Agreement assignment debt between legal entities. What is a cessia agreement

Examination Articles:S.P. Rodyushkin, Legal Consulting Service Garant, Professional Accountant Expert

The tax code provides for the procedure for accounting for income and expenses obtained on concessions of the right of claim. Moreover, the rules are spelled out both for a new lender (cessionary) and for the previous lender (cedenta). Nevertheless, in practice, the provisions of the Code require explanations.

For the Cedentus, the assignment of the right demand is rare when the profit is turned off. Protecting cases by the result of the assignment operations of the right of claim is a loss. It takes into account the length of the non-evalization costs at the date of signing the act of concession of the right of claim (the letter of the Ministry of Finance of Russia dated September 28, 2007 No. 03-03-06 / 2/187). Avota The order of his write-off depends on whether the right of the right of claim occurred, before the fulfillment of the obligation or after the expiration date has expired. Moreover, the rules will differ from the specified cases.

If the payment period has not yet come out

Often, the supplier of goods (works, services) for any reason can not wait for the term when the buyer will list money for the obtained values \u200b\u200bor services. In this case, he can transfer the right to claim a new lender. The negative difference between the amount of the debt that was not redeemed by the buyer and the exercise of the obligation is recognized as a loss. Moreover, the size of the loss may not exceed (paragraph 1 of Art. 279 of the Tax Code of the Russian Federation) the amount of interest that the taxpayer would pay on a loan or a loan equal to income from the assignment of the right of claim. This limit is calculated for the period from the date of the concession to the date of payment provided by the Treaty on the sale of goods (works, services) by the account of the provisions of Article 269 Tax Code (paragraph 1 of Art. 269 of the Tax Code of the Russian Federation), which refers to the calculation marginal value interest on debt obligations based on the refinancing rate of the Bank of Russia.

Example
On April 6, 2009, the North company shipped the East of the East of the batch of goods in the amount of 413,000 rubles. (including VAT - 63,000 rubles.) According to the terms of the contract, the buyer must list the money to the current account of the North, until 12.05.2009.
In April, Oooo "North" arose financial difficulties, Issue from the account by the company you needed money. To replenish the current account, "North" concluded on 04/29/2009 the contract of assignment of the right of claim to a third party - the West company.
According to the terms of the contract, the price of the assignment of the right of claim is 350,000 rubles. The negative difference, obtained by the North LLC of the results of the Requirement of the Requirement, will be:
413 000 - 350 000 \u003d 63 000 rubles.
Now it is necessary to determine what amount this loss can be taken into account tax expenses. The period of the statement of signing the contract of the assignment of the right of claim (29.04.2009) until the buyer's repayment (Vostok) LLC) of the supply contract (12.05.2009) is 14 days. The refinancing rate of the Bank of Russia on 29.04.2009 is 12.5% \u200b\u200bper annum.
The amount of interest that the North would have to pay if she had taken a loan in the amount of 350,000 rubles. For a period of 14 days, would be:
350 000 rub. × (12.5% \u200b\u200b× 1.5): 365 days. × × 14 days \u003d 2517,12 rub.
Thus, LLC North can take into account when forming a base for income tax amount of a loss under the contract of assignment of the right of the rule of claim by the rule of 2517,12 rubles. The rest of the loss: 63 000 - 2517,12 \u003d 60 482.88 rubles. - It is impossible to take into account the length of the tax expenses.

As you can see, with a concession of the right claim for the obligation before the payment of the buyer's payment, the previous creditor (cedent) is the lion of the disadvantageous situation of vision of taxation of income. First, it is entitled to take into account the length of the non-dealerization costs for income tax only part of the loss from the realization of the right of claim. Secondly, in charge of the fact that in accounting, the amount of this loss is recognized in the costs of the complete amount, the voluntary of the Square arises to apply PBU 18/02, approved by the Order of the Ministry of Finance of Russia from 19.11.2002 No. 114n

The term passed, the adeneg is no

If the buyer did not pay the first goods soldered to him, stipulated by the contract, then a resistant such debt passes the parcel of overdue. The right of claim for this debt, the lender can also render a third party. The loss that may result in the result of the concession of the right of the debt claim, the repayment period of which has already passed, take into account the length of the non-evalization costs under the order:

• 50 percent of the amount of the loss are subject to inclusion of the shortest possible cost of the assignment date of the claim;
• 50 percent of the amount of the loss are subject to inclusion of the shortage of non-evaluation costs after 45 calendar days Complete assignment of the right of claim.

Obviously, the provision is beneficial for the provision of the right of debt claim after the expired payment period provided for by the Treaty. He is entitled to consider the entire amount of the loss received from the implementation of the realization. True, if the dates of recognition loss fall to different reporting periodsthen the voluntary has the need to apply PBU 18/02.

Concession Sprinka

In practice, there are situations where the price of the contract of the assignment of the right of claim exceeds the amount of debt, which is the object of the contract. As a rule, it happens to listening when, after the debt repayment period, the debtor is obliged to pay yet Ishtrafnaya sanctions for late payment under the supply contract ( contract IT.. d.). Thus, the cedent transfers the right to demand not only on the principal debt for the goods, but the right of the requirements for fines.

G. heads Code of the Russian Federation
Article 384.
<...> The right of the initial lender passes to a new lender in volume and on the conditions that existed by the time of the transition of the right.<...> A new lender is transferred to the rights that ensure the fulfillment of the obligation, as well as other rights related to the requirement, including the right to unpaid interest.

However, the Supervisory Centers for Profit Tax Consumption can take into account only the amount of the principal debt. Avot recognize the sums of accrued penalties he has no right. The amount of accrued sanctions to the subject will have to include the total income to identify the amount of income, despite the fact that after the conclusion of the concession of the right to the right of the amount of the fines of the cedent, can not receive.

Tax calculations Cessionary

The acquisition acquired right claims may be implemented in 2 ways: either to render a third party or wait for repayment of debt. IVTE Ivdrith case is the warnings of financial services (paragraph 3 of Art. 279 of the Tax Code of the Russian Federation).
Revenue from the implementation of financial services is defined as the value of the property due to the subsequent assignment of the right of claim or termination of the obligation. When determining the tax base, a treesome is entitled to reduce the income received from the realization of the right of claim, the amount of expenses to acquire the specified right to demand a debt.
The date of receipt of income in the implementation of financial services is defined as the day of the subsequent concession of this requirement or execution by the debtor of this requirement (paragraph 5 of Art. 271 of the Tax Code of the Russian Federation).

Moreover, with the further implementation of the assignment of the right of the claim to a third party of the date of receipt of income, the day of signing by the Parties of the Act of the assignment of the right of claim is recognized.
Together, the costs associated with sporal rights claim are taken into account in the formation of a BTV's profit tax rate when the censionary has received the appropriate income. The date for which these costs were produced, the role does not play.
If the contract of delivery (IT contract.) It is provided that the debtor (the buyer of goods (works, services)) fulfills its obligation to underline several tax periods, then the cessionary recognizes income in parts at the repayment date. The amount of income corresponds to the amount of the money listed by the bulk (tax) period.

As for the recognition of expenses with such a schedule for repayment of debt, they are taken into account as the obligations of the debtor of the NUMME, the proportional part of the pudded tax period (Letter of UMNS of Russia in Moscow dated 04/12/2004 No. 26-12 / 24826).

Example
On May 20, 2009, North LLC acquired the right demand for the debt of LLC "Pad Pad". The contract price assignment of the right of claim - 100,000 rubles. The amount of due debt is 125,000 rubles. According to the supply contract, the acquired products of West LLC pays parts according to the payment schedule:
. 06.06.2009 - 25 000 rubles;
. 09/02/2009 - 45 000 rubles;
. 12/02/2009 - 55,000 rubles.
We define the share of purchased value of the acquired right of the claim:
100 000: 125 000 \u003d 0.8, or 80%.
Consequently, at the date of receipt of money, the accuracy of the obligations accountant LLC North can take into account 80% of the amount of money received.

0/02/2009
The amount of expenses will be:
25 000 rubles. × 80% \u003d 20 000 rubles.
The tax base will be equal to:
25 000 - 20 000 \u003d 5000 rubles.

0/02/2009
Expenses:
45 000 rubles. × 80% \u003d 36 000 rubles.
The tax base:
45 000 - 36 000 \u003d 9000 rubles.

02.12.2009.
Expenses:
55 000 rub. × 80% \u003d 44 000 rub.
The tax base:
55 000 - 44 000 \u003d 11 000 rubles.
Thus, in the formation of a base for income tax over the first half of 2009, the Company will accrue the income tax in the implementation of the financial services of the CSUMM 5,000 rubles. When calculating income tax for 9 months of 2009 the tax base will be increased in the amount of 9000 rubles, analog base for 2009 - by 11,000 rubles. In the implementation of financial services.

As we have already written, the cessingionary has the right to transfer the right to the demand for the debt to a third party. In this case, the costs of acquiring the right of claim reduce the income from its implementation. Cessionary, upon subsequent implementation, the requirement of the claim acquires the status of a cable. Accordingly, the accounting of earning income it leads in the same manner, which is provided for the primary concession of the right of claim. Profit from the subsequent concession of the right requirement increases income tax base. Now the time is the loss from the realization of the right of claim as a financial service, the tax base does not reduce (the letter of the Ministry of Finance of Russia dated 10.03.2006 No. 03-03-04 / 1/205).

It happens that the acquired right of claim is so implemented. That is, the debtor did not transfer money to the new lender of the execution, provided for by the contract, the time expired of limitation Or the debtor was liquidated. In the case of the censionary case tolerates the debt of the hopeless inadid (paragraph 2 of Art. 266 of the Tax Code of the Russian Federation). To recognize this debt of dubious cannot be recognized, because any debt is considered to have arisen with the demolition of goods, the performance of work, the provision of services. (paragraph 1 of Art. 266 of the Tax Code of the Russian Federation). I agree with the age of the Ministry of Finance of the Ministry of Finance of Russia (the letter of the Ministry of Finance of Russia dated 03/23/2009 No. 03-03-06 / 1/176). In their opinion, the amount of debt on the acquisition of the right to the right of claim is not related to the sublation of goods (works, services), may be taken into account the length of the non-evalization expenses on the basis of subparagraph 2 of paragraph 2 of Article 265 of the Tax Code.
Thus, the debt obtained under the assignment agreement right is an experienced hopeless, take into account the order of income tax purposes, which is established by paragraph 2 of Article 279 of the Tax Code to write off damages. Aimenno: 50 percent of the amount of debt belongs to the length of the cost of assignment of the right of claim, the Against part - in 45 days.

S.V. Razgulin, Deputy Director of the Department of Tax and Customs Tariff Policy of the Ministry of Finance of Russia:
Payment period under the assignment agreement The right of claim determines the procedure for accounting for losses from assignment of the right of claim for income tax purposes. The Tax Code provides 2 options for accounting for a loss against the assignment of the right of claim, depending on when this agreement was concluded: before the date of payment or after its offensive (PP. 1, 2, Article 279 of the Tax Code of the Russian Federation).
In case of change in the contract of delivery, the terms of date in accordance with Chapter 29 "Change and Termination of the Agreement" Civil Code (including in unilaterally) To the date of the assignment of the right of the requirements of payment, the terms of the contract is determined by the terms of the contract, taking into account the changes made to it before the redemption date of the claim. A similar opinion is set out in the letters of the Ministry of Finance of Russia of September 16, 2008 No. 03-03-06 / 1/123, No. 03-03-06 / 2/129.

When concluding an agreement assignment to the right of debt, a new lender must be transferred source documentsconfirming this debt. Otherwise, it will be impossible to recover it from the debtor (Resolution of the FAS of the Ural District of September 10, 2013 No. F09-2213 / 12). There are other nuances ...

The right of claim can be given in

The right to require a debt belonging to the creditor can be transferred under the contract or on the basis of the Law (Art. 382 of the Civil Code of the Russian Federation).
If the transfer of rights to the new lender occurs on the basis of the contract, then such an agreement on the transition of the creditor's rights is called, or zessey. At the same time, the lender, which is inferior to his demand for the debtor, is referred to as a cedent, and the lender who received such a law is a hypothesionary.

In other words, in accordance with civil law under the concession of the right of claim (CESSIY), an agreement on the replacement of the previous lender, which leaves the obligation, to another person to which all the rights of the previous lender are transmitted.
At the same time, a new lender does not conclude with the debtor of a new independent agreement, and enters into an already concluded deal as a party and may require only the fulfillment of the conditions of the transaction that the previous lender has concluded.

For example, under the Agreement, the enterprise-supplier shipped to the Buyer to agricultural products. Having fulfilled its obligations, it is entitled to demand from the other side. In accordance with civil law, such debt is the property right belonging to the supplier as a lender, which can be given in to another person.

By concluding a cessary agreement, the seller is inferior to the right to demand payment from the Buyer accounts receivable Third party (new lender).

The contract specifies the requirements

In the CESSIA Agreement, specific requirements arising from the transaction concluded, the right to which are transmitted, with an obligatory reference to its details. The contract in which these conditions are missing is considered not inconclusive, and the new lender who acquires the right to claim such a contract will not be grounds for presenting the requirements for the debtor.

Cessia is committed in the same form that was established for the initial transaction, the rights of which are inferior to (Article 389 of the Civil Code of the Russian Federation). For example, if the rights of the transaction claim made in a simple writing are inferior, then the cessia agreement is a simple writing. And if the main transaction, the rights for which are inferior, was subject to state registration or notarial assurance, then the cessia agreement must pass the relevant procedures.

In accordance with Article 384 of the Civil Code of the Russian Federation, unless otherwise provided by law or contract, the right of the initial lender proceeds to a new lender in volume and on the conditions that existed by the time they are transition. In particular, for a new lender (cessingionary), the condition of the pledge, guarantion, interest, and other methods of ensuring the obligation remains strength. All the advantages that are associated with the transferred right, including the rights that provide the fulfillment of the obligation, as well as the right to receive a penalty, are also transmitted to it. In addition, the new lender acquires all the risks associated with the non-fulfillment of the debtor of the commitments made.

In practice, there are cases when the initial lender, yielding the right claim for the obligation to a third party, changes the contents of the requirement: for example, the supplier, having a money demand for the buyer, gives the new lender the right to demand from the buyer the supply of raw materials, products. Such a cessia agreement will be invalid, since the supplier has no commodity requirements for the buyer.

Requirements are confirmed by documents

Cedent, retireing from the obligation, interrupts all relations with the debtor. Therefore, when making a concession deal with the right of claim, the Parties of the Cessia Agreement it is necessary to make certain actions indicating the complete and unconditional change of persons in the obligation, within the framework of which the inferior right of the claim arose. In particular, the lender who lost the requirement to another person is obliged to convey to him certifying the right of claim, and report information that is important for debt collection (paragraph 2 of Art. 385 of the Civil Code of the Russian Federation). If this is not done, then in subsequent requirements will be difficult to prove. In particular, the judges in the resolution of the FAS of the Ural District of September 10, 2013. No. F09-2213 / 12 refused the plaintiff who had bought the right to demand and attempted to recover it from the debtor, precisely because of the lack of primary.

Failure to submit documents cannot serve as a basis for recognizing a transaction on transferring the right of the claim failed. It comes from the fact that to the new creditor of the right (requirements) general rule Transfer at the time of the execution of such a transaction. And documents certifying these rights are transmitted on its basis (an informational letter of the Presidium of the Russian Federation of October 30, 2007 No. 120).

For the transfer of another person's rights, the lender does not require the consent of the debtor, unless otherwise established by law or contract (paragraph 2 of Art. 382 of the Civil Code of the Russian Federation). However, the debtor must be notified in writing about the transition of rights. As a notification, you can consider a copy of the contract of Cessia, a letter and another document.

At the same time, notify the debtor about the transition of rights may be both censionary and cedent.

If the debtor was not written in writing about the transition of rights to another person, the new lender is risk. In this case, the payment of debt to the initial lender is recognized by the fulfillment of the obligation to the appropriate lender.

Loss is recognized as restrictions

In the tax accounting, revenue from the sale of property rights is recognized as an income from the implementation of the demand for a concession to a new lender, which is defined as the day of signing the relevant Act (paragraph 5 of Art. 271 of the Tax Code of the Russian Federation). At the same time, the organization has the right to reduce the income from the sale of property rights at the price of their acquisition (sub. 2.1 of paragraph 1 of Art. 268 of the Tax Code of the Russian Federation). The loss received from the realization of the right of claim is taken into account by the enterprise as part of the non-engine expenses (sub. 7, paragraph 2 of Art. 265, paragraph 2 of Art. 268 of the Tax Code of the Russian Federation). Features of determining the tax base during assignment (assignment) The rights of the claim are established by Article 279 of the Tax Code of the Russian Federation. It regulates the procedure for recognizing costs both when the primary assignment of the right of claim and under the next one. Consider them.

If the right is inferior to the seller of goods

With a primary assignment of the right, the order of recognition of expenses depends on whether or not a payment period for products, work or services in the transaction has come, which are transmitted. If the requirement is inflicted before the date of payment, not the entire loss is included in the cost of expenses. But only in the amount, which is calculated taking into account the requirements of Article 269 of the Tax Code of the Russian Federation. Recall that the specified article regulates the procedure for accounting interest on debt obligations.

So, the amount is taken to the costs that the cedent would pay in the form of interest on the debt obligation equal to the income from the assignment of the right of claim. At the same time, the indicated amount is calculated for the period from the date of the assignment of the right before the date of payment provided for by the Treaty for the sale of products.

If the debt is sold after the occurrence of the contract for the sale of goods (works, services) of the payment period, the loss on this transaction is included in nonealization expenses in the following order:

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

At the same time, the loss is recognized to tax purposes in the full amount without any restrictions. This point of view is adhered to in their letters and financial department (a letter of the Ministry of Finance of Russia of March 25, 2013 No. 03-03-06 / 1/9221).

Such an order of recognition of expenses is also applied to the taxpayer - a lender for a debt obligation (paragraph 1 and 2 of article 279 of the Tax Code of the Russian Federation).

If financial services are implemented

In case of subsequent resale, the rights of the debt requirement by the enterprise that bought it, the specified operation is considered as a realization of financial services. In this case, the value of the property due to the enterprise is recognized in the income (revenue) in this case.

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

The tax base in this case is defined as the difference between revenues in the form of revenues from the implementation of financial services and the amount of expenses related to the acquisition of an inferior requirement (paragraph 1 of Article 268 of the Tax Code of the Russian Federation). And if the income is obtained in the form of execution of the obligations of the debtor, then the tax base will be the difference between the costs for the purchase of debt and its amount.

Not all amounts are subject to VAT

There are or not there is a transaction for the assignment requirement, it depends on the basis of which agreement the right of claim arose. Tax on value added is subject to transactions in cases where the debt was sold as a result of the execution of the Treaty on the sale of products, works or services taxed by this tax (paragraph 1 of Article 155 of the Tax Code of the Russian Federation).

And on the contrary, VAT is not subject to the assignment of the right of the demand of the debt resulting from the sale of products, works and services exempted from the tax on the basis of the provisions of Article 149 of the Tax Code of the Russian Federation. For example, a degree for the sale of debt resulting from the non-fulfillment of a loan agreement.

And on the one who has the right to claim at the time of the concession depends on the procedure for calculating VAT. If the debt is selling the initial lender - the supplier of goods (works, services), the tax base will exceed the amount of income from the assignment of the right over the amount of money requirements.

Well, if the requirement is inferior to a new lender, who received a monetary requirement from the supplier of goods (works, services), then the tax base - exceeding the amount of income upon subsequent assignment of the requirement or to terminate the relevant obligation over the amount of the cost of acquiring the specified claim (paragraph 2 of Art. 155 of the Tax Code of the Russian Federation).

With the subsequent resale of debt, the tax base will also be the difference between the revenue from the sale or means obtained from the debtor, and the cost of buying this requirement (clause 4 of Article 155 of the Tax Code of the Russian Federation).

Need to pass an invoice

With a concession of the monetary requirement, the transmission side should present a new lender (buyer) to pay the appropriate amount of tax and set an invoice (clause 1, 3 of Article 168, sub. 1 of paragraph 3 of Art. 169 of the Tax Code of the Russian Federation). On his basis, the buyer will be able to make the VAT sum indicated in it (paragraph 1 of Art. 169 of the Tax Code of the Russian Federation). He must reflect the invoice in the accounting journal and invoice the invoice and register in the sales book.

In column 5 "The cost of goods (works, services), property rights without tax of the whole" invoice is reflected in the tax base. The column 7 indicates the VAT rate - 18 percent, and in column 8 - the calculated amount of VAT.

In case, with a remote money requirement, the difference between the price concession and the amount is negative or zero (that is, the tax base is zero), the calculated amount of VAT, indicated in the counting column 8, is also zero. The invoice is not compiled if the transmitted debt requirement arose when performing operations that are not taxable VAT.

Reference requirements reflected in accounting

In accounting, 76 "Calculations with different debtors and creditors" can be used to account for calculations with the cessionary. The cost of the concession, the requirement established by the CESSIA Treaty, is recognized as part at the date of the transition of the right to require a new lender for the debit of account 76 in correspondence with the account of account 91 "Other income and expenses" (clause 7, 10.1, 16 PBU 9/99). At the same time, a recording on the debit of account 91 and a credit of account 62, the amount of receivables (paragraph 1, 14.1, 16, 19 PBU 10/99) are written off into other expenses.

Note! When selling the initial creditor, the right of the requirement of a loss is included in non-tax costs in the amount of 50 percent at the appointment date of the right of claim and another 50 percent after 45 calendar days.

September 2013

This is a legal opportunity to translate debt with one organization to another. The presence of a certain amount of receivables is typical of almost all organizations. For the same companies for which the provision of loans, loans or calculations with counterparties on installments / postponement of payments, post-payment are characteristic feature Activities, the volume of such debt can reach very serious sizes.

The problems of recovery of receivables concern not only the banking and microfinance sector, but also all legal entities allowing its education and even consciously reaching for this for the purpose of receiving advantages and benefits for business. Many debts turn into problem and hopeless, which cannot be returned in principle or possibly, but only with serious costs for recovery, as a rule, economically unjustified.

When the company does not see sense to resort to the recovery procedure of receivablesBut at the same time wishes to minimize and (or) to compensate for at least part of its losses, it goes to the assignment of the right of the demand of the debt. For these purposes, it is usually a debt assignment agreement between legal entities (a cessia agreement), which is sometimes referred to as selling debt, which corresponds to the actual nature of the transaction. In some cases, other types of contracts and legal relations are used, but in them, although it is meant to assign the rights of debt between legal entitiesAdditionally, other tasks of resolving a problem situation with arrears on the most beneficial conditions are solved.

Assignment of debt applies not only by creditors, but also debtors. In this case, there is no special type of contract and it is assumed that the primary commitment will be reissued to another person, which will turn into a new debtor. In contrast to the actions of the lender, in most cases, it is not necessary to obtain the consent of the debtor on the assignment of the right of the demand of the debt, the debtor itself own initiative You cannot shift my obligations to another person without the consent of the lender.

Benefits of the assignment of debt for the parties obligations

All participants in legal relations about the assignment of the right of the demand of the debt decide their tasks, and usually transactions are beneficial to all parties, otherwise they would not be concluded.

• Former creditor It is possible to get rid of the problem debt associated with costs and costs, obtaining at least partial financial compensation if the cessia is compensated.
• New lenderwhich is often a company specializing in a massive scoop of debts and their recovery acquires a chance to get the entire amount of debt or part of it, but which will cover the cost of acquiring the right and will also give earnings over costs. For such legal entities, the conclusion of contract agreements and subsequent developmental work is just a business, and very profitable, as practice shows.

Sometimes buying debts is used for other purposes, for example, the establishment of control over the debtor company or receiving its asset to the property, including the entire business.

Features of CESSIA agreements: how to translate duty to another legal entity

IN russian legislation Issues of translation of debt (rights of debt claim) settled Civil Code of the Russian Federation. The concession agreement is possible on a wide range of monetary and non-monetary obligations in which the personality of the lender does not have a serious meaning for the debtor.

To conclude current and future creditors, the consent of the debtor in most cases is optional:

1. if we are talking about monetary obligation, even the presence of a direct prohibition on the cessia or the establishment of restrictions on such a transaction does not provide grounds to recognize invalid and terminate a primary agreement that has generated an obligation nor a cessia agreement;
2. the absence of the consent of the debtor is allowed under the assignment of a non-monetary obligation, except in cases of the existence of a ban on this or limitation established by the agreement, or creating conditions as a result of the cessia, in which the fulfillment of the obligation becomes more burdensome for the debtor;
3. the previous and new lenders have only one more or less serious obligation in front of the debtor - to notify him about the conclusion of the contract, however, the failure to fulfill this obligation does not entail special risks, except that the debtor, not knowing about the transaction, will pay off the debt to the old, and Not new lender.

The conclusion of cessia treaties does not have serious specifics compared to other transactions, with the exception of their conclusion in the same form as the contract that caused the obligation, as well as to comply with the procedure for the State Registration of transactions that are subject to such registration.

The transaction can wear both free and compensated character. The latter meets much more often. Requirement does not always imply monetary payment, other types of settlements are possible or the provision of another kind of counter execution of the terms of the contract, including Barter.

Given that the legislation is much at the conclusion of Cessia treaties, it takes at the discretion of the parties, such transactions in practice are acquired very individual. Perhaps the conclusion of 3-third contractswhere the debtor himself is among the lenders a member. This is often practiced when it is necessary to revise the conditions of the main obligation and to obtain the consent of the debtor. The debt redemption is also possible by the debtor themselves, no matter how strange it seemed. Such contracts help in resolving a debt problem, although lenders in this case are usually forced to go for serious concessions. Sometimes it is how to translate debt from one organization to another - the question arising from the specifics of the business and the need to redistribute debt obligations among controlled companies, companies that are part of the holding structure planned for purchase or under control. Options can be a lot.

In the legal relations system between the legal entities, the conclusion of assignment agreements is not only a purely formal transfer of the right to claim and compliance with the form and content of the Cessia Agreement. If we are not talking about a massive scary of debts, as about business, then all transactions are seriously prepared and are considered from the position financial risks, business security, benefits and advantages, features of the removal / setting of receivables for balance sheet accounting, taxation and other factors.

The Civil Code allows any company with receivables to convey the right to collect third parties. In terms of financial instability and non-payment of this right, an increasing number of companies enjoy this right. Accountant in such cases worry tax consequences Debt sales

Introductory information

If you approach the sale of receivables globally, we will find that three sides are involved in it - the debtor (that is, the company selling the debt), the lender (debt seller) and a new lender (or debt buyer). Obviously, the tax consequences of the cessiasis will be different for each of these three sides. In addition, in some cases, tax rules will depend on what debt is sold - under a loan agreement or arising from the Treaty for the sale of goods, works, services. By finding around the general moments, we turn to specifics and begin with the simplest - from the debtor.

Taxes in the debtor

For the debtor, it does not matter exactly which debt is in front of the lender (arising from sales or from a loan). In any case, the transfer by the creditor right the demand of this debt to another person does not oblige the debtor to restore VAT (if it has been presented). After all, the list of grounds for the tax restoration is closed and such a paragraph, as the conclusion of the Cessia agreement, there is no (paragraph 3 of Art. Of the Tax Code of the Russian Federation). Note that with the assignment of the right of claim under the loan agreement, the issue of VAT does not arise at all, because The VAT loan operation is not subject to, which means that the tax debtor is not presented and the deduction is not accepted (paragraph. 15 of paragraph 3 of Art. NK of the Russian Federation).

Similar picture and with income tax. Transferring a new creditor to the right to pay for the property acquired by the debtor, no consequences entail. Indeed, with the method of accrual, expenses are taken into account for tax purposes out of the real payment (Art. 253, Art. Of the Russian Federation). And the loan amount during its return is not taken into account in the expenditure (clause 12 of the Tax Code of the Russian Federation). And this rule does not depend on who is returned by the loan: the initial lender, or a new one who received such a right requirement under the CESSIA Treaty.

But if the debtor applies a cash transmission method for income tax or is located on USN, the purchased goods (work, services), the right to pay for which the new lender will be paid at the time of repayment of the debt (paragraph 3 of Art. NK RF, . 2, Art. 346.17 of the Tax Code of the Russian Federation).

Seller debt. VAT

Now let's see how the conclusion of the CESSIA agreement will affect the tax accounting of the company - the initial lender. If he is inferior to the right demand under the loan agreement, the situation is extremely simple. There, due to direct instructions in the Tax Code of the Russian Federation, the value added tax is not accrued (paragraph. 15, 26, paragraph 3 of Art. Of the Russian Federation).

If he sells a debt resulting from the delivery of goods (works, services), then the theory arises base of VAT. The fact is that the transfer of property rights is a separate object of VAT coverage (PP. 1 of paragraph 1 of Art. NK of the Russian Federation). And the right to demand demand is just the property right. In this case, the tax base must be determined according to the rules of paragraph 1 of the Article NC RF. It says that the taxable base is the excess of the income received by the first lender, over the amount of money requirements, the right to which are inflicted. Thus, in practice, the initial lender will have to pay tax only if he received an amount from the new lender exceeding the debt itself.

Seller debt. Income tax and weight

As we have already found out, the cessia agreement does not affect the fact of the implementation of goods, works or services. Therefore, with the method of accrualing the adjustment of the tax base for income tax, the cession also does not entail. After all, at the date of concession, the income from the sale of goods (works, services) has already been taken into account in the taxation of profits (paragraph. 1, 3 of Art. Of the Tax Code of the Russian Federation). Equally, as taken into account and expenses associated with such a sale (Art. Of the Tax Code of the Russian Federation, Art. Of the Russian Federation). No adjustment of the tax base for the initial transaction due to the concession is not made.

So, it remains to be dealt with only with income in the form of the amount obtained as a result of the assignment of the right demand. The problem here is that financial results Cessia is usually negative - the right demand in most cases is sold with a discount. And the legislator took into account this moment, establishing 2.1 of paragraph 1 of the Article LC of the Russian Federation in subparagraph 2, which the tax base of the cessia is determined by the rules established by the LC of the Russian Federation. And these rules are: the difference between the value of goods (works, services), the right to pay for which the amount received from the debt buyer is a loss. And the order of accounting is the loss depends on the debt sold.

If the debt is sold before the date of payment, then income from expenses is included with a loss that does not exceed the amount of interest on the debt obligation, calculated taking into account the requirements of the article of the Tax Code of the Russian Federation. The amount of interest can be calculated and differently - using the methods installed for interdependent people Section V.I of the Tax Code of the Russian Federation. In this case debt obligation It is accepted equal to the income from the assignment of the right of claim for the period from the date of the concession to the date of payment provided for by the Treaty on the sale of goods (works, services). The method selected by the initial lender for calculating interest must be consolidated in accounting policies (paragraph 1 of Art. NK RF).

Well, if the debt is sold after the date of payment, then the loss is taken into account entirely. This follows from paragraph 2 of the Article NC RF.

In taxpayers using the UPN (or cash transmission method), the situation will be slightly different. After all, in these cases, revenues from the sale of goods, works, services are recognized as a date of receipt. money or repayment of debt in another way (paragraph 2 of Art. of the Tax Code of the Russian Federation, paragraph 1 of Art. 346.17 of the Tax Code of the Russian Federation). This means that at the time of the concession by the seller the right to receive money for sold goods (works, services), the revenue in tax accounting is not yet recognized - because the money is not received. But at the conclusion of a cessia agreement, the buyer's debt is discontinued to the seller "in other ways". So, it is at this moment that it is necessary to reflect the revenue from the implementation of the relevant goods (works, services).

Please note that this income is in no way associated with the amount received from the debt buyer - the entire amount of debt falls into income, which is inferior to cessionary. At the same time, the proceeds from the sale of goods can be reduced to the cost of purchased goods, if the right of claim for their payment is inflamed (paragraphs 3 of paragraph 1 of Art. NK of the Russian Federation, paragraphs 23, paragraph 1 of Art. 346.16 of the Tax Code of the Russian Federation).

In addition, the seller of debt, as well as when the accrual method, an income arises in the form of the amount received from the new lender - this is a revenue from the sale of property rights (paragraph 2 of Art. Of the Tax Code of the Russian Federation, paragraph 1 of Art. 346.15 of the Tax Code of the Russian Federation, . 1 Art. Of the Tax Code of the Russian Federation, paragraph 1 of Art. 346.17 of the Tax Code of the Russian Federation). But at the same time, profit tax payers can reduce this amount in the amount of the ledmed debt (paragraphs 2.1 of paragraph 1 of Art. NK RF) and take into account the resulting loss. And at a time and completely, regardless of the "shelf life" of the debt, since the article of the Tax Code of the Russian Federation in this part is valid only with the method of accrual, which means that the cash registers are applied general rules Paragraph 2 of Article NK RF.

But the payers of the USN make it can not, since such a type of consumption is not provided for them. Accordingly, the payers of the USN cannot take into account the loss from the assignment of the right of claim. These provisions make a cessia agreement unfavorable for those who apply a simplified system.

Let's now consider the consequences of the assignment of the right of claim arising from the loan agreement. Everything is simple enough: the income tax should be paid from the difference between the amount received from the new lender, and the amount of debt of the borrower under the contract at the time of the concession (para. 3 of the sub. 2.1, paragraph 1 of Art. NK of the Russian Federation, paragraph 1, 2 tbsp. NK RF). Well, since this difference, as a rule, turns out to be negative, then the loss is taken into account in the same manner that in the case of the implementation of goods, works and services. This rule applies both with the calculation method and during cash registers, since in terms of debt arising from the loan agreement, the article by the Tax Code of the Russian Federation has no reservation on the relevant method.

When wept money received from the new lender, the debt seller includes the revenues from the sale of property rights (paragraph 1 of Art. 346.15 of the Tax Code of the Russian Federation, paragraph 1 of Art. Of the Tax Code of the Russian Federation). Even despite the fact that the transaction for receiving a loan is not taxed. At the same time, the amount of debt sold does not reduce what deprives the cessy of any economic meaning.