tax authority’s failure to meet deadlines for collecting tax debts prevents the collection and penalties for violating the deadlines for paying these taxes, since by virtue of Article 72 of the Tax Code of the Russian Federation, the accrual of penalties is only a way to ensure the fulfillment of the obligation to pay taxes, and Article 75 of the Tax Code of the Russian Federation establishes the rule on the payment of penalties simultaneously with the payment of the tax or after its payment in full.

If the tax is credited to the budgets of different subjects and the decision to offset the amount of overpaid tax against upcoming payments for this tax is made by the tax authority within the time limits established by Article 78 of the Tax Code of the Russian Federation, but after the established deadline for payment of the tax, from the day following the established day of payment tax, until such a decision is made by the tax authority, penalties will be charged on the amount of the resulting arrears.

The Tax Code of the Russian Federation does not provide for the recalculation of the amounts of penalties accrued before the tax authority makes a decision to offset the amounts of overpaid tax.

A similar conclusion is stated in Letter of the Ministry of Finance of Russia dated 02.08.2011 N 03-02-07/1-273.

In case of violation of the pre-trial deadline for collecting tax debt, penalties cannot act as a way to ensure the fulfillment of the obligation to pay it; their accrual and collection under such circumstances will contradict the Tax Code of the Russian Federation.

In addition, taking into account in the database of settlements with the budget maintained by the tax authority, amounts of arrears and penalties that are overdue or unreasonably accrued to the taxpayer, as well as the accrual of penalties on these amounts, not only entails the tax authority repeatedly sending demands for payment of taxes, making decisions on forced their collection, but also deprives the taxpayer of the right to offset or return overpaid amounts to the budget, since in accordance with paragraph 6 of Article 78 of the Tax Code of the Russian Federation, if the taxpayer has arrears in paying taxes or arrears of penalties (which are established on the basis of the RSB), The refund to the taxpayer of the overpaid amount of tax is made only after the specified amount is offset against the repayment of the arrears (debt).

Taking into account the above, based on the need to maintain a balance of private and public interests and to reflect in the certificate objective information about the state of settlements with the budget, the certificate must contain not only information about the actually existing and confirmed debt, but also an indication of the loss by the tax authority of the possibility of collecting it.

This conclusion is supported by judicial practice (see Resolution of the Federal Antimonopoly Service of the Moscow District dated September 4, 2012 N A41-5671/12).

Penalties are a legal restoration measure of state coercion, of a compensatory nature, for late payment of taxes to the budget and must be collected from the subject of tax legal relations who is charged with such an obligation. Since in certain cases of the Tax Code of the Russian Federation the obligation to transfer to the budget the amount of tax withheld from the taxpayer’s income is assigned to tax agents, if the tax subject to withholding and transfer to the budget is not paid to the budget, penalties are charged to the tax agent.

The legality of the tax authority accruing penalties on the amount of tax unpaid by the tax agent was confirmed by the Presidium of the Supreme Arbitration Court of the Russian Federation in Resolution No. 5317/11 dated September 20, 2011.

A similar position is reflected in the Resolution of the Federal Antimonopoly Service of the North-Western District dated 06/01/2012 N A44-219/2010.

The cassation ruling of the Supreme Court of the Republic of Buryatia dated November 16, 2011 N 33-3420 establishes the approach according to which the fine (the obligation to pay it) is established by the norms of the legislation on taxes and fees governing relations based on administrative subordination and does not have a civil legal nature given to it in the sense of Article 333 of the Civil Code of the Russian Federation, in particular, the specified penalty is not subject to the requirements of Article 331 of the Civil Code of the Russian Federation on the mandatory written form of the penalty.

This position is developed in the Resolution of the Presidium of the Tomsk Regional Court dated March 21, 2012 N 44g-8/2012.

The court noted that, under civil law, a penalty is a way of ensuring the fulfillment of civil obligations (Article 329 of the Civil Code of the Russian Federation) and a measure of property liability for their non-fulfillment or improper performance (Article 330 of the Civil Code of the Russian Federation). The right to reduce the penalty is granted to the court by Article 333 of the Civil Code of the Russian Federation in order to eliminate its obvious disproportion to the consequences of violation of obligations. However, this norm of substantive law is applied in relations of a private law nature, the subjects of which are equal, independent in property, and also have other characteristics specified in Articles 1 and 2 of the Civil Code of the Russian Federation. Tax legal relations are based on the authoritative subordination of one party to the other, therefore, disputes regarding failure to fulfill a tax obligation are of a public, and not civil, nature, and therefore the norms of the Civil Code of the Russian Federation, including Article 333 of the Civil Code of the Russian Federation, cannot be applied to these legal relations.

Due to the direct indication in paragraph 3 of Article 3 of the Civil Code of the Russian Federation, the absence in the Tax Code of the Russian Federation of a norm allowing the application of civil legislation to tax legal relations, reducing the amount of penalties on the basis of Article 333 of the Civil Code of the Russian Federation is unacceptable and contradicts the norms of tax and civil legislation.

How to find out how many penalties have been accrued

If you received a letter, all information will be reflected in it. You can also view the amount of tax due for payment and all accrued penalties in your personal account of the Federal Tax Service. If you have an account on State Services, all relevant information will be reflected there.

If taxes are overdue, the amount due is divided into two parts. The due tax fee is formed by one receipt, and the accrued penalties by another. This is what it looks like on the Government Services portal:

Moreover, if you plan to pay off the entire debt, initially you need to pay off the tax itself, only then the accrued penalties. After payment, within 10 days the Federal Tax Service will process the payment and update information on the amount of penalties:

The fact is that penalties are charged for each day of late payment. That is, while the payment is being processed, the penalty will accrue again during these days, and the amount will be slightly different.

Penalties for non-payment of loans

Penalties are a constant companion for those who do not fulfill their obligations under loan agreements. But if previously banks themselves regulated the amount of penalties, now at the legislative level all penalties are limited.

This was done on purpose, since some creditors set unreasonably high penalties, plus fines. As a result, borrowers who committed even a one-time delay fell into a real debt hole from which they could not get out.

So situations arose when, with an initial loan amount of 100,000 rubles, a person found himself owing 1,000,000 rubles or even more. To stop this, the Central Bank decided to limit bankers in terms of assigning penalties, which is reflected in Federal Law No. 353 On consumer credit.

Financial institutions are offered a choice of two options for calculating penalties:

1. If the interest due under the agreement continues to accrue. In this case, penalties will be 20% per annum.
2. If the bank stops accruing interest, then the penalty amount is 0.1% per day.

In the vast majority of cases, banks adhere to the scheme of calculating penalties in the amount of 20% per annum and at the same time continue to assign interest under the agreement. The law prohibits them from taking fines.

If you do the calculation, then 20% per annum is not so much, only 0.055% per day. For example, if the amount overdue is 10,000 rubles, then the next day it will be credited with 5.5 rubles. But these 5.5 are counted towards the unpaid amount; the next day the penalty will be calculated from 10,005.5 rubles.

If you are in arrears on your loan, it is better not to delay, but to turn to the bank for help, for example, for restructuring. Otherwise, next month, after the next payment is not made, the overdue amount will increase and the penalties will be higher. And the further, the more serious the growth of debt will be.

Execution of the decision to collect penalties

A court decision to collect penalties can be executed voluntarily by the debtor, or the amounts under the decision can be collected forcibly.

The compulsory procedure consists of submitting a writ of execution to the bank in which the debtor’s account is opened. The bank will be obliged to recover funds or seize the account, taking into account the claimant’s application.

The writ of execution can be presented to bailiffs, who have the right to carry out a certain set of measures aimed at collecting debt from the debtor, including seizing accounts, requesting information about the debtor’s property, calling the debtor to give explanations, etc.

However, the claimant must constantly interact with the bailiffs, otherwise, enforcement proceedings, after carrying out certain activities at the initial stage, may simply lie on the shelf and will be remembered closer to the end of the year in order to stop.

Penalties for loans from microfinance organizations

A slightly different situation concerns those who owe money to microfinance organizations. The penalty for the amount of debt is calculated exactly the same as in the case of a bank loan. That is, according to Federal Law-353, this is 20% per annum, plus the rate stipulated by the contract.

But it was the microcredit sector that drove borrowers into real bondage. The fact is that today the marginal rate on loans is 1% per day, which is most often prescribed by lenders, and this is 365% per annum. That is, 365% is added to 20% per annum. As a result, the debt increases dramatically quickly.

In order to protect borrowers from unreasonably high penalties, the amount that microlenders can demand in the form of penalties is legally limited. In the form of penalties and interest, the MFO is not authorized to demand from the borrower more than 1.5 times the loan amount.

Simply put, if the amount of microloans at the time of issuance was 10,000 rubles, then in the form of interest and penalties in case of delay, the microfinance organization can charge a maximum of 15,000. That is, the total amount required for repayment cannot be more than 25,000 rubles.

All legal MFOs comply with this legal norm. All companies are controlled by the Central Bank of the Russian Federation, so it is not in their interests to exceed their powers.

The difference between compensation and penalties in a loan agreement

Compensation in civil law means compensation for losses incurred by a person as a result of non-fulfillment or improper fulfillment of his obligations by a partner under a contract.

The definition of the concept of “losses” is given in paragraph 2 of Art. 15 Civil Code of the Russian Federation. This:

• actual expenses and those that a person will bear (have incurred) to restore the violated right or property - real damage;
• lost income is lost profit.

According to paragraph 1 of Art. 15 of the Civil Code of the Russian Federation, the injured person has the right to full compensation for the losses incurred by him.

If we compare the penalty and compensation for losses, then, as a general rule, the paid amount of the penalty is used to cover losses. If the collected amount is insufficient, more funds are collected in addition to the penalty, and in total they will completely cover all the creditor’s expenses.

Another type of penalty (punitive or alternative) can be provided for in the contract. For some types of legal relations, a special penalty is established by law.

The differences between compensation for damages and penalties are:

1. In the evidence base.
   To collect compensation, i.e. compensation for losses, it is necessary to prove that such occurred, their size, the wrongfulness of the debtor’s act, as well as the cause-and-effect relationship between the actions of the debtor and the losses (determination of the Supreme Court of the Russian Federation dated September 20, 2016 No. 305-ES16- 11215 in case No. A40-253401/2015). When withholding a penalty, one fact is sufficient - improper fulfillment of the obligation,

1. Payment order.
   The procedure for calculating the penalty is determined by the contract; its amount is calculated in the calculation that is attached to the claim/claim or included in their text. Each element of losses is calculated independently and confirmed by a separate document. Actual damage to the property is proven by the act/protocol, the purchase and sale agreement under which the property was purchased and where the price of the item is indicated.

Costs incurred to restore the thing/right are proven by checks. Lost profits are proven by a set of facts and circumstances, taking into account the measures and preparations made by the creditor to make a profit (Clause 4 of Article 393 of the Civil Code of the Russian Federation). For example, concluding a preliminary agreement with a third party with whom it was planned to conclude the main agreement, but as a result of the actions of the debtor this did not happen.

In relation to a loan agreement, compensation means interest, which is accrued in the manner specified in Art. 809 of the Civil Code of the Russian Federation (or Article 317.1 of the Civil Code of the Russian Federation, if the amount of interest is not specified in the agreement). That is, compensation is payment for the use of someone else's money.

It (compensation) can be determined in the form of interest accrued only on the principal debt (clause 2 of Article 317.1 of the Civil Code of the Russian Federation).

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For non-fulfillment or improper fulfillment of obligations under the loan agreement, interest is accrued in the manner prescribed by Art. 395, 811 Civil Code of the Russian Federation. In this case we are talking about civil liability.

Penalty as a measure of liability for failure to fulfill the terms of the loan agreement for the principal amount of the debt and for interest is established separately (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 19, 2013 No. 9423/12 in case No. A40-49847/11-58-241).

According to paragraph 53 of Resolution No. 7, the accrual of interest as a liability does not affect the amount of compensation.

Thus, legal compensation, unlike a penalty in a loan agreement, is calculated only as a percentage. The penalty can be established in the form of a penalty or a fine.

Fine, penalty and penalty - what is the difference between them, you learned from this article. The legislator has put these terms on a par as synonyms. But in fact, a penalty is a general concept for a fine and penalty, which determine the method of its calculation.

Penalties for non-payment of utilities

The type of utility service provided does not matter. If a person does not pay public utilities, they are legally entitled to charge penalties. This issue is regulated by Article 14 of Federal Law No. 155, which explains the issues of payment for utility services.

What ends up happening:

• for the first 30 days after the delay, no penalties are imposed;
• starting from the 31st day, penalties are imposed in the amount of 1/300 of the refinancing rate;
• starting from the 91st day, the amount of the penalty increases to 1/130 of the refinancing rate of the Central Bank of the Russian Federation.

So, the longer the delay, the higher the penalties. But in the case of public services, a penalty forgiveness mechanism is often used. For example, on the eve of the New Year, the service provider often announces a promotion according to which all penalties are written off if the debtor pays off the principal debt. And this is an excellent reason to take advantage of the situation and rid yourself of debt.

In connection with the coronavirus pandemic, the government issued a resolution according to which the accrual of fines and penalties is suspended until January 1, 2021.

We looked at what penalties are, how they work, and the amount of penalties for the most popular obligations. But each form of contractual relationship has its own rules and laws. But the calculation scheme and the principle of operation of penalties are the same everywhere.

Information sources:

1. ConsultantPlus: Tax Code of the Russian Federation Article 75. Penalty.
2. ConsultantPlus: Federal Law-353 On consumer credit (loan).
3. Website of the Bank of Russia: Microfinance: new restrictions on the maximum debt and daily interest rate.
4. Consultant Plus: Decree of the Government of the Russian Federation on the suspension of penalties for utilities.

about the author

Irina Rusanova - higher education at the International East European University in the direction of "Banking". Graduated with honors from the Russian Economic Institute named after G.V. Plekhanov with a major in Finance and Credit. Ten years of experience in leading Russian banks: Alfa-Bank, Renaissance Credit, Home Credit Bank, Delta Credit, ATB, Svyaznoy (closed). He is an analyst and expert of the Brobank service on banking and financial stability. [email protected]

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The procedure for collecting penalties under an agreement in court

To collect penalties under a contract in court, compliance with pre-trial procedure is mandatory. So, in order to collect penalties in court, follow these steps:

• Prepare a written claim to the counterparty with a calculation of the amount of the penalty and an offer to pay the penalty on a voluntary basis
• Send or hand over the claim to the counterparty against signature
• Wait for the period for responding to the claim established by the contract or 30 days after sending the claim
• In the absence of voluntary payment, prepare a claim in court to collect penalties under the contract

ATTENTION : taking into account the amount of claims, it may be necessary to prepare not a claim, but an application for the issuance of a court order

• Send one copy of the claim to the defendant in the case, another copy of the claim, attaching copies of supporting documents and documents stating that the claim procedure has been followed, file or send it to court
• If the court appoints the case under a summary procedure, then monitor the receipt of feedback from the defendant and, if necessary, provide objections. If the case is assigned to trial, take part in the process and justify your requirements
• Wait for the court's decision. If the decision is positive for you, wait until it comes into force
• After the court decision comes into force, obtain a writ of execution and submit it to the bailiffs to initiate enforcement proceedings or to the bank

Comments: 4

Your comment (question) If you have questions about this article, you can tell us. Our team consists of only experienced experts and specialists with specialized education. We will try to help you in this topic:

Author of the article Irina Rusanova

Consultant, author Popovich Anna

Financial author Olga Pikhotskaya

1. Sergey
   04/19/2021 at 21:12 How long does it take to pay penalties on taxes? Are such deadlines legally established?
   Reply ↓ Anna Popovich
   04/20/2021 at 02:29

   Dear Sergey. As a general rule, penalties on demand must be paid within eight working days after receipt, unless the tax office has set a different deadline. Legally, this is regulated by the Tax Code of the Russian Federation.

   Reply ↓

When penalties are not charged

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DEBIT 99 - CREDIT 68 subaccount “Calculations for simplified tax” - the amount of the advance payment under the simplified tax system for the reporting period has been accrued.

If you did not make such a posting at the right time, then your actions will depend on when and what kind of arrears you discovered. If this is an advance debt for the current year and you found it in the current year, then simply use the current date to make the above accrual entry.

DEBIT 91 subaccount “Other expenses” - CREDIT 68 subaccount “Calculations for simplified tax” - the amount of the advance payment for the previous year has been additionally accrued.

The basis for additional tax assessment will be an accounting certificate. In this document, it is advisable to indicate the reason for the arrears.

DEBIT 68 subaccount “Calculations for simplified tax” - CREDIT 51 - an advance payment under the simplified system is transferred to the budget.

DEBIT 99 - CREDIT 68 subaccount “Calculations for penalties” - penalties accrued;

DEBIT 68 subaccount “Calculations for penalties” - CREDIT 51 - penalties paid.

Please note: account 99 should always be used when calculating penalties, regardless of what period you are paying penalties for - for the current or for the past. The accrual of penalties is made on the basis of an accounting certificate, and the payment is reflected on the basis of a payment order.

As mentioned above, in tax accounting under “simplified” taxation, the amount of the “simplified” tax itself and advances for it are not recognized as an expense (subclause 22, clause 1, article 346.16 of the Tax Code of the Russian Federation). The same applies to penalties for this tax - they are not listed in the closed list of “simplified” expenses. Therefore, neither the payment of the “simplified” tax nor the payment of penalties need to be recorded in the Income and Expense Book.

Art. 64 of the Tax Code of the Russian Federation provides payers with the opportunity to receive a deferment (or installment plan) for tax payment in certain circumstances. For federal taxes, the payment period may increase by 1-3 years. It is natural that in this case no penalties are charged.

The period for fulfilling obligations to the budget is increased by a decision of the Federal Tax Service upon the application of a payer whose financial situation does not currently allow the transfer of the obligatory amount due to:

• damage caused by a natural disaster or catastrophe;
• untimely receipt of budget allocations;
• threats of bankruptcy (in case of one-time tax payment);
• conducting seasonal activities, etc.

Authorities at the regional and local levels have the right to expand the list of grounds for granting a deferment (or installment plan) for regional/local taxes, respectively.

A deferment may also be granted for the penalties themselves. For example, at the end of 2021, the Moscow City Duma suspended the accrual of penalties on the property tax of individuals for 2015 - until 05/01/2017, for 2021 - until 07/01/2018, and for 2021 - until 07/01/2019 (Moscow Law dated 12/14/2016 No. 45 c as of November 29, 2017). The measure was applied in connection with the transition to paying tax on cadastral value, since citizens needed more time to understand the new calculation rules.

In case of delay in transferring tax payments, tax penalties are calculated for each calendar day of late payment. The accrual of the penalty begins on the day following the due date for payment of the fiscal payment. The last day of accrual is the day on which the arrears to the budget are repaid.

For example, an organization is required to pay the first VAT payment for the 3rd quarter on October 25. In fact, VAT was paid on October 31. For late payment of VAT, the company is charged a penalty for 6 calendar days: from October 26 to October 31 inclusive.

Exemption from payment of penalties, in accordance with Article 75 of the Tax Code of the Russian Federation, is used very rarely. Such cases include:

• impossibility of repaying arrears due to the seizure of the taxpayer’s property by decision of the tax authority;
• impossibility of repaying arrears due to the suspension of transactions on the taxpayer's accounts by court decision;
• the arrears arose as a result of the implementation of written explanations on the procedure for calculating taxes and fees given by a tax or other authorized government agency. This type of exemption does not apply if the explanation is based on incomplete or incorrect information provided by the taxpayer.

In accounting, to reflect the accrual of penalties, accounts 68 and 69 of the Chart of Accounts are used (Order of the Ministry of Finance dated October 31, 2000 No. 94n). To make it easier to control the calculations of penalties, separate sub-accounts are opened to record them or provide analytical accounting in the context of fiscal payments for which penalties and other sanctions are assessed.

The accrual of penalties is reflected in the credit of accounts 68 and 69, and their payment is reflected in the debit. Amounts accrued for payment are reflected:

• on the calculation date, if calculated by the taxpayer independently;
• on the date of entry into force of the inspection decision, if the accrual is made as part of an on-site or desk inspection.

In tax accounting, when calculating income tax, no tax sanctions are recognized as expenses (clause 2 of Article 270 of the Tax Code of the Russian Federation).