HOW TO CONSIDER COURT COSTS
The judicial procedure for resolving disputes arising in business has become firmly established in our life. Going to courts is always accompanied by financial costs.
Let us consider in detail what legal costs are, what costs arise when applying to the economic court, as well as how they are recognized and accounted for in accounting and tax accounting.
Payment of state duty when going to court - component legal costs
Before filing statement of claim, statements, complaints or petitions to the economic court must be paid a state fee (clause 1.1 of article 251 Tax Code Of the Republic of Belarus (hereinafter - NK)). Without this, the court will leave the application without movement (Article 162 of the Economic Procedure Code of the Republic of Belarus (hereinafter - the COD)), return the statement of claim (Article 163 of the COD) or refuse to accept the application for initiation of order proceedings (Art. The (cassation) complaint will not be considered (Articles 273, 289 of the Code of Civil Procedure).
The state duty paid when submitting documents to the economic court is credited to the republican budget (Article 25-1 of the Budget Code of the Republic of Belarus, Appendix 1 to the Resolution of the Ministry of Finance of the Republic of Belarus dated 20.12.2010 N 156 "On distribution state duty and fines for committing offenses between the republican budget and (or) the relevant local budgets, budgets of state extra-budgetary funds ").
The rates of state duty when applying to the economic court are established by Appendix 16 to the Tax Code.
If the court does not take place, the paid state duty can be returned or offset against the payment of other taxes (Articles 60, 259 of the Tax Code). To do this, the payer must submit an application for the return of the state duty to the tax authority at the place of registration and attach to it the originals of payment orders (receipts) for the transfer of the state duty, as well as a certificate from the economic court for the return of the state duty.
The costs associated with the consideration of the case are an integral part of the court costs
Legal expenses are not limited to the payment of the state fee only.
Court costs consist of state fees and costs associated with the consideration of the case in court (Art. 125 of the Code of Civil Procedure). They include:
sums of money payable to experts, specialists, witnesses and translators;
expenses for the production of examination of evidence at their location;
other expenses recognized by the economic court as necessary (Art. 126 COD).
Other expenses may include the costs of storing material evidence (part 4 of article 87 of the COD), costs associated with the retrieval of evidence (article 101 of the COD), costs of paying for the services of lawyers and other persons providing legal services (article 22 , 77 COD), as well as other expenses recognized by the economic court as necessary (clause 8 of the Resolution of the Plenum of the Supreme Economic Court of the Republic of Belarus of 12/18/2007 N 13 "On the application of the Economic Procedure Code of the Republic of Belarus in the distribution of costs associated with the consideration of the case in the Economic Court ").
Court costs are subject to distribution between the plaintiff and the defendant in proportion to the amount of the satisfied claims (Article 133 of the COD). Other court costs - only after the court finds them necessary. As a result, the main burden of legal costs falls on the guilty party.
Accounting for legal expenses
accounting court expense
The costs associated with the consideration of cases in the courts (Instructions for the use of the Standard Chart of Accounts of Accounting, approved by the Resolution of the Ministry of Finance of the Republic of Belarus of 05/30/2003 N 89 (account 92)) (court costs) are costs not related to the production activities of the organization , and refer to transactions that do not result in future economic benefits. In this regard, they are recognized as non-operating expenses during the period of their implementation in accordance with accounting policies organizations. The amount of legal costs in accounting is determined in the amounts actually incurred (clauses 13, 16 of the Instruction on accounting"Expenses of the organization" approved by the Resolution of the Ministry of Finance of the Republic of Belarus dated December 26, 2003 N 182 (hereinafter - Instruction N 182)).
In accounting, the term "costs associated with the consideration of cases in court" has a broader meaning than the term "court costs" within the framework of Art. 125, 126 COD.
In our opinion, this concept includes all expenses of the organization provided for by the COD when considering cases in court, including those that are unconditionally related to judicial (for example, state duty) and those that are recognized as judicial, provided that the court deems them necessary.
To reflect non-operating expenses, including those related to the consideration of cases in courts, account 92 "Non-operating income and expenses" is intended.
It should be noted that settlements with the budget for taxes, fees, duties are accounted for on account 68 "Settlements with the budget". However, taking into account that the tax authorities do not keep records of the state duty paid by the payers when applying to the court, it is advisable to take them into account on account 76 "Settlements with other debtors and creditors" in the context of the defendants (debtors).
Recognition of legal expenses in accounting with the plaintiff
Court expenses included in non-operating expenses (as other losses and losses) are recognized in the accounting records as they are formed, identified or transferred (clause 21 of Instruction N 182).
Organization in accounting policies must provide for one of the options (clause 12 of the Accounting Instruction "Accounting policy of the organization", approved by the Resolution of the Ministry of Finance of the Republic of Belarus of 17.04.2002 N 62). This option, as recognition as it is identified, is usually used in cases where unrecorded liabilities or assets are found during the inventory, therefore it is not considered in this article.
If the organization, in accordance with the accounting policy, recognizes the costs associated with the consideration of cases in the courts, as it is formed, it should be determined what is the moment of the formation of legal costs, since there is no specific rule in the legislation.
The payment of the state duty from the current account does not mean that court costs in a particular case can be attributed to non-operating expenses, since the statement of claim may not be filed with the court, and the paid state duty can subsequently be credited to the payment of other taxes or to the payment of the state duty for consideration of another court case.
The document confirming that the statement of claim has been submitted to the court is the ruling of the economic court on the acceptance of the statement of claim and initiation of proceedings in the case (hereinafter referred to as the ruling of the court). In this regard, the date of the determination of the court may be the date of formation for the state duty.
At the same time, for other legal costs, for example, for the costs of paying for the services of a lawyer or other person providing legal services, the date of occurrence may be the date of entry into force of the decision of the economic court (hereinafter - the date of the court decision). The decision of the economic court of first instance, as a rule, enters into legal force after 15 days from the date of its adoption, if no appeal is filed (part 1 of article 204 of the Code of Civil Procedure).
Considering the above, when recognizing court costs as the state duty is formed, the moment of formation may be the date of the court decision or the date of the court decision, and for other court costs - the date of the decision of the economic court.
For the purpose of uniformity in the accounting of court costs (state fees and costs associated with the consideration of the case in court) within the framework of one case, we recommend establishing the general moment of the formation of court costs - the date of the court decision. In this case, until the moment of recognition, all costs associated with the consideration of cases in courts are accumulated on the debit of account 76, subaccount 76-3 "Settlements on claims" in the context of the defendants (debtors). After the end of the trial on the basis of the court's decision, expenses that will not be recovered from the defendant are written off by the plaintiff as non-operating expenses as expenses related to the consideration of the case in court, and those subject to recovery from the defendant continue to be accounted for on account 76 subaccount 76-3 until the moment debt repayment.
The court expenses recovered in favor of the plaintiff in the amounts actually received are reflected in the plaintiff's accounting records as part of non-operating income (if they were previously included in the non-operating expenses) as costs associated with the consideration of the case in court. Reflection of such income (as other income) is made in accordance with the accounting policy: as it is formed, revealed or received (clauses 14, 19 of the Accounting Instruction "Income of the organization", approved by the Resolution of the Ministry of Finance of the Republic of Belarus of December 26, 2003 N 181 ( hereinafter - Instruction N 181)).
Let us consider, using an example, how court expenses are reflected in accounting, if they are recognized by the accounting policy as they are formed and the date of the court decision is considered to be the moment of formation.
For the plaintiff (recoverer) who applies the method of recognizing court costs as they are transferred, the moment of recognition is the date of the payment document indicating the withdrawal of money from the current account or the deposit of cash through communication organizations or banks.
Let us consider how legal costs are reflected in accounting, when the accounting policy recognizes court costs as they are transferred.
Recognition of legal expenses in accounting with the defendant (debtor)
On the basis of a court decision, the plaintiff's costs of paying court costs are borne by the defendant and become for him the costs associated with the consideration of the case in court.
Like the plaintiff, the defendant (debtor) recognizes them in accounting as part of non-operating expenses as they are formed, identified, transferred (clause 21 of Instruction N 182). The defendant (debtor) in the accounting policy establishes one of the methods for recognizing expenses and is guided by it during the reporting year.
For the defendant (debtor), who chose the method as it was formed, the moment of recognition of the costs associated with the consideration of the case in court is the date of entry into force of the court decision (hereinafter - the date of the court decision).
For the defendant (debtor), who recognizes court costs as they are transferred, the date of the payment document is the moment of recognition of the costs associated with the consideration of the case in court.
Reflection of expenses related to the consideration of the case in court by the defendant
Tax accounting of court expenses
As already noted, the costs related to the consideration of cases in courts (court costs) are not directly related to the production and sale of products (works, services), but organizations bear them to carry out their activities. In this regard, in order to tax accounting such expenses are included in non-operating expenses and are taken into account in taxation (clause 1, subsection 3.2 of article 129 of the Tax Code).
Article 260 of the Tax Code provides that the state duty applies to the costs of production and sale of products (works, services) taken into account in taxation (Article 260 of the Tax Code). However, taking into account that payers are obliged to pay a state duty when applying to the court for the commission of legally significant actions (Article 248 of the Tax Code), i.e. for judicial trial, the court state fee can be included in the non-operating expenses as court costs. In both cases, the amount of state duty will be taken into account in taxation.
For tax accounting purposes, court expenses are determined on the basis of accounting documents and are reflected in the volume tax period, in which they were actually incurred (paragraph 2 of article 129 of the Tax Code). If in accounting, court expenses are recognized not as they are transferred, but as they emerge, it is necessary to make estimated adjustments.
Reflection of court costs in tax accounting with the plaintiff (recoverer)
Reflection of court expenses in tax accounting with the defendant (debtor)
As you can see, accounting provides for variance in accounting for court costs depending on the moment of recognition, and in tax accounting there is only one moment of recognition - as the actual payment is made.
If legal expenses are recognized in accounting as they are formed, then when calculating income tax, it is necessary to make estimated adjustments (clause 2 of article 129 of the Tax Code).
However, by establishing in the accounting policy a way of recognizing the costs associated with the consideration of cases in the courts, as they are transferred, the organization can get rid of time-consuming calculation adjustments.
At what point and how to reflect in accounting and tax accounting the amount recovered from us, as from the defendant. On August 10, an arbitration court took place, a court decision: to recover from our company the amount of 300,000 rubles, and the costs of the state duty of 11,000 rubles. On September 8, an appeal was filed. On November 2, the appellate court issued a ruling stating that the decision of the arbitration court of August 10 should be left unchanged, and the appeal was not satisfied. The decision comes into force from the date of adoption and within two months can be appealed in cassation.
Expenses must be recorded on the date of entry into force of the court decision. The decision of the arbitration court of first instance shall enter into legal force upon the expiration of one month from the date of its adoption, unless an appeal is filed. In the case of filing an appeal, the decision, if it is not canceled and not changed, comes into legal force from the date of adoption of the decision of the arbitration court of the appellate instance.
Consequently, at the date of the issuance of the ruling of the court of appeal in accounting, the reimbursement of the state duty and the cost of unrecovered give-and-take materials reflect postings:
Debit 91-2 Credit 76; Debit 76 Credit 51.
When calculating income tax, include these amounts in non-operating expenses.
Sergei Razgulin, Actual State Counselor of the Russian Federation, 3rd Class
How to account for legal interest, penalties and interest for late performance of obligations under the contract, presented to the organization
Accounting
Reflect legal interest, fines, forfeit and interest for delay in other expenses (clause 11 of PBU 10/99). Reflect settlements on recognized claims on account 76-2 "Settlements on claims" (Instructions to the chart of accounts):
Debit 91-2 Credit 76-2
- the counterparty's claim for the amount of the forfeit, interest for the delay in the fulfillment of the monetary obligation was recognized.
Include sanctions for delay in expenses on the date of their recognition or on the day the court decision comes into force ().
Disputes between organizations and entrepreneurs are considered by arbitration courts (). If the court decision is not appealed, it comes into force after one month from the date of its adoption (paragraph 1 of article 180 of the APC RF).
OSNO
When calculating income tax, the penalty and interest for late payment include in the structure of non-operating expenses (subparagraph 13 of paragraph 1 of article 265 of the Tax Code of the Russian Federation).
With the accrual method, the date of recognition of expenses in the form of penalties and interest for late payment is defined as the date of recognition of the debt or the entry into force of a court decision on debt collection (, letters of the Ministry of Finance of Russia dated July 9, 2015 No. 03-03-06 / 1/39629, dated July 19, 2013 No. 03-03-06 / 1/28377 and). The recognition by the debtor of the debt can be confirmed by any documents indicating that the debtor agrees to pay the forfeit (interest on delay). For example, a letter from a debtor or an act of reconciliation of debts between organizations (letters of the Ministry of Finance of Russia dated December 23, 2004 No. 03-03-01-04 / 1/189, Federal Tax Service of Russia dated June 26, 2009 No. 3-2-09 / 121) ...
Lawyers' expenses can be written off even if the court is lost
In the list of non-operating costs, court costs are mentioned (subparagraph 10 of paragraph 1 of article 265 of the Tax Code of the Russian Federation). They include state fees and legal costs, which include, among other things, the costs of lawyers (Art., APC RF). Consequently, the costs of legal services associated with representing the interests of the company in court can be taken into account when calculating income tax in any outcome of the legal proceedings. We have given the rules for tax accounting for various legal costs in the table below.
It is no secret that the current legislation on taxes and fees in the Russian Federation raises many questions and ambiguous answers, which undoubtedly gives rise to a lot of disputes between taxpayers and tax authorities, most of which can be resolved only in an arbitration court. The possible cost of participation of an organization (entrepreneur) in the arbitration process, as well as the distribution of court costs and their reflection in accounting and tax accounting is considered by I.A. Baimakova, chief specialist of the Federal Drug Control Service of Russia. As regards the reflection of such expenses in "1C: Enterprise", the article was prepared by E.V. Baryshnikova, consultant.
Introduction (legal fees)
In accordance with Article 101 of the Arbitration Procedure Code of the Russian Federation, court costs consist of state fees and legal costs associated with the consideration of the case by an arbitration court. Court costs incurred by the persons participating in the case, in favor of whom the judicial act was adopted, shall be recovered by the arbitration court from the losing party. If the claim is partially satisfied, the court costs are borne by the persons participating in the case, in proportion to the amount of the satisfied claims. Thus, turning to court for the protection of your rights, you can not only defend your legitimate interests, but also incur additional costs that may not give a positive result.
National tax
The state fee is a mandatory component of court costs when an organization or an entrepreneur applies to an arbitration court. The grounds and procedure for its payment, as well as the provision of a deferral or installment plan, are established by the Tax Code of the Russian Federation.
According to paragraph 1 of Article 333.16 of the Tax Code of the Russian Federation, the state duty is a fee levied on legal and individuals when they apply to state bodies, local self-government bodies, other bodies and (or) to officials who are authorized in accordance with legislative acts RF, legislative acts of the constituent entities of the Russian Federation and regulatory legal acts of local governments, to perform legally significant actions in relation to these persons, provided for by the Tax Code of the RF, with the exception of actions performed by consular offices of the RF.
Organizations and individuals are recognized as payers of state fees when applying for certain legally significant actions or in the event that they act as defendants in courts of general jurisdiction, arbitration courts or in cases considered by justices of the peace, and if the court decision was not made in their benefit and the plaintiff is exempted from paying the state fee.
The size of the state duty in cases considered in arbitration courts is determined by Article 333.21 of the Tax Code of the Russian Federation, and the specifics of its payment when applying to arbitration courts are determined by Article 333.22 of the Tax Code of the Russian Federation. In accordance with the above articles, the amount of the state duty when considering tax disputes is:
- when filing a statement of claim on recognizing a non-normative legal act as invalid and on recognizing decisions and actions (inaction) government agencies, local government bodies, other bodies, officials illegal (subparagraph 2 of clause 1 of article 333.21 of the Tax Code of the Russian Federation): for individuals - 100 rubles; for organizations - 2,000 rubles;
- when filing an appeal and (or) a cassation, supervisory complaint against decisions and (or) decisions of an arbitration court, as well as a court ruling to terminate proceedings on a case, to leave a statement of claim without consideration - 50 percent of the amount of state duty payable upon filing statement of claim not property nature(subparagraph 12, clause 1 of article 333.21 of the Tax Code of the Russian Federation);
- when submitting applications for refund (reimbursement) from the budget Money the state duty is paid on the basis of the disputed amount of money in the amount established by subparagraph 1 of paragraph 1 of Article 333.21 of the Tax Code of the Russian Federation, i.e. based on the price of the claim (subparagraph 5 of clause 1 of article 333.22 of the Tax Code of the Russian Federation). According to Article 103 of the Arbitration Procedure Code of the Russian Federation for claims for the recovery of funds, the price of the claim is determined based on the amount recovered.
In addition to filing a claim, an application for securing a claim should be submitted, which may be filed with the arbitration court simultaneously with the statement of claim or during the proceedings before the adoption of the judicial act, which ends the consideration of the case on the merits. Interim measures in this case there may be a prohibition on the defendant to perform certain actions concerning the subject of the dispute. At the same time, it will also be necessary, when submitting an application for the issuance of an application for securing a claim, to pay a state fee in the amount of 1,000 rubles (subparagraph 9 of clause 1 of article 333.21 of the Tax Code of the Russian Federation).
Consequently, when filing a statement of claim with the court to invalidate the decision of the tax authority and the application for securing the claim, the organization will have to pay 3,000 rubles. (2,000 and 1,000). If the organization submits an application for the return of funds from the budget, say, in the amount of 800 thousand rubles, the amount of the state duty will be 14,500 rubles (11,500 + 1% x (800,000 - 500,000)).
The state fee is paid before filing a claim with the arbitration court. According to Article 126 of the Arbitration Procedure Code of the Russian Federation, a document confirming the payment of the state duty in the prescribed manner and in the amount or the right to receive benefits in the payment of the state duty, or a petition for a deferral, installment plan, to reduce the amount of the state duty must be attached to the statement of claim. If this requirement is violated, the court will issue a ruling to leave the application without movement.
In case of winning, the paid state fee will be refunded in whole or in part in accordance with the proportion of the claims that were not satisfied. The losing party will have to pay the state fee. In accordance with subparagraph 2 of paragraph 1 of Article 333.18 of the Tax Code of the Russian Federation, the defendant is obliged to pay the state fee within 10 days from the date of entry into force of the court decision.
In accordance with paragraph 5 of Article 333.40 of the Tax Code of the Russian Federation, the refund of the paid state duty in cases where the decisions of the courts are taken in full or in part not in favor of state bodies, local authorities or officials is made at the expense of the budget to which the payment was made. Consequently, the state fee will be refunded if the tax authority is the defendant.
Legal costs
The list of legal costs provided for in Article 106 of the Arbitration Procedure Code of the Russian Federation is open. These include, in particular: sums of money to be paid to experts, witnesses, translators; costs associated with on-site examination of evidence; costs of paying for the services of lawyers and other persons providing legal assistance (representatives); and other expenses incurred by the persons participating in the case in connection with the consideration of the case in the arbitration court.
Depending on the factual circumstances of the case in question, the most often incurred costs associated with the preparation required documents for going to court, accommodation and fare lawyers (representatives), as well as payment for their direct participation in the court session.
Much less often, when considering tax disputes, courts are faced with reimbursement of travel expenses, hiring living quarters and subsistence allowance for experts, witnesses and translators. The procedure for recognizing, entering and paying for these costs is determined by Articles 107-109 of the Arbitration Procedure Code of the Russian Federation.
The costs of payment for the services of a representative, incurred by the person in favor of whom the judicial act was adopted, shall be recovered by the arbitration court from the losing party. This procedure for the distribution of expenses is defined in Article 110 of the Arbitration Procedure Code of the Russian Federation.
According to Article 112 of the Arbitration Procedure Code of the Russian Federation, it is stipulated that the issues of legal costs are resolved by the arbitration court considering the case in a judicial act, which ends the consideration of the case on the merits, or in a ruling. Thus, the procedural law does not exclude the possibility of consideration by the arbitration court of an application for the distribution of court costs in the same case, as well as in the event that such an application is filed after the decision by the court of first instance, decisions of the courts of appeal and cassation instances.
Part 2 of Article 110 of the Arbitration Procedure Code of the Russian Federation stipulates that the costs of payment for the services of a representative incurred by the person in whose favor the judicial act was adopted shall be recovered by the arbitration court from another person participating in the case, within reasonable limits. The amount of the recovered amounts is established by the court in each specific case.
The Supreme Arbitration Court of the Russian Federation, in its information letter dated 13.08.2004 No. 82 (clause 20), informed the arbitration courts that, in determining reasonable limits for payment of the representative's services, the following may be taken into account, in particular: the norms of expenses for business trips established by legal acts; the cost of economical transport services; the time that a qualified specialist could spend on the preparation of materials; the prevailing cost of payment for the services of lawyers in the region; available information of statistical authorities on prices in the legal services market; the duration of the consideration and the complexity of the case. Evidence confirming the reasonableness of the costs of paying for the services of a representative must be submitted by the party claiming reimbursement of these costs (Article 65 of the Arbitration Procedure Code of the Russian Federation).
For example, the reasonableness and reasonableness of expenses is confirmed in the following cases:
- in the amount of 169,600 rubles. associated with payment for the services of a representative (Resolution of the FAS of the Far Eastern District of June 21, 2005 in case No. F03-A51 / 05-1 / 1538). This conclusion was adopted by the court taking into account the duration of the consideration of the case - more than 15 months with the participation of a lawyer representing the interests of society in 9 court hearings, the complexity of the case, during the consideration of which a construction and accounting expertise was appointed, the prevailing cost of payment for the services of lawyers, the lower limit of which is higher than the remuneration of the contractor;
- in the amount of 20,000 rubles paid in accordance with the contract for the rendered legal services (Resolution of the Federal Antimonopoly Service of the North-West District of 13.02.2006 on case No. A56-7002 / 2005);
- in the amount of 5,276 rubles. Paid for the lawyer's accommodation and transportation costs incurred (Resolution of the Federal Antimonopoly Service of the North-Western District of 16.02.2006 in case No. A05-26252 / 04-13).
However, when considering the reasonableness of legal costs in a number of other cases, the amount of costs incurred was reimbursed only partially.
For example, when submitting documents confirming that the amount of legal costs incurred amounted to 50,494 rubles, the appellate instance concluded that only 1,000 rubles were justified in favor of the Company. legal aid costs. The cassation instance confirmed this conclusion: "The named amount is reasonable and determined by the court of appeal, taking into account the availability of sufficient and affordable uniform judicial practice in cases similar to the one under consideration, as well as taking into account the consideration of the case, which is not particularly difficult, in one court session in each of the three courts "(Resolution of the Federal Antimonopoly Service of the North-West District of 19.12.2005 No. A56-9826 / 04).
In another case, the company incurred expenses under the contract for the provision of legal (consulting) services at all stages of the process, including studying documents, preparing and filing a statement of claim, consulting taxpayer's staff members sent to participate in court hearings in the amount of RUB 50,375. The court of appeal concluded that, taking into account the principle of reasonableness of costs, taking into account the nature of the claimed dispute and the degree of complexity of the case, the amount of legal costs recovered is 5,000 rubles (Resolution of the FAS North-West District of 10.01.2006 No. A56-9825 / 2004).
As the analysis of arbitration practice shows, basically legal costs are recognized in the amount actually incurred if they are total amount legal costs do not exceed 20-30 thousand rubles. So, when hiring lawyers, it should be borne in mind that the amount of expenses incurred may not be reimbursed in full.
It is also necessary to pay attention to the expediency and reasonableness of attracting a third-party representative if there is a lawyer on the staff of the organization. When proving the validity of attracting a specialist from outside, one should proceed from the functional duties of a full-time lawyer (Resolutions of the FAS of the Volgo-Vyatka district of 08.08.2005 in case No. A82-11632 / 2004-37, FAS of the Moscow district of 18.07.2005 in case No. KA-A40 / 6315-05).
Therefore, when applying to the arbitration court, one should not only think about collecting evidence, on the basis of which the court can establish the presence or absence of circumstances substantiating the claims and objections of the persons participating in the case, but also documentary evidence and reasonableness of the costs incurred associated with the preparation and consideration of cases in court. Such documents may include an agreement, which provides for a specific list of services provided, an act of their provision, a detailed report on the services actually performed, payment documents.
In conclusion, it should be noted that if the previously adopted court decision is subject to cancellation, for example, in the cassation instance, then the court decision on the recovery of court costs is also subject to cancellation.
Accounting and tax accounting of legal costs
In accounting, court expenses and arbitration fees are reflected in the structure of non-operating expenses (clause 12 of PBU 10/99 and clause 10 of clause 1 of article 265 of the Tax Code of the Russian Federation). The state duty in accordance with paragraph 10 of Article 13 of the Tax Code of the Russian Federation is attributed to federal fees and is taken into account in tax accounting in accordance with subparagraph 1 of paragraph 1 of article 264 of the Tax Code of the Russian Federation as part of other expenses associated with production and (or) sale.
In accordance with paragraph 1 of Article 272 of the Tax Code of the Russian Federation, expenses accepted for tax purposes are recognized as such in the reporting (tax) period to which they relate, regardless of the time of actual payment. In connection with the foregoing, the costs of paying court costs are accounted for for tax purposes at the time they arise, regardless of the date of the decision by the court, i.e. at the time of filing a statement of claim.
According to paragraph 2 of Article 129 of the Arbitration Procedure Code of the Russian Federation, when making a ruling on the return of the statement of claim, the arbitration court decides on the return of the state duty paid by the plaintiff from federal budget... The amount of the state duty to be reimbursed by the defendant or returned from the budget is reflected in the structure of non-operating income as of the date of entry into force of the judicial act (letter of the Ministry of Finance of Russia dated 01.07.2005 No. 03-03-04 / 1/37).
For organizations using the simplified tax system, from January 1, 2006 (read about other changes in Chapter 26.2 of the Tax Code of the Russian Federation), the costs of paying court costs and arbitration fees are provided as part of expenses that reduce the taxable base when calculating the single tax (sub. 31, clause 1 of Art. 346.16 of the Tax Code of the Russian Federation). Previously, only the costs of paying the state duty in accordance with subparagraph 22 of paragraph 1 of Article 346.16 of the Tax Code of the Russian Federation could be taken into account in the composition of expenses.
Considering the above, consideration of a tax dispute in court may entail significant financial expenses organizations, the largest part of which are the costs of attracting outside specialists. According to the author, in most cases, legal costs can be significantly reduced if the organization has a staff member who has sufficient competence to represent the organization's interests in court. Analysis of arbitration practice shows that violations detected by tax authorities and, as a result, many cases considered by courts are "typical" and do not require mandatory involvement tax lawyers... Litigation costs may be limited to the costs of preparing a statement of claim or providing legal consulting services. Involvement of specialists, as a rule, is necessary when considering extraordinary and especially complex issues. tax legislation, as well as in the case of decisions tax authorities on bringing the taxpayer to responsibility on a large scale.
Thus, the predominantly positive arbitration practice for taxpayers in many difficult issues tax legislation allows us to conclude that proving one's position in court is more effective and more expedient than uncomplaining payment of the amounts of accrued taxes and fines.
Reflection of legal costs in "1C: Enterprise"
Let us consider the procedure for accounting for state duties and legal costs in the programs "1C: Enterprise 7.7" and "1C: Enterprise 8.0" using an example.
Example
On February 1, 2006, Spectr LLC filed a property claim with the Moscow Arbitration Court. When Spektr LLC applied to the court, a state fee of 2,000 rubles was paid. In the course of the court case, OOO Spectr incurred expenses for legal services in the amount of RUB 4,800.
IN "1C: Accounting 7.7" the document is used to calculate the state duty " Accounting information", which has two tabs. On the" Accounting "tab by posting
Debit 20 (26, 44) Credit 68.10 is reflected the accrual of tax.
As for tax accounting, it should be noted that in accordance with the Tax Code of the Russian Federation (Art. 264 p. 1. p. 1), the state duty is included in other costs associated with production and sales. For correct reflection in tax accounting of this operation in the analytic to the expense account, you must select from the directory "Cost Items" ("Circulation Costs") the item for which the expense type "Taxes and Fees" is set.
On the "Tax accounting" tab, by clicking on the "Fill in tax" button, it is necessary to create a transaction for tax accounts. Thus, this document will form two entries: for accounting and for tax accounting:
In tax accounting, the expenses associated with the payment of the state duty will be reflected in the "Register of accounting for other expenses of the current period".
To reflect the payment of the state duty, the document "Statement" is used (the main menu Documents - Statement). In the tabular part of the document, when filling out the statement line in the field "Correspondent account", you must select account 68.10 "Other taxes and fees". When posted, the document generates a posting Debit 68.10 Credit 51, reflecting the transfer of tax to the budget.
In accordance with PBU 10/99, court expenses (costs) are reflected as part of non-operating expenses on account 91 "Other income and expenses". To reflect legal costs in accounting in "1C: Accounting 7.7", the document "Services of third parties" is used. When filling out the tabular part of the document in the column "Correspondent account", you must select account 91.2 "Other expenses". For correct reflection in tax accounting of this business transaction in analytics to the expense account, you must select from the directory "Items of other income and expense" the item for which the type "Other non-operating income and expenses" is set. When posting, the document will generate transactions:
In tax accounting, the costs associated with legal costs will be reflected in the "Register of accounting for non-operating expenses of the current period" (main menu Tax accounting - Registers of reporting data).
Consider the order of reflection of these operations in the program "1C: Accounting 8.0"... The procedure for reflecting the costs associated with the payment of the state duty in "1C: Accounting 8.0" is similar to the procedure in "1C: Accounting 7.7" - for this purpose, the document "Accounting certificate" is also used. The fact of payment of the state duty in "1C: Accounting 8.0" is reflected in the document " Payment order outgoing ". On the toolbar of this document, click the" Operation "button to set the type of operation, in this case, select -" Tax transfer ".
To account for legal costs, the document "Receipt of goods and services" is used (main menu Main activity - Purchase). The document "Receipt of goods and services" is universal and with its help you can reflect various transactions for the purchase of goods, fixed assets, equipment, etc. The type of operation that will be performed as a result of document posting is determined in the form of a document using the "Operation" button. When choosing the type of operation, the corresponding name of the document is automatically generated and, if necessary, the composition of the columns of the tabular section of the document is changed. In this case, using the "Operation" button, you must select the type of document "Purchase, commission". The tabular section of the document is divided into several tabs. To display information about legal costs, you must use the "Services" tab. In the tabular part of the document in the column "Accounting account (BU)" and "Accounting account (OU)" select account 91.2 "Other expenses". On the tab "Settlement accounts" indicate the account of settlements with the counterparty 76.5 "Settlements with other suppliers and contractors". "Accounting accounts" and "Settlement accounts" in the document can be filled in automatically in accordance with the default values specified in the information registers (Information registers "Item accounting accounts" and "Settlement accounts with counterparties"), but are always available for editing in the document ...
When posting, the document will generate transactions:
Debit 91.2 Credit 75.6 - in the amount of 4,067.80 rubles; Debit 19.3 Credit 76.5 - in the amount of VAT 732.20 rubles.
Please note that in order to reflect transactions in tax accounting, the "Reflect in tax accounting" flag must be set in the document header. One of the advantages of "1C: Accounting 8.0" is the availability of a tax accounting chart of accounts, which is similar in structure of accounts and analytics to an accounting chart of accounts, which greatly facilitates the user to compare accounting and tax accounting data.
To analyze accounting data in "1C: Accounting 7.7" and "1C: Accounting 8.0", you can use standard reports " Turnover balance sheet by account "," Account analysis "," Account card "by expense accounts - 20, 26, 44; financial results- 91 and account 68 "Calculations of taxes and fees".
In accordance with clause 4 of PBU 10/99 "Expenses of the organization" (hereinafter - PBU 10/99) expenses, depending on their nature, conditions of implementation and activities of the organization, are divided into:
- expenses for common types activities;
- other expenses.
Expenses for ordinary activities are expenses associated, in particular, with the manufacture and sale of products, the purchase and sale of goods, with the performance of work, the provision of services (clause 5 of PBU 10/99). Expenses other than those incurred in the ordinary course of business are treated as miscellaneous.
Expenses in the form of rent can be accounted for by the organization both as part of expenses for ordinary activities and as part of other expenses, depending on the use of the leased property.
In the situation under consideration, the organization will have to make expenses, which are the repayment of debt in the form of overdue rent on the basis of a court decision.
Concerning specified expenses in the form of payment of the principal amount shall be reflected in other expenses using account 91 "Other income and expenses" in correspondence with account 76 "Settlements with various debtors and creditors", subaccount "Settlements on claims".
According to clause 12 and clause 14.2 of PBU 10/99, compensation for losses caused by the organization is accepted for accounting in the amounts awarded by the court or recognized by the organization.
At the same time, in accordance with clause 18 of PBU 10/99, expenses are recognized in that reporting period, in which they took place, regardless of the time of the actual payment of funds and other form of implementation (the assumption of the temporal certainty of the facts of economic activity).
Consequently, the necessary entries in the accounting should be reflected on the date of the entry into force of the court decision:
- 1,393,203.52 rubles. - an expense is recognized in the form of overdue rent.
As the debt is repaid in the accounting, it will be necessary to make the following entry:
- 100,000 rubles. - transferred (partially) the amount to pay off the debt.
Accounting for state fees
Court expenses in the form of state duty incurred by the plaintiff and subject to collection by the decision of the arbitration court from the defendant, as of the date of entry into force of the court decision, are attributed by the plaintiff to other income and are reflected by the entry on the credit of account 91 in correspondence with the debit of account 76 "Settlements with different debtors and creditors "(Clause 7 PBU 9/99" Income of the organization "). Accordingly, in the accounts of the respondent, the amounts of compensation for legal costs paid to the plaintiff are related to other costs and are also recorded in the accounts as of the date of entry into force of the court decision.
The entries for reflecting the amount of reimbursed state duty will be similar to the entries made in accounting for the recognition of expense in the form of overdue rent:
Debit 91, subaccount "Other expenses" Credit 76, subaccount "Settlements on claims"
- 26 932.04 rubles. - the expense was recognized in the form of a state duty, subject to collection by a court decision.
On the date of repayment of the debt, the following entry will need to be made in the accounting:
Debit 76, subaccount "Settlements on claims" Credit 51
- 26 932.04 rubles. - the amount of the state duty has been transferred.
Commentary on the letter of the Ministry of Finance of Russia dated 20.09.2010 No. 03-03-06 / 1/597: income tax - recognition of court costs
The organization's counterpart sued her trying. Now the organization must pay off the debt under the contract with this counterparty, pay him a forfeit, and also reimburse part of the state duty paid by the counterparty for considering the application in court.
The published Letter lists the costs associated with the payment of the amounts owed by the court, which the organization is entitled to accept for the purpose of calculating income tax. In addition to the amounts paid on account of the accounts payable under an agreement with a counterparty, the company will be able to take into account the following costs:
- for legal, informational, consulting and other similar services (subparagraphs 14, 15 of paragraph 1 of article 264 of the Tax Code of the Russian Federation);
- in the form of sanctions for violation of contractual (debt) obligations in the form of penalties, fines, penalties, compensation for material damage (subparagraph 13 of paragraph 1 of article 265 of the Tax Code of the Russian Federation);
- for court costs and arbitration fees (subparagraph 10 of paragraph 1 of article 265 of the Tax Code of the Russian Federation).
note
: does not apply to legal costs and is not recognized in the expenses of the organization paid performance fee, regulated by Art. 112 of the Federal Law of 02.10.2007 N 229-FZ. The enforcement fee in its essence refers to measures of coercion in connection with non-compliance with the legal requirements of the state, that is, it is equated to sanctions, and in accordance with paragraph 2 of Art. 270 of the Tax Code of the Russian Federation is not taken into account for tax purposes (Letter of the Ministry of Finance of Russia dated 08.04.2009 N 03-03-06 / 1/227).
Court expenses
Let us explain what applies to court costs... According to Art. 101 of the Arbitration Procedure Code of the Russian Federation to them relate:
- National tax;
- costs associated with the consideration of a case by an arbitration court.
In turn, legal costs may consist of the following costs (Article 106 of the Arbitration Procedure Code of the Russian Federation):
- sums of money to be paid to experts, witnesses, translators;
- costs associated with the examination of evidence on site;
- costs of paying for the services of lawyers and other persons providing legal assistance (representatives);
- costs legal entity to be notified of a corporate dispute if federal law there is a duty of such notification;
- other expenses incurred by the persons participating in the case in connection with the consideration of the case in the arbitration court.
Roughly the same list is provided for in Art. 88 of the Civil Procedure Code of the Russian Federation.
Pay attention to such a point as the distribution of legal costs. For example, the same state duty paid by the plaintiff (the counterparty who collects debts and forfeit from the organization) is shifted to the losing party, that is, to the opponent organization. But the decision on the redistribution of court costs must be made by the court. This may be a court of first instance, an appellate court, etc., depending on when the relevant claim was made by a party (Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of 05.12.2007 N 121).
In addition to the state duty, other court costs may also be redistributed. In this case, the courts proceed from reasonable limits of reimbursement of legal costs.
Date of recognition of legal costs
The date of recognition of legal costs primarily depends on the method of accounting for the income and expenses of the company used by the taxpayer. With the accrual method, accounting is made in accordance with Art. 272 of the Tax Code of the Russian Federation. Thus, expenses accepted for tax purposes, taking into account the provisions of this chapter, are recognized as such in the reporting (tax) period to which they relate, regardless of the time of the actual payment of funds and (or) other form of their payment.
As noted in the published Letter, the date of non-operating and other expenses is determined (unless otherwise established by Articles 261, 262, 266 and 267 of the Tax Code of the Russian Federation) in accordance with clause 7 of Art. 272 of the Tax Code of the Russian Federation, that is, for expenses in the form of fines, penalties and (or) other sanctions for violation of contractual or debt obligations, as well as in the form of amounts of compensation for losses (damage), expenses are accounted for:
- the date of recognition by the debtor of the debt (voluntary recognition);
- the date of entry into force of the court decision (in case of enforced collection).
