An example of a loan novation agreement. A novation agreement is... An agreement on novation (sample). Manual search panel for contracts

Replacement of an obligation (novation) is the second most popular method of terminating obligations after compensation in a situation where the borrower (supplier, buyer) does not have money (goods, the ability to perform work or provide services) to fulfill obligations under the original agreement. clause 1 art. 414 Civil Code of the Russian Federation. At the same time, the parties often have questions related to the calculation of VAT as part of the innovation. Today's material is devoted to the intricacies of calculating this tax during innovation.

When the loan became a delivery...

On the date of signing the novation agreement, the money received under the loan agreement for the former borrower is recognized as an advance payment. That is, from this amount the borrower-seller needs to calculate VAT at the estimated rate of 18/118 or 10/110 and issue an advance invoice to the former lender, and now the buyer subp. 2 p. 1 art. 167, paragraphs. 1, 3 tbsp. 168 Tax Code of the Russian Federation. When shipping goods (performing work, providing services) under a novation agreement, VAT is charged in the usual manner, and advance tax is deducted from subp. 1 clause 1, clause 14 art. 167, paragraph 8 of Art. 171, paragraph 6 of Art. 172 Tax Code of the Russian Federation.

Please note that when nominating an obligation to repay a loan into an obligation to supply goods, tax authorities may regard the loan as an advance already on the date of receipt of money, that is, consider that when recording the operation in accounting, you distorted its actual economic meaning. And then the amount of the former loan will be included in the VAT tax base for the period in which the money and clause 3 of the Resolution of the Plenum of the Supreme Arbitration Court of October 12, 2006 No. 53; Letter of the Ministry of Finance dated 09/07/2005 No. 03-04-11/221 (clause 2). This will entail the accrual of penalties, and possibly a fine for incomplete payment of VAT.

Please note that the former lender will be able to deduct VAT only after accepting the shipped goods for accounting and only on the basis of a shipping invoice (even if there is an advance invoice). After all, he will not have a payment slip for the transfer of the advance and an agreement providing for such a payment procedure clause 9 art. 172 Tax Code of the Russian Federation; Letter of the Ministry of Finance dated 03/06/2009 No. 03-07-15/39 (clause 2). This means that it is unsafe to claim VAT deduction from the advance payment.

Neither the lender nor the borrower, after signing the novation agreement, has VAT obligations associated with the loan agreement, since cash loan transactions are not subject to VAT subp. 15 clause 3 art. 149 Tax Code of the Russian Federation.

...or the delivery became a loan

The obligation under the supply agreement can be converted into a loan clause 1 art. 818 Civil Code of the Russian Federation. Novation terminates the supplier's obligation to supply goods. Instead, he has an obligation under a loan agreement for the amount of the prepayment received (in this case, in addition to the novation agreement, a loan agreement is also concluded or all loan terms are specified in the novation agreement and clause 2 art. 818, articles 807, 808 of the Civil Code of the Russian Federation). As already mentioned, cash loan transactions are not subject to VAT subp. 15 clause 3 art. 149 Tax Code of the Russian Federation. That is, on the date of signing the novation agreement, there is no transaction subject to VAT. The question is: what should the supplier do with the amount of VAT calculated when receiving an advance from the buyer? De facto, this money should be considered overpaid to the budget. But in order to “legitimize” an overpayment in the amount of advance VAT, you need to submit an update for the period when the advance was received for the subsequently new obligation, now excluding these amounts from the tax base. There is no reason for this, since you acted correctly by paying VAT on the amount received, which at that time was an advance payment.

The supplier in such a situation also cannot accept advance VAT for deduction, since, according to the Ministry of Finance, the amount of the advance payment is not returned to the buyer, as required by law. clause 5 art. 171 Tax Code of the Russian Federation;. There is a court decision that supports this approach. Resolution of the Federal Antimonopoly Service of North Kazakhstan Region dated November 25, 2013 No. A32-4896/2012. The arbitrators decided that upon termination of the contract, the return of the advance in cash is a prerequisite for deducting the VAT accrued on it. The court also took into account that the novation agreement was concluded only six months after the termination of the contract, and the company’s counterparty to the original obligation was included in the register of its creditors.

In another case, the judges noted that the seller can claim a deduction of VAT paid to the budget on the prepayment received, the debt to repay which has been converted into a loan obligation only after repaying the loan. Resolution of the Federal Antimonopoly Service of the Northern Territory of February 24, 2011 No. A42-880/2009. In our opinion, this conclusion does not contradict the position of the Ministry of Finance: in its explanations, the department clearly indicated only the impossibility of deducting VAT from the advance payment when concluding a novation agreement, since the advance payment at this moment is not returned to the buyer.

Reader's opinion

“The buyer asked to terminate the contract. And we already received an advance payment from him in June. We can terminate the contract retroactively, but we can’t return the money. If they had novated the supply on loan in the same quarter in which they received the advance, it would be possible not to include this money in the VAT base. In any case, you will have to pay VAT on the advance payment. We are considering the issue of novation of an obligation into a loan and are in doubt at what point to accept advance VAT for deduction: now or when we return the entire loan amount to the counterparty? The amount is not small, and I don’t want to get fined.”

Galina,
chief accountant, Moscow

At the same time, most courts consider it legal to deduct VAT in a situation where the obligation to repay the advance has been converted into a loan. Since, in connection with the novation of a debt into a loan obligation, a transaction subject to VAT no longer takes place, there are no grounds for paying tax. In this case, the seller can claim a deduction in the period when the agreement on novation and Resolution of the Federal Antimonopoly Service of the North Caucasus Region dated 04/05/2013 No. A32-2964/2012; FAS NWO dated 02.12.2013 No. A56-4264/2012; FAS MO dated October 18, 2012 No. A40-12957/12-91-66.

Most recently, the judges of the Supreme Arbitration Court expressed the opinion that the seller cannot be deprived of the right to deduct advance VAT if the return of the received advance payment is not made in cash. clause 23 of the Resolution of the Plenum of the Supreme Arbitration Court of May 30, 2014 No. 33. These conclusions can be applied to our situation. After all, if a novation agreement is concluded, the seller simply has no obligation to return the advance directly. The Tax Code stipulates only the condition for obtaining a deduction in a situation where such an obligation exists.

But the fact that the buyer, who has accepted for deduction of VAT on prepayment for a delivery novated into a loan, must restore the tax, cannot be disputed. Letter of the Ministry of Finance dated April 1, 2014 No. 03-07-RZ/14444.

Issuing a loan is an operation not subject to VAT. This means that, theoretically, there is a need to maintain separate records of transactions subject to and not subject to VAT. clause 4 art. 149, paragraph 4 of Art. 170 Tax Code of the Russian Federation. But since the cost of issuing a loan is practically zero and probably will not exceed 5% of your total expenses, you most likely won’t have to keep separate records. It is enough to draw up an accounting certificate, from which it will be clear that the expenses fall within this limit. And do not forget to reflect the loan amount in section 7 of the VAT return with transaction code 1010292 Appendix No. 1 to the Filling Out Procedure, approved. By Order of the Ministry of Finance dated October 15, 2009 No. 104n.

Sometimes the loan is converted into an obligation to pay for the goods supplied, that is, in this case the buyer acts as the borrower. There are no special features here: the supplier has already charged VAT on the cost of goods, and the buyer can deduct the tax on a general basis.

How can a seller (performer) nominate an obligation to supply goods (works, services) into a loan obligation in accounting? What nuances should be kept in mind when calculating income tax if the novation agreement provides for the accrual of interest on the loan amount (the amount of the prepayment received)? Does the termination of the obligation to return the advance by novation give the right to deduct “advance” VAT? Having considered a specific situation, we will try to answer the questions posed.

Situation

The contractor, in accordance with the work contract, received (03/10/2015) from the customer an advance payment in the amount of 590,000 rubles. Since the work was not completed, the parties (guided by the norms of civil legislation) Art. 407 And 414 Civil Code of the Russian Federation) signed on 05/06/2015 an agreement on the novation of obligations under a work contract into a loan obligation.

The agreement provides for the accrual of interest (10% per annum). Interest is paid by the contractor simultaneously with the repayment of the principal amount - June 30.

For income tax purposes, the contractor uses the accrual method. The contractor and the customer are not interdependent persons.

About accounting

The amount of prepayment, as you know, is not recognized as income of the organization; it is reflected in accounts payable, and separately.

This debt (the contractor’s obligation to perform the work) is repaid on the date of signing the novation agreement and a new obligation arises associated with the return to the customer (he now acts as a lender) of the loan amount - cash in the amount of the prepayment received, as well as interest accrued on this amount . (By the way, this agreement is made in the form provided for concluding a loan agreement.)

Interest accrued in accordance with the novation agreement is accounted for separately from the principal amount of the loan. They are included in other expenses on a monthly basis.

Repayment of the principal amount of the loan and interest accrued on it is not recognized as an expense.

Taking into account the above, the contractor will make the following entries in accounting:

Contents of operations	Debit	Credit	Amount, rub.
Advance payment received from the customer	51	62-av	590 000
“Advance” VAT charged	76-VAT-av.	68-VAT	90 000
Reflects the conversion of an obligation under a work contract into a loan obligation	62-Av.	66-bas.	590 000
“Advance” VAT accepted for deduction	68-VAT	76-VAT-av.	90 000
Interest accrued for May is reflected (RUB 590,000 x 10% / 365 days x 25 days)	91-2	66-pr.	4 041
Interest accrued for June reflected (RUB 590,000 x 10% / 365 days x 30 days)	91-2	66-pr.	4 849
The amount of the principal debt and interest accrued on the amount of the principal debt have been repaid (590,000 + 4,041 + 4,849) rub.	66-bas.	51	598 890

About taxes

In the situation under consideration, two taxes are “involved” - VAT and corporate income tax. Let's start with the last one.

For tax purposes, the received prepayment (as in accounting) is not recognized as income ( pp. 1 clause 1 art. 251 Tax Code of the Russian Federation). However, this statement is also true for the loan amount received ( pp. 10 p. 1 art. 251 Tax Code of the Russian Federation) - an obligation that arose on the date of conclusion of the novation agreement.

Interest accrued on the amount of the loan obligation is taken into account by the organization as part of non-operating expenses, and (since the transaction is not controlled on the basis of Art. 105.14 Tax Code of the Russian Federation) based on the actual rate ( para. 2 p. 1 art. 269 Tax Code of the Russian Federation). That is, the taxpayer can recognize as expenses the entire amount of interest accrued in accordance with the terms of the loan agreement, without standardization.

As for VAT, let's talk about it in more detail.

As you know, at the moment of receiving an advance payment on account of the upcoming delivery (in our case, work), a taxable base arises - the taxpayer-performer charges “advance” VAT ( para. 2 p. 1 art. 154, pp. 2 p. 1 art. 167 Tax Code of the Russian Federation). (In the above entries there is a second entry made on 03/10/2015.)

Within five calendar days, the contractor is obliged to present the customer with an invoice with the amount of tax calculated (at the estimated rate) from the advance payment ( para. 2 p. 1, clause 3 art. 168, clause 5.1, 6 Art. 169,clause 4 art. 164 Tax Code of the Russian Federation). By the way, the contractor will register this document in the sales book ( clause 3 And 17 Rules for maintaining a sales book ).

For your information

Based on the results of the quarter, “advance” VAT must be reflected in the tax return. Line 070 of section is intended for this. 3 (column 3 shows the amount of the advance received, and column 5 shows the amount of calculated VAT).

In May, the obligation to return advance payment to the customer for work was converted into a loan obligation. From this point on, the funds are not advance, and since the loan transaction in cash, including interest on it, is not subject to VAT ( pp. 15 clause 3 art. 149 Tax Code of the Russian Federation), the tax base for the purpose of calculating VAT does not arise here.

It turns out that VAT, accrued (in March) upon receipt of an advance payment towards the completion of work and reflected (based on the results of the first quarter) in the VAT return, falls into the category overpaid tax . And if so, it must be returned (credited) in the manner prescribed Art. 78 Tax Code of the Russian Federation .

But here’s the “problem” - the procedure for recalculating the tax base and the VAT amount, as well as submitting an updated tax return for the period of the error (distortion), determined clause 1 art. 54, clause 1 art. 81 Tax Code of the Russian Federation, does not apply in this case. Indeed, during the tax period when the taxpayer received an advance payment, all conditions for calculating VAT were met and there were no errors (distortions) in the tax base at that time.

The norm that best suits the situation clause 5 art. 171 Tax Code of the Russian Federation(we remind you that according to it, VAT calculated and paid from the amounts of payment (partial payment) received on account of future deliveries is subject to deduction after shipment or when conditions change or termination of the contract and the corresponding advance amounts are returned). But it (the norm), if you follow the position of the Ministry of Finance, is not applicable here ( Letter dated 04/01/2014 No.03-07-RZ/14444).

Note: this formulation does not give reason to think about the absence of the right to deduct “advance” VAT in principle (similar opinions of some experts exist). Rather, the above letter states about the moment the emergence of this right. The financiers give key importance to their conclusion actual refund of advance payments : since upon concluding a novation agreement, the amount of advance payment by the seller is not returned, the norm of clause 5 of Art. 171 of the Tax Code of the Russian Federation does not apply.

And (continuing the logic of officials) clause 5 art. 171 Tax Code of the Russian Federation applies (the right to deduction is acquired by the taxpayer) at the moment when the seller gives the loan (its amount is equal to the prepayment of the goods before the conclusion of the novation agreement) to the buyer (now the lender).

Regarding the example under consideration: the taxpayer submitted a deduction for “advance” VAT (fourth accounting entry dated 05/06/2015) at the time of signing the novation agreement. Or maybe this action is premature and the VAT deduction cannot be declared before June 30, 2015, the date of return of the advance payment?

Judges' findings

Until recently, judicial practice was formed in two directions.

One of them was clearly combined with the approach of the Ministry of Finance. As an example, let's give Resolution dated August 20, 2014 in case No. A64/3941/2012, in which the Arbitration Court of the Central District stated: the established special procedure for applying the deduction of “advance” VAT provides for a mandatory condition - the return of advance payment amounts. Consequently, the right to deduct VAT calculated and paid on the prepayment received, the debt for the return of which by novation is replaced by a loan obligation, arises with the taxpayer after loan repayment. This resolution was assessed by the judge of the Supreme Court as not containing significant violations of substantive law, and therefore the case was refused to be transferred to the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation ( Determination of the RF Armed Forces dated November 25, 2014 No.310-KG14-4303) .

The second (more favorable for taxpayers) direction indicated that a deduction can be claimed during the period of concluding the novation agreement . Since this conclusion was (not so long ago) voiced by the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation, we can consider that the end has been reached in resolving such disputes, however... subject to some nuances. To understand which ones, let's focus on Resolution of the Supreme Court of the Russian Federation dated March 19, 2015 in case No.310-KG14-5185, A48-3437/2013.

So here's the crux of the matter.

The organization, within the framework of the purchase and sale agreement for goods, received an advance on account of future delivery and paid “advance” VAT (as confirmed by relevant payment orders and statements from the payer’s current account) to the budget. And about a year later the parties entered into an agreement on innovation parts of obligations under the original agreement in borrowed funds at certain interest rates.

The taxpayer submitted a VAT update for the period when did the innovation take place , and declared the amount of tax (by the way, very impressive), which relates to the new obligation, compensation from the budget. However, it was refused; the tax authority considered that the novation agreement was formal (for the purpose of tax refund) nature, and the refund of “advance” VAT was not confirmed.

Please note: the inspection used the fact of continued delivery under the sales contract as the main evidence of the formality of the novation agreement.

The company, understandably, was not satisfied with the decision of the tax authorities, and it went to court, arguing its position as follows.

From the moment the novation agreement is signed, the amount of previously received funds is recognized as a loan and the seller has an obligation as a borrower. That is, the funds received by the company from the buyer cannot be considered as income from the sale of goods.

As evidence of compliance with the conditions for deducting VAT, the company presented an agreement on innovation to the contract for the sale of goods, invoices, payment orders, primary documents confirming the payment of interest for the use of borrowed funds, and account statements.

Judgment	Judges' findings
First instance ( Decision of the Oryol region AS dated December 11, 2013 No.A48-3437/2013)	*The taxpayer's demands have been satisfied. The inspectorate's decision to refuse a tax refund was declared illegal.* The court indicated: the debt arising from supply contracts was replaced by the parties with a loan obligation, since only this method of replacement is provided Art. 818 “Novation of debt into a loan obligation” of the Civil Code of the Russian Federation, and the procedure for returning funds received is provided only by the rules Art. 807 “Loan Agreement” of the Civil Code of the Russian Federation. Other types of civil contracts do not provide for the procedure for returning previously received funds. The fact that the parties replaced only part of the obligations does not matter, since civil law does not prohibit such actions. Moreover, clause 1 art. 407 Civil Code of the Russian Federation the possibility of both full and partial termination of the obligation is expressly provided for
Court of Appeal ( Resolution of the Nineteenth Arbitration Court of Appeal dated April 21, 2014 in case No.A48-3437/2013)	*The findings of the trial courts were upheld.* Clarified: presenting VAT for deduction does not violate the interests of the budget, since according to Art. 78 Tax Code of the Russian Federation the overpaid amount is subject to refund to the taxpayer in accordance with the procedure established by law
Cassation instance ( Resolution of the AC CO dated August 28, 2014on case no.A48-3437/2013	*Findings of lower courts overturned* , their interpretation of the provisions Ch. 21 Tax Code of the Russian Federation found to be incorrect because Art. 78 Tax Code of the Russian Federation does not apply to the legal relations under consideration. It is also concluded that the established special procedure for applying the deduction of “advance” VAT in the event of a change in conditions or termination of the relevant agreement provides for a mandatory condition - the return of advance payment amounts. Consequently, the right to deduct VAT calculated and paid to the budget from the prepayment received, the debt for the return of which by novation is replaced by a loan obligation, arises from the taxpayer *after loan repayment*
Fourth instance ( Ruling of the Supreme Court of the Russian Federation dated 02/03/2015 in case No. 310-KG14-5185)	The case was transferred to the Judicial Collegium for Economic Disputes, since the company’s arguments that the right to deduct VAT paid to the budget from the received advance payment, which was subsequently converted into a loan, will arise for the taxpayer only after the return of the borrowed funds, which contradicts Art. 146, 149 And 171 Tax Code of the Russian Federation
Determination of the Supreme Court of the Russian Federation dated March 19, 2015 No. 310-KG14-5185	*Three judges of the RF Supreme Court supported the organization. The decisions of the first and appellate instances were left unchanged. The cassation ruling was overturned.* It follows from the Tax Code of the Russian Federation that mandatory repayment of advances is necessary as a condition for tax deduction only in the event of termination of the contract or change in its terms. However, novation is not a termination or modification of a contract. This is a replacement for commitment. From the provisions Art. 414 Civil Code of the Russian Federation 14 it follows that the novation agreement aims to terminate the existing obligation between the parties and establish something different. Termination of an obligation means that the original legal connection between the parties to the transaction, expressed in a specific obligation, is lost and a new obligation arises. In this case, the loan became another obligation. Since he is in force Art. 149 Tax Code of the Russian Federation is a non-taxable transaction (that is, when receiving a loan, the taxpayer does not have an obligation to calculate VAT), the amount of VAT previously calculated for payment to the budget on advance payments received is *overpaid tax from the moment of concluding the novation agreement* . Thus, the conclusion of the cassation court that the taxpayer has the right to deduct VAT paid to the budget from the prepayment received only after the return of borrowed funds contradicts Art. 146, 149 And 171 Tax Code of the Russian Federation. The Judicial Panel found indirect confirmation of its position in Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 30, 2014 No. 33 : here, in paragraph 23 it is said that to apply the deduction according to para. 2 clause 5 art. 171 Tax Code of the Russian Federation when changing or terminating the contract, it is possible, even if the return of payments is made in non-monetary form15

Instead of a conclusion

So, in the example we are considering (as in other similar situations), the contractor (supplier, performer) has the right to claim a deduction of VAT, calculated and paid to the budget from the amounts of advance payment received on account of the upcoming deliveries of products under the supply contract, at the time of signing the agreement on novation of contractual obligations into borrowed obligations.

At the same time, the taxpayer will register in the purchase book an invoice that was previously registered by the organization in the sales book upon receipt of an advance payment ( P.22 Rules for maintaining a purchase book ).

For your information

In this case, you need to claim for deduction the overpaid tax by reflecting the corresponding amount in column 3 of line 120 of section. 3 VAT returns.

Such actions (declaring a deduction at the time of signing the novation agreement) do not contradict the conclusions made by the Judicial Collegium for Economic Disputes of the RF Armed Forces. By the way, let us draw attention to them once again: they are very beneficial to taxpayers who, for various reasons, cannot return the prepayment in full and immediately. However, the risk of recognition of the novation agreement as fictitious, that is, made solely for the purpose of obtaining tax benefits, still exists (the judges, we recall, when rendering a verdict, took into account the reality of the parties’ fulfillment of the novation agreement, including the actual return of funds according to the repayment schedule debt and payment of interest to the counterparty for the use of borrowed funds). You can avoid such accusations by establishing in advance (and, of course, observing) a payment schedule for returning funds to the buyer (customer).

Paragraph 4, clause 3, clause 12 PBU 9/99 “Income of the organization,” approved. By Order of the Ministry of Finance of Russia dated May 6, 1999 No. 32n.

Instructions for using the Chart of Accounts.

Clause 1 of Art. 807, paragraph 1, art. 809, paragraph 1, art. 810 of the Civil Code of the Russian Federation.

Clauses 1 and 2 of Art. 818 of the Civil Code of the Russian Federation.

Clause 4 PBU 15/2008 “Accounting for expenses on loans and credits”, approved. By Order of the Ministry of Finance of Russia dated October 6, 2008 No. 107n.

Paragraph 2, clause 3, clauses 6-8 PBU 15/2008, clause 11 PBU 10/99 “Expenses of the organization,” approved. By Order of the Ministry of Finance of Russia dated May 6, 1999 No. 33n.

Clause 3 of PBU 10/99.

Appendix 5 to the Decree of the Government of the Russian Federation of December 26, 2011 No. 1137.

VAT declaration form and procedure for filling out the declaration approved. By Order of the Federal Tax Service of Russia dated October 29, 2014 No. ММВ-7-3/558@.

Clause 38.13 Procedure for filling out a tax return.

The amount of overpaid tax is subject to offset against the taxpayer's upcoming payments for this or other taxes, repayment of arrears for other taxes, arrears of penalties and fines for tax offenses, or refund to the taxpayer in the manner prescribed by Art. 78 of the Tax Code of the Russian Federation (clause 1 of the said norm). An application for offset or refund of the amount of overpaid tax can be submitted within three years from the date of payment of the specified amount, unless otherwise provided by the legislation of the Russian Federation on taxes and fees (clause 7 of Article 78).

Similar conclusions are presented in the decisions of the Federal Antimonopoly Service of the North-West District dated 02.24.2011 in case No. 42-880/2009, the FAS North-West Region dated 11.25.2013 in the case No. A32-4896/2012, etc.

See, for example, the decisions of the Federal Antimonopoly Service of the North-Western District dated 02.12.2013 in case No. A56-4264/2012, the Federal Antimonopoly Service of the Moscow Region dated 10.18.2012 in the case No. A40-12957/12-91-66, the Federal Antimonopoly Service of the North-West District of 04.05.2013 in the case No. A03 -10374/2012, etc.

Appendix 4 to the Decree of the Government of the Russian Federation No. 1137.

Paragraph 3 clause 38.8 Procedure for filling out a tax return.

Moscow "__" ____200__ LLC "__________________", represented by the General Director ________________, acting on the basis of the Charter, hereinafter referred to as the "Borrower", and __ __ "____" represented by ________, acting on the basis of Power of Attorney No. ____ dated ______200__.

hereinafter referred to as the “Lender”, together referred to as the “Parties”, have entered into this agreement as follows: 1.1. In accordance with Article 818 of the Civil Code of the Russian Federation, the Parties agreed to replace (novate) with a loan obligation the Borrower’s obligations to pay debts to the Lender arising from the following agreements concluded between the Borrower and the Lender: Amount of debt in rubles.

An interest-bearing loan agreement was concluded between two interdependent organizations

1 clause 1 art. 161 Civil Code of the Russian Federation). The new loan amount (and interest on it) is recognized as an advance payment (clause

1 tbsp. 414 of the Civil Code of the Russian Federation). If the activities of an organization are subject to VAT, then at the time of concluding a novation agreement, VAT must be charged on the amount of the loan noved into an advance (clause 1 of Article 167 of the Tax Code of the Russian Federation). Within five days after this, the buyer must issue an invoice (clause 3 of Article 168 of the Tax Code of the Russian Federation). 1.

Hocus Pocus: Loan repayment turned into goods delivery

In this case, the former lender becomes the buyer, and the former borrower becomes the seller. If your lender company plans to terminate the borrower’s obligation by novation only to return the “body” of the loan, then this condition must be specified in the novation agreement.

Otherwise, after concluding the agreement, all obligations of the borrower will cease, including repayment of interest under the loan agreement. Note. The cost of the transferred goods does not have to be specified in the agreement.

The parties came to an agreement to replace the Debtor’s obligation to the Creditor arising from the Agreement __________ N _____ dated “___” __________ _____ (hereinafter -) and referred to in clause.

1.2 of the Agreement, for another obligation between them, named in clause 1.3 of the Agreement (novation). 1.2. Information about the initial obligation of the Debtor to the Creditor: - essence and size: _________________________ (data is indicated in accordance with the terms of the Agreement, for example (if the initial obligation arose from a supply agreement): “The Debtor undertakes to pay for the goods purchased from the Creditor in the amount of _____ rubles.

Registration of debt novation between the parties into a loan obligation

Moreover, such an obligation, in turn, must be fulfilled by him under certain conditions.

Free legal advice:

Understanding all these circumstances is extremely important in the event of a change in the agreements reached, for example, when the novation of a debt is formalized into a loan obligation. Both individuals and legal entities can act as parties to a loan agreement.

The procedure for nominating a debt into a loan obligation

Such replacement can only occur when all the conditions of Article 414 are met. The form of the final decision of such a contract is drawn up in accordance with Article 808.

Comments to Article 818 Loan obligations are issued for various reasons.

Innovation agreement No. ___

SUBJECT OF THE AGREEMENT 1.1. The parties agree to terminate the obligations of Party 2 arising from the loan agreement No. __ dated __________ (hereinafter referred to as the loan agreement), concluded between Party 1 (Lender) and Party 2 (Borrower), regarding payment of the loan amount and interest for the use of the loan (initial obligation) in the amount of the loan _________ (_________________) and interest in the amount of ____________ (_____________). The total debt is _____________ (____________________).

Law Club Conference

The basis of the claim may have to be changed. but here is an opinion: CIVIL LAW PART ONE V.P. Mozolin A.I. Maslyaev Innovation involves a change in the subject or method of execution. The subject of execution is understood as a material or other benefit towards which the actions of the parties are directed.

Free legal advice:

A change in the subject of performance is considered to be the replacement of the original subject of performance with an item of a different kind, as well as a change in its quantitative characteristics, assortment, etc.

Novation of a loan into supply or vice versa: dealing with VAT

Replacing an obligation (novation) is the second most popular method of terminating obligations after compensation in a situation where the borrower (supplier, buyer) does not have money (goods, the ability to perform work or provide services) to fulfill obligations under the original agreement and clause 1 of Art. 414 of the Civil Code of the Russian Federation. At the same time, the parties often have questions related to the calculation of VAT as part of the innovation. Today's material is devoted to the intricacies of calculating this tax during innovation.

When the loan became a delivery.

On the date of signing the novation agreement, the money received under the loan agreement for the former borrower is recognized as an advance payment. That is, from this amount, the borrower-seller needs to calculate VAT at the calculated rate of 18/118 or 10/110 and issue an advance invoice to the former lender, and now the buyer, no. 2 p. 1 art. 167, paragraphs. 1, 3 tbsp. 168 Tax Code of the Russian Federation. When shipping goods (performing work, providing services) under a novation agreement, VAT is accrued in the usual manner, and advance tax is deducted from sub. 1 clause 1, clause 14 art. 167, paragraph 8 of Art. 171, paragraph 6 of Art. 172 of the Tax Code of the Russian Federation.

Please note that when nominating an obligation to repay a loan into an obligation to supply goods, tax authorities may regard the loan as an advance already on the date of receipt of money, that is, consider that when recording the operation in accounting, you distorted its actual economic meaning. And then the amount of the former loan will be included in the VAT tax base for the period in which the money was received and paragraph 3 of the Resolution of the Plenum of the Supreme Arbitration Court of October 12, 2006 No. 53; Letter of the Ministry of Finance dated 09/07/2005 No./221 (clause 2). This will entail the accrual of penalties, and possibly a fine for incomplete payment of VAT.

Free legal advice:

Please note that the former lender will be able to deduct VAT only after accepting the shipped goods for accounting and only on the basis of a shipping invoice (even if there is an advance invoice). After all, he will not have a payment slip for the transfer of the advance and an agreement providing for such a payment procedure in clause 9 of Art. 172 Tax Code of the Russian Federation; Letter of the Ministry of Finance dated 03/06/2009 No./39 (clause 2). This means that it is unsafe to claim VAT deduction from the advance payment.

Neither the lender nor the borrower, after signing the novation agreement, has VAT obligations associated with the loan agreement, since cash loan transactions are not subject to VAT. 15 clause 3 art. 149 of the Tax Code of the Russian Federation.

. or the supply has become a loan

The obligation under the supply agreement can be converted into a loan obligation, clause 1 of Art. 818 of the Civil Code of the Russian Federation. Novation terminates the supplier's obligation to supply goods. Instead, he has an obligation under a loan agreement for the amount of the prepayment received (in this case, in addition to the novation agreement, a loan agreement is also concluded or all the terms of the loan are prescribed in the novation agreement and clause 2 of Article 818, Articles 807, 808 of the Civil Code RF). As already mentioned, loan transactions in cash are not subject to VAT, sub. 15 clause 3 art. 149 of the Tax Code of the Russian Federation. That is, on the date of signing the novation agreement, there is no transaction subject to VAT. The question is: what should the supplier do with the amount of VAT calculated when receiving an advance from the buyer? De facto, this money should be considered overpaid to the budget. But in order to “legitimize” an overpayment in the amount of advance VAT, you need to submit an update for the period when the advance was received for the subsequently new obligation, now excluding these amounts from the tax base. There is no reason for this, since you acted correctly by paying VAT on the amount received, which at that time was an advance payment.

Has the loan become an advance? Be prepared for an argument. Tax authorities may say that you were simply delaying the calculation of advance VAT

In such a situation, the supplier also cannot accept advance VAT as a deduction, since, according to the Ministry of Finance, the amount of the advance payment is not returned to the buyer, as required by the law in paragraph 5 of Art. 171 Tax Code of the Russian Federation; Letter of the Ministry of Finance dated 04/01/2014 No. РЗ/14444. There is a court decision supporting this approach. Resolution of the Federal Antimonopoly Service of the North Caucasus Region dated November 25, 2013 No. A/2012. The arbitrators decided that upon termination of the contract, the return of the advance in cash is a prerequisite for deducting the VAT accrued on it. The court also took into account that the novation agreement was concluded only six months after the termination of the contract, and the company’s counterparty to the original obligation was included in the register of its creditors.

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In another case, the judges noted that the seller can claim a deduction of VAT paid to the budget from the prepayment received, the debt to repay which has been converted into a loan obligation, only after repaying the loan. In our opinion, this conclusion does not contradict the position of the Ministry of Finance: in its explanations, the department clearly indicated only the impossibility of deducting VAT from the advance payment when concluding a novation agreement, since the advance payment at this moment is not returned to the buyer.

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chief accountant, Moscow

At the same time, most courts consider it legal to deduct VAT in a situation where the obligation to repay the advance has been converted into a loan. Since, in connection with the novation of a debt into a loan obligation, a transaction subject to VAT no longer takes place, there are no grounds for paying tax. In this case, the seller can claim a deduction in the period when the agreement on novation is concluded and Resolution of the Federal Antimonopoly Service of the North Caucasus of 04/05/2013 No. A/2012; FAS Northwestern Territory No. A/2012 dated 02.12.2013; FAS MO dated October 18, 2012 No. A/.

Most recently, the judges of the Supreme Arbitration Court expressed the opinion that the seller cannot be deprived of the right to deduct advance VAT if the return of the received advance payment is not made in cash, paragraph 23 of the Resolution of the Plenum of the Supreme Arbitration Court of May 30, 2014 No. 33. These conclusions can be applied to our situation. After all, if a novation agreement is concluded, the seller simply has no obligation to return the advance directly. The Tax Code stipulates only the condition for obtaining a deduction in a situation where such an obligation exists.

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But the fact that the buyer, who has accepted for deduction of VAT on prepayment for a supply novated into a loan, must restore the tax, cannot be disputed. Letter of the Ministry of Finance dated April 1, 2014 No. RZ/14444.

Issuing a loan is an operation not subject to VAT. This means that, theoretically, there is a need to maintain separate records of transactions subject to and not subject to VAT, clause 4 of Art. 149, paragraph 4 of Art. 170 Tax Code of the Russian Federation. But since the cost of issuing a loan is practically zero and probably will not exceed 5% of your total expenses, you most likely won’t have to keep separate records. It is enough to draw up an accounting certificate, from which it will be clear that the expenses fall within this limit. And do not forget to reflect the loan amount in section 7 of the VAT return with the transaction code, Appendix No. 1 to the Filling Out Procedure, approved. By Order of the Ministry of Finance dated October 15, 2009 No. 104n.

Agreement on novation of debt into a loan obligation

on the novation of debt under a supply agreement into a loan obligation

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1. Subject of the agreement

1.1. The parties, guided by Articles 414, 818 of the Civil Code of the Russian Federation, came to an agreement to replace the debt of the Debtor to the Lender arising from Supply Agreement No. …………… dated …………………. and named in clause 1.2. of this Agreement, to another obligation between them, named in clause 1.4 of the Agreement (novation).

1.2. Information about the initial obligation of the Debtor to the Lender:

- ….. December 20__ between the Lender and the Debtor, Agreement No. ………….. was concluded for the supply of construction materials (hereinafter referred to as the Agreement), in accordance with which the Supplier undertook to supply, and the Buyer agreed to accept and pay for construction materials (hereinafter referred to as products, goods) in the quantity, assortment indicated in the delivery note and invoices;

Based on this Agreement, with…. December 20... to June 201_ The Lender delivered goods for a total amount of (six million eight hundred eight thousand five hundred thirty eight) rubles 17 kopecks;

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Due to incomplete payment for goods delivered under the Agreement, a debt arose in the amount of (three million six hundred two thousand twenty three) rubles and 15 kopecks;

- ………………. 201... by the decision of the Arbitration Court of the Chuvash Republic in case No. A, the debt for the products supplied to the defendant in the amount of (three million six hundred two thousand twenty three) rubles and 15 kopecks was recovered from the Debtor in favor of the Lender, as well as (forty one thousand ten) rubles. 12 kopecks expenses for paying state duty. Total (three million six hundred forty-three thousand thirty-three) rubles 27 kopecks. Based on this decision ………………………… 201…, the Arbitration Court of the Chuvash Republic issued a writ of execution series AC No. …………………

1.3. The parties acknowledge that the remaining amount of debt under the Agreement to the Lender at the time of signing the Agreement is (three million one hundred eighteen thousand eight hundred forty-three) rubles 92 kopecks.

1.4. Information about the new obligation of the Debtor to the Lender:

1.4.1. The debt of the Debtor for the supply of products under the Agreement in the amount of (three million one hundred eighteen thousand eight hundred forty-three) rubles 92 kopecks is replaced by a loan obligation.

1.4.2. The loan amount in the amount of (three million one hundred eighteen thousand eight hundred forty-three) rubles 92 kopecks is provided for a period of up to …… ………….201….. g.

Monthly, starting from……201…. no later than the 10th day of the current month, the Debtor is obliged to deposit funds into the Lender’s bank account or to the Lender’s cash desk in accordance with the Loan Repayment Schedule (Appendix No. 3), with the last payment due no later than ………………….. 201 …. G.

Without additional written approval from the Lender, the loan may be repaid ahead of schedule.

1.4.3. The Borrower's fulfillment of obligations under this Agreement is ensured by the guarantee of at least two persons.

The name of the guarantors, requirements, form of the guarantee agreement is contained in Appendix No. 1, 2 to this Agreement.

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1.4.4. For using the loan amount, the Borrower pays the Lender interest at the rate of 12.5 percent per annum.

1.4.6. Interest on the use of the loan amount is paid

no later than the 10th day of each month, starting from the month of loan payment (clause 1.4.2 of the Agreement). Interest accrued for the last period of use of the Loan Amount is paid simultaneously with the repayment of the loan amount.

1.4.7. The lender has the right to terminate this agreement unilaterally in case of violation of the loan repayment period in accordance with the loan repayment schedule (Appendix No. 3).

1.4.8. The borrower undertakes to pay the principal loan amount, interest in the manner, terms and conditions stipulated by this agreement.

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1.4.7. For late repayment of the loan amount, the Lender has the right to demand from the Borrower payment of a penalty in the amount of 0.3 percent of the unpaid amount for each day of delay.

1.4.8. For violation of the terms for payment of interest (clause 1.4.4 of the Agreement), the Lender has the right to demand from the Borrower payment of a penalty in the amount of 0.3 percent of the amount not paid on time for each day of delay.

1.4.9. Collection of penalties and interest does not relieve the Party that has violated the terms of the Agreements from fulfilling its obligations in kind.

1.4.11. The debtor has the right to repay the loan by returning the products delivered under the Agreement. In this case, a new monthly loan repayment schedule is drawn up between the parties.

1.4.11. In all other cases of failure to fulfill the loan obligation hereunder, the Parties shall be liable in accordance with the current legislation of the Russian Federation.

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2. Dispute resolution

2.1. The parties will strive to resolve all possible disputes and disagreements that may arise under the Agreement or in connection with it through negotiations.

2.2. If the parties do not reach an agreement on the disputes and disagreements that have arisen, they are subject to consideration by the Arbitration Court of the Chuvash Republic in the manner prescribed by the current legislation of the Russian Federation or in the Moskovskaya District Court of Cheboksary, if the debt is also collected from the Guarantors of individuals.

3. Change and early termination of the contract

3.2. All changes and additions to the Agreement are valid if made in writing and signed by both Parties. The corresponding additional agreements of the Parties are an integral part of the Agreement.

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3.3. The Agreement may be terminated early by agreement of the Parties or at the request of one of the Parties in the manner and on the grounds provided for by the current legislation of the Russian Federation.

3.4. The Agreement is drawn up in two copies, one for each of the Parties.

3.5. The following are attached to the Agreement:

Name of the guarantors, requirements, form of the guarantee agreement (Appendix No. 1, 2).

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Novation agreement from a loan agreement

During the execution of a loan agreement, one party (the lender) transfers money to the other (the borrower), and the other party is obliged to return the specified amount to it within the agreed time frame. The agreement is considered concluded when the lender transfers money to the borrower.

Therefore, the borrower, having received the money, is obliged to return the money to the lender. But the situation does not always arise that the borrower can repay the entire loan amount.

In this case, if he is able to provide an alternative replacement for money (goods, services, bills, etc.), then a novation agreement is concluded.

What it is

Novation, in accordance with Article 414 of the Civil Code of the Russian Federation, is an agreement between two parties to replace the original obligation existing between them with a new one.

There are two main directions of innovation:

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novation of a bill of exchange into a loan agreement - when the borrower had an obligation to provide the bill of exchange to the lender, but was unable to, then by mutual agreement they change it to an obligation to repay the loan.
novation of a loan into a bill of exchange occurs when the borrower takes a cash loan from the lender, the obligation for which, as a result of novation, is replaced by another - the provision of a bill of exchange.

Instead of a bill of exchange, services or goods may be indicated.

In the case of a loan, the obligation of the borrower to return the specified amount to the lender is replaced by a new obligation, which is stipulated in the novation agreement.

That is, the previous obligation is terminated, and a new one is created in return. If part of the loan has already been repaid, an agreement is drawn up for the remaining amount.

For example, with a loan of 500 thousand rubles, 300 thousand were repaid, and the remaining 200 thousand were converted into the supply of goods by the borrower for this amount.

Novation must be distinguished from the usual change of conditions in the original obligation, or the introduction of additions to it:

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loan repayment terms;
the amount of interest on the loan;
procedure for making payments, etc.

Novation of debt under a loan agreement

The original obligation between the borrower and the lender is replaced by a novation if the parties have expressed consent aimed at replacing this obligation with a new obligation with different conditions.

In this case, an agreement to the loan agreement is concluded. A novation issued for this purpose makes it possible to transfer the debt under a loan agreement into debt under a purchase and sale agreement (Article 414 of the Civil Code of the Russian Federation), provision of services, or into a bill of exchange.

At the moment of concluding the novation agreement, the original obligation between the lender and the borrower is considered terminated.

To do this, when concluding an agreement, it is indicated that the original obligation is terminated and a new agreement comes into force. If you do not do this, interest may continue to accrue on the loan.

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A single form of agreement on innovation has not been approved, therefore it can be concluded in any form according to the general rules of Chapter. 9 and 28 of the Civil Code or in the form of an initial agreement. At the same time, the agreement must specify all the conditions for the new obligation.

If a sales contract is concluded, the most important part will be the name of the product and its quantity. It is imperative to note in the novation agreement that it replaces the loan agreement, otherwise these agreements will be considered as separate transactions for which additional tax will have to be paid.

Novation of debt under a loan agreement must fulfill the following conditions:

During the conclusion of a novation, the parties to the contract do not change. Changing one of the parties during the conclusion of such an agreement is contrary to the current legislation of the Russian Federation;
both parties must agree to a change in obligations, which is fixed in the agreement or can be seen from its semantic content;
the original obligation must indicate that it can be replaced with a new one;
the new obligation must have a different subject or method of execution that differs from the original one;

For example, the replacement of a loan with a purchase and sale agreement, a bill of exchange, the provision of a service, etc. is officially recognized as a innovation.

the original and new obligations must have a causal connection. If the new agreement does not indicate which of the original obligations are replaced or terminated, and also does not specify the method of termination, the terms of Art. 414 of the Civil Code of the Russian Federation are violated;
the original obligation at the time of concluding the novation must be valid; its invalidity will lead to the invalidity of the novation agreement.

When deciding to enter into a novation agreement, you must carefully weigh all the consequences of this step.

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Read what articles of the Civil Code of the Russian Federation cover an interest-free loan agreement here.

The most important thing is the termination of obligations under the previous agreement, therefore all new disagreements are resolved based on the terms of the new agreement.

If you do not specify all possible conditions in the novation agreement, there is a risk of getting into unpleasant and conflict situations between the parties.

Since additional obligations to it are terminated with the original agreement, for example, to pay a penalty, provide a guarantee, issue a deposit, retain property, etc., they all need to be transferred to the novation agreement.

According to Art. 414 of the Civil Code, novation cannot be allowed in case of compensation for harm to a person’s health or life, as well as in case of alimony arrears. These obligations must always be fulfilled.

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If for some reason the innovation is invalid, then the first obligation comes into force.

In most cases, debt novation is carried out in the form of an agreement, less often - a contract. In business activities, various documents are used to conclude an agreement, which differ in their name and purpose. Along with contracts, agreements are concluded that have a simpler form.

Although from a legal point of view, a contract and an agreement are synonymous, since a contract is an agreement between two or more parties (Article 420 of the Civil Code of the Russian Federation).

The Civil Code provides that in cases where a large number of rules are used that are designed to regulate the relations of the parties, agreements (purchase and sale, transportation, contract, etc.) must be concluded.

In the absence of detailed regulation of individual relationships between the parties in the code, they enter into agreements. In relation to innovation, both options can be used.

But when concluding an agreement, it is necessary to additionally draw up a transfer and acceptance certificate (of goods, bills, etc.)

Decor

When repaying a loan in goods, services, a bill of exchange, etc., an agreement on novation of the loan is concluded. It indicates that the parties have reached an agreement in this matter, and also determines the value of the products that are supplied against the loan.

This includes determining the fate of penalties and interest on the loan and the costs of packaging, loading and delivery of goods. Once the novation agreement is signed, the lender becomes the buyer and the borrower becomes the seller.

The lender's accountant performs the following actions:

keeps records of products that have been received and are equal in value to the loan;
enters this amount into the “expenses” section;
indicates interest on the loan in the section “non-operating income”;
transfers money that was issued as a loan into advance payments under supply contracts;
records the delivered products, receives a shipping invoice and keeps records of incoming VAT.

With simplified taxation of the lender, the entire cost of goods goes into the “expenses” section, and the obligation becomes fully repaid.

But if only the main body of the loan is returned in goods, it will be necessary to reflect the interest received on it in a separate item.

The borrower, in turn, must perform the following actions:

take into account the income received from the sale of goods;
in the “expenses” column, indicate the purchase price of goods with which the loan is repaid, or the costs of their production;
interest that must be paid to the lender is included in non-operating expenses;
issue an invoice with VAT for advance payment within 5 days from the date of signing the contract;
Having shipped the goods, issue a shipping invoice;
charge VAT on the goods and record it in the journal.

Regulatory regulation

The basic rules governing the novation of debt are enshrined in Article 414 of the Civil Code of the Russian Federation, as well as in some provisions on certain types of obligations.

Article 414 regulates the termination of an obligation between two parties by novation, namely the replacement of the original obligation with a new one, providing for a different subject or method of repaying the debt.

Article 818 of the Civil Code of the Russian Federation provides more specific information from Article 414, and also allows the novation of a debt into a loan obligation. Replacing a loan with another product or service is carried out in compliance with the requirements of Art. 414 in the form provided for this type of document.

Concluding a novation agreement from a loan agreement is a legal and simple way to pay off a monetary debt as a result of drawing up a purchase and sale agreement, the provision of services or the transfer of bills.

This makes it possible for the borrower to repay the debt to the lender, provided that both parties agree to such a transaction. Because financial difficulties can occur in any company, and in order to avoid legal proceedings and forced collection of debt, innovation is the optimal solution to such a problem.

When concluding a novation agreement, it is necessary to adhere to certain rules provided by law, and also carefully write down all the provisions from the original agreement, since after the conclusion of the novation it loses its force.

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Novation agreement from a loan agreement

Replacing a loan with a novation

The economic crisis has a negative impact on many areas of life for both ordinary citizens and enterprises. First of all, the volume of debt is noticeably increasing: many do not have enough funds to repay loans, and the number of arrears and litigation is growing. However, it is quite possible not to bring the situation to the courts, avoid penalties, and not spoil your reputation and credit history, if you agree with the lender that you will fulfill the requirements, but in a different way. Naturally, negotiations must result in written form - in a novation agreement, according to which the obligations initially concluded between the parties end and new ones begin to apply.

At the same time, it is necessary to understand that a change in the term of the relationship, interest rate, currency, payment methods, collateral or guarantor is a restructuring, and not a novel transaction, because the return of the transferred funds is considered not fulfilled.

The new agreement interrupts the limitation period for borrowed obligations.

It is also necessary to distinguish between innovation agreements and compensation agreements:

When the compensation is concluded and transferred, the debt relationship between the lender and the borrower ends;
With innovation, only a transformation of obligations occurs, but the possibility of non-fulfillment does not arise.

Form

The novation agreement must be concluded in the same form as provided for by civil law for processing loans.

Innovation options

The most common replacement of property claims with monetary ones is the following:

loan novation agreement into a purchase and sale agreement;
loan novation agreements on a promissory note (a sample is presented on the website);
contractual relations between loan participants, etc.

After signing the novation, the borrower’s debt is considered repaid, and he is now assigned other obligations. In this case, it is worth indicating for what amount the lender’s right of claim disappears.

Reverse deal

It should also be noted that a reverse change in existing agreements is possible: transfer of debt (for payment for goods, services, work, etc.) into a loan obligation. In practice, it is quite common to nominate a supply agreement into a contract when the need to pay for the goods, i.e. The buyer's debt is replaced by a loan. For the latter, this situation is beneficial: after all, he gets the opportunity not only to demand repayment of the debt, but also to pay interest and fines.

When converting obligations into borrowed ones, it is necessary either to stipulate all the conditions of borrowing in the novation agreement, or to conclude two agreements: novation and loan.

In the section you can draw up and download a sample loan novation agreement according to the requirements of the parties; the cost of a multivariate template is 500 rubles.

Novation agreement from a loan agreement

Distribution agreement. Supply of technical products

in Russian and Italian

Agreement on full individual financial responsibility

Agreement on full collective financial responsibility

Agreement on the provision of services by a specialist (translator)

Agreement for the provision of computer setup services

Contract for the supply of planting material

Contract for the supply of goods (import to the Russian Federation)

Warehousing agreement

Agreement for free use of a car

Interest-free ruble loan agreement between individuals

Commission agreement (option 1)

Car purchase and sale agreement between legal entities

Contract for the provision of services (performance of work)

on photography and image processing

Agreement for the provision of comprehensive accounting services

Agreement on the alienation of the exclusive right to trademarks

Contract for the supply of consumer goods

Preliminary purchase and sale agreement for real estate

Simple partnership agreement (joint activity agreement)

Forms of documents submitted to the registration authority

during state registration of legal entities,

individual entrepreneurs and peasant (farm) farms

Approved by order of the Federal Tax Service dated January 25, 2012 No. ММВ-7-6/25@

Form P11001 Application for state registration of a legal entity

Form P12001 Application for state registration of a legal entity,

created by reorganization

Form P12003 Notification of the start of the reorganization procedure

Form P13001 Application for state registration of changes,

included in the constituent documents

Form P13002 Notification of changes

in the constituent documents of a legal entity

Form P14001 Application for amendments to information about a legal entity,

Form P14002 Application for entering information into the Unified State Register of Legal Entities

about the presence of a business company in the process of reducing its authorized capital

Form P15001 Notice of liquidation of a legal entity

Form P16001 Application for state registration of a legal entity

in connection with its liquidation

Form P16002 Application for making an entry in the Unified State Register of Legal Entities

on the termination of a unitary enterprise or institution

Form P16003 Application for making an entry

on termination of activities of the affiliated legal entity

Form P17001 Reporting information about a legal entity,

Form P21001 Application for state registration of an individual

as an individual entrepreneur

Form P21002 Application for state registration

peasant farm

Form P24001 Application for amendments to information

about an individual entrepreneur contained in the Unified State Register of Individual Entrepreneurs

Form P24002 Application for amendments

in information about peasant farming

Form P26001 Application for state registration of termination

an individual operating as an individual entrepreneur

Form P26002 Application for state registration of termination of peasant farming

Form P27002 Application for entering information into the Unified State Register of Individual Entrepreneurs

Order of the Federal Tax Service dated January 25, 2012 No. ММВ-7-6/25@

Request form for obtaining annual financial statements

legal entities operating on the territory of the Russian Federation

Contacts

Article 414 of the Civil Code of the Russian Federation.

Termination of an obligation by novation

1. An obligation is terminated by an agreement of the parties to replace the original obligation that existed between them with another obligation between the same persons, providing for a different subject or method of fulfillment (novation).

2. Novation is not allowed in relation to obligations to compensate for harm caused to life or health, and to pay alimony.

3. Novation terminates additional obligations associated with the original one, unless otherwise provided by agreement of the parties.

on the replacement of a debt arising from a civil contract

for a loan obligation

city ________ _

date of conclusion _.__.____ year

Hereinafter referred to as “Lender”, represented by ______ (job title)

_________ (full name), acting on the basis of ______,

on the one hand, and ________, hereinafter referred to as the “Debtor”, represented by ______ (name

position) ________ (full name), acting on the basis

On the other hand, collectively referred to as the “Parties”, have concluded

this agreement about the following:

1. THE SUBJECT OF THE AGREEMENT

1.1. In accordance with Article 414, 818 of the Civil Code of the Russian Federation, the Creditor and the Debtor agreed on

termination by novation of obligations arising from the supply agreement

No.____ dated __.__.____, providing for the supply of goods. Creditor

made payment to the Debtor's account as an advance payment for the following amounts:

1.2. The debtor did not fulfill the obligation to supply goods to the specified

1.3. Total debt as of __.__.____ under supply agreement No.____

from __.__.____ is __________ rubles.

1.4. Obligation of the Debtor to pay the Creditor the amount of money specified

in clause 1.3. of this agreement, the Parties replace with a loan obligation

between the same persons on the following terms:

1.4.1. The debtor undertakes to return the amount of money specified in clause 1.3. present

agreement, within __.__.____

1.4.2. For the amount specified in clause 1.3. of this agreement, interest is charged for

use of borrowed funds at the rate of ___% per annum.

Accrual is made monthly. Interest is paid

after payment of the principal amount. The loan amount can be repaid

1.4.3. When repaying the principal amount of the loan, the Debtor must indicate in

payment documents purpose of payment: “Repayment of borrowed funds

under the novation agreement dated __.__.____ NDS is not appearing." Upon repayment

interest accrued for the use of borrowed funds

The debtor must indicate the purpose of payment in payment documents:

“Repayment of interest for the use of borrowed funds for

novation agreement dated __.__.____ NDS is not appearing."

1.5. Obligations of the Parties arising from the supply agreement No.__ dated __.__.____

as of __.__.____, terminate at the moment of signing by the Parties

1.6. This agreement terminates additional obligations related to

with supply agreement No.____ dated __.__.____, providing for the supply

2.1. The parties undertake to maintain the confidentiality of the contents of this

agreement, as well as any information and data provided by each

Parties in connection with the execution of this agreement, with the exception of

2.2. Confidentiality means a prohibition on disclosing information

to unauthorized persons without prior written agreement

2.3. It is not a violation of confidentiality to provide

confidential information as required by law

law enforcement and other authorized government bodies, and

also in other cases provided for by law.

3. RESPONSIBILITY OF THE PARTIES

3.1. In case of untimely repayment of the loan amount and payment of interest for

use of the loan amount, the Debtor pays 0.05% to the Lender

from the loan amount for each day of delay.

4. DISPUTE RESOLUTION. JURISDICTION

4.1. In the event of any dispute arising between the Supplier and the Buyer

or disputes related to this agreement or the performance or

failure of any Party to fulfill obligations under the agreement, the Parties

will make every effort to resolve them amicably through negotiations.

If disputes cannot be resolved through negotiations, the issues in dispute

submitted to the Arbitration Court ______________ in the order

established by the current legislation of the Russian Federation.

5. TIMELINES AND INFORMATION EXCHANGE

5.1. Unless otherwise specified, the terms specified in this agreement

are calculated in calendar days.

5.2. If the date of fulfillment of any obligation under this agreement

falls on a non-working day, its due date is postponed to

the nearest business day following the date of fulfillment of the obligation.

5.3. Unless otherwise specified in the agreement, exchange of information (materials)

between the Parties under this agreement is concluded exclusively in

5.4. Written communications from the Parties are sent by mail, fax, email

mail, courier, issued to the Party (authorized representative) on

hands or delivered by other means that allow fixation

the fact (date, time) of its transmission and the sender.

5.5. To determine the authenticity of a message written on paper

medium, visual enough, without the use of special knowledge and

technical means, comparison of sample signatures of responsible persons

Sides and seal impressions on the document with samples available in

5.6. Exchange of messages via email is considered completed only

after receiving appropriate confirmation from the Party,

5.7. The parties undertake to promptly (no later than 5 (five) days) notify

each other about changes in postal, banking, electronic and other

details. In case of untimely notification sent by

documents, funds and information to the previous details

are considered sent to the proper address and details.

5.8. This agreement is drawn up in 2 (two) copies of equal

legal force, one for each of the Parties.

ADDRESSES AND BANK DETAILS OF THE PARTIES

Taxpayer Identification Number __________ Checkpoint __________

Cor. Account No. __________

Taxpayer Identification Number __________ Checkpoint __________

Cor. Account No. __________

4 Responses to

Is it possible to sign an agreement on the novation of a loan agreement into a supply agreement?

Sochi2012: in this case, it is more convenient to conclude a supply agreement and terminate the obligations arising from the loan agreement by offsetting counter-similar claims in accordance with Article 410 of the Civil Code of the Russian Federation

Civil Code of the Russian Federation

Article 410. Termination of an obligation by offset

The obligation is terminated in whole or in part by offsetting a counterclaim of the same type, the due date of which has come or the due date of which has not been specified or is determined by the moment of demand. For offset, a statement from one party is sufficient.

Article 411. Cases of inadmissibility of offset

The following claims are not allowed:

if, at the request of the other party, the claim is subject to a limitation period and this period has expired;

for compensation for harm caused to life or health;

on the collection of alimony;

about lifelong maintenance;

in other cases provided for by law or agreement.

Article 412. Set-off upon assignment of a claim

In case of assignment of a claim, the debtor has the right to set off against the claim of the new creditor his counterclaim against the original creditor.

Set-off is carried out if the claim arose on the basis that existed at the time the debtor received notice of the assignment of the claim, and the term of the claim came before its receipt, or this period is not specified or is determined by the moment of demand.

On this issue, you can also familiarize yourself with the Information Letter of the PRESIDIUM OF THE HIGH ARBITRATION COURT OF THE RUSSIAN FEDERATION dated December 29, 2001 No. 65

OVERVIEW OF THE PRACTICE OF RESOLVING DISPUTES RELATED TO THE TERMINATION OF OBLIGATIONS BY SETTING OFF COUNTER CLAIMS OF THE SAME CLAIMS

Is innovation possible if the supplier must return the prepayment received, but does not have such an opportunity?

In accordance with Article 414 of the Civil Code of the Russian Federation, an obligation is terminated by an agreement of the parties to replace the original obligation that existed between them with another obligation between the same persons, providing for a different subject or method of execution (novation). Novation is not allowed in relation to obligations to compensate for harm caused to life or health, and to pay alimony.

Thus, in the case you indicated, novation is possible in the absence of a dispute between the parties regarding the return of the prepayment received. To terminate an obligation by novation, the parties must agree on the essential terms of the obligation by which the parties provided for the termination of the original obligation.

It should be noted that, unless otherwise provided by agreement of the parties, from the moment of concluding the novation agreement, the obligation to pay for the period preceding the conclusion of the said agreement the penalty accrued in connection with the delay in fulfillment of the initial obligation by the debtor ceases.

To simplify, innovation is the replacement of one debt with another.

In the Civil Code of the Russian Federation, Article 414 is devoted to the concept of innovation.

We will look into all the nuances and features of this procedure below.

What is debt novation

This financial instrument differs from other actions with debts in several important parameters:

When a novation agreement is concluded, the subject of the debt or the method of its execution is replaced by another subject and method. If this condition is not met, the novation agreement will be invalid. For example, a company sells goods for a notional amount to its partner with a deferment. The payment deadline approaches and the partner understands that he cannot fulfill his obligations, while he has the opportunity to provide the company with services for upgrading the site for this amount. Accordingly, if the proposal is accepted by the company, an agreement is drawn up, which will be a novation.
This procedure requires the voluntary consent of both parties to the transaction. Unlike other instruments, for example, assignment, it is impossible to force a party to change the terms of the agreement, much less terminate it, therefore an agreement is concluded only during negotiations.
When novation occurs, the old obligation ceases, but at the same time the emergence of a new one is declared. That is, if, instead of paying the debt, the company transfers an apartment to the creditor for the same amount, the novation agreement will be inappropriate; this case will fit the concept of compensation, since with the transfer of the apartment the old obligation ends, but no new one arises.
The parties to the contract remain unchanged. In contrast to the same assignment, where the debt is transferred to a third party, the emergence of new participants in the transaction or the withdrawal of any party from the membership of participants when nominating the debt is unacceptable.
If the parties agreed to retain any additional requirements that accompanied the original obligation, they must be specified in the novation agreement. If there is no such designation, then such responsibilities are leveled along with the main ones.

Thus, it becomes clear that novation is a voluntary agreement of the parties to replace an object or method of fulfilling a debt with another object or method of fulfilling the duty of one participant in the relationship to another.

Procedure and design features

Replacement of obligations is formalized in writing in two cases: if the debt is more than 1000 rubles and if the Creditor is a legal entity.

In addition, it is important to know that there are several cases where a novation agreement is not possible.

Thus, it is prohibited to replace one’s obligations with others if the obligations are related to the person’s personality, namely:

compensation for harm caused to life;
compensation for damage caused to health;
payment of alimony.

Procedure for drawing up an agreement

If it is decided that it is not possible to fulfill the obligations, you must follow the instructions:

you need to contact the Creditor with a proposal for debt novation;
negotiations are held during which various options for repaying the debt are discussed;
a profitable and feasible solution is found for both parties;
a draft agreement is being prepared;
the agreement is signed and sealed by the parties;
The accounting department of each party prepares the necessary documents.

It is important to know: the novation agreement is drawn up in the form of a loan agreement.

In a standard agreement, in addition to the date and place of conclusion of the agreement, personal data of the parties, rights, obligations and deadlines, information about the original debt and the obligation replacing it must be indicated. The agreement is drawn up in two copies, one for each of the parties, the copies are of equal legal force.

Specialist's note: as a rule, debt novation is beneficial to both parties, because the method of solving problems in court does not always lead to the desired result, thus, during the procedure, the creditor receives his money in one form or another, and the debtor receives the opportunity to pay off his debts in a way convenient for himself .

For the creditor, by the way, there is another advantage in the innovation - the limitation period is counted anew with the beginning of a new agreement.

Watch the video in which a lawyer explains how to correctly draw up a loan agreement:

Entrepreneurs use other people's assets to maintain production balance and stabilize activities. Due to insufficient funds and high competition, counterparties often find themselves in a debt trap and are unable to fulfill previously concluded agreements. An alternative option for resolving a dispute between counterparties is a revision of obligations or their complete replacement with others. In this situation, you should find out what an agreement for the novation of a debt into a loan obligation is, what its sample looks like, when it is drawn up and applied.

The meaning of the event

Debt may be generated by a company for a paid advance for the upcoming supply of goods, provision of services, or performance of work. A receivable is formed by the supplier at the time of shipment of materials in favor of the counterparty, transfer of property for rent and other relationships. It is not always possible for the debtor to fulfill the terms of the contract in full and within the established time frame.

In practice, there are often cases when the defaulter is unable to complete the work, pay for materials, etc. It is in such a situation that the optimal solution is to replace one type of obligation with another. Debt novation is a procedure that provides for the preservation of mutual settlements between counterparties, but in a different form. The debt itself continues to exist in value terms, but the terms of the transaction change.

The original agreement can be valid between individuals and legal entities, so the new contract is concluded between them. That is, there are no new participants in the innovation relationship. The essence of updating the contract is to replace the subject of the agreement.

For example, under a supply agreement, the supplier was unable to ship materials to the buyer for a certain amount due to the absence of the object of the transaction. Since the consumer is interested in returning the previously listed advance, he compromises and accepts the counterparty’s offer to convert the subject of the transaction into borrowing.

The borrower does not actually receive money on loan from the lender. The previous agreement had a cost dimension, which is translated into a lending agreement on new terms. It is likely that the debtor will have to pay interest on the loan amount in order to interest the customer in the feasibility and profitability of the transaction.

Novation of debt implies the preservation of debt relations, only in a slightly different form

Classification

Businesses and citizens need to understand what an outstanding debt novation agreement is used for and what it is. Novation is the process of approving a new subject of agreement, drawn up on paper. Innovation is a procedure for implementing an agreement reached by the parties. In economic and legal practice, a standard grouping of agreements for updating transactions is provided: offset, novation, compensation.

All types are characterized by paperwork certified by the signatures of the participants. Changes can be made at the discretion of the counterparties at any time during the validity of the main obligation. The main feature of such transactions is the use of payment methods that were not initially considered by the parties at all. It is important that offset and compensation completely or partially cover the existence of the debt, and novation transfers it to another form.

The innovation procedure can be used for two main directions:

The existing arrears on bills of exchange, purchase of inventory items, and provision of services are replaced by a loan agreement.
The reverse form, when a loan obligation turns into a supply contract, contract, lease, etc.

The main feature of innovation is a radical change in the terms of the contract. Moreover, the creditor actually does not incur any losses, and the debtor finds a method of pre-trial settlement of the dispute. If an addition is made, the agreement on installments or deferment is applied, but in fact the agreement does not change. When one counterparty assigns a debt to another person, we are not talking about novation, but about assignment.

In the accounting of both parties to the novation, the previous obligation is recognized as extinguished and subject to liquidation. The financial service specialist must complete the appropriate postings. New debt is accounted for in accordance with the term of the loan as a short-term or long-term liability.

According to Art. 167, 171 of the Tax Code of the Russian Federation in the tax accounting of the supplier, the repayment amount is recognized as revenue and participates in the formation of the base for calculating income tax. The buyer does not have the right to submit a VAT deduction claim to the budget, since no actual payment for goods or services has been made. If the lender is an individual and dividends are expected to be paid, the borrowing company is the tax agent. Therefore, each time you transfer the loan body and interest, it is necessary to withhold personal income tax and transfer it to the budget.

Any agreement must be certified by the signatures of both parties

Regulatory resource

Any mutual settlements between individuals and organizations must be regulated by the norms of current legislation. Innovation transactions are no exception. Chapter 26 of the Civil Code of the Russian Federation regulates the procedure for terminating the existence of obligations, including changing the form of payments.

According to Art. 407 of the code, the parties, on a mutual initiative, decide on full or partial repayment of the debt, determine the potential consequences and risks. Article 414 confirms the right of a creditor and a debtor to formalize an agreement to completely replace one type of debt with another, if the original contract and the code of state laws do not contain direct prohibitions on such actions.

A loan obligation is formed between individuals subject to ten times the amount of arrears compared to the minimum wage. This threshold does not apply to legal entities. According to Art. 815 of the Civil Code of the Russian Federation, the borrower can issue a bill of exchange and transfer it in payment of the loan debt.

Art. 818 of the Civil Code allows innovations under sales and lease contracts. It is impossible to replace alimony debts and arrears that have a direct connection with the identity of the counterparties. For example, damage from an accident, injuries from physical impact, moral and material harm.

Transaction regulations

The defaulter cannot, on his own initiative, unilaterally decide to borrow money from the creditor under the guise of changing the terms of the current agreement. Both parties schedule a meeting, discuss details, assess consequences and risks. You can entrust the preparation of the form to a qualified lawyer or download it via the Internet. There will be no significant difference in the samples, since borrowing does not imply special conditions or nuances.

The structure of the template is drawn up taking into account the requirements of civil law and aspects of the initial agreement. The form of the obligation must necessarily change; the participants in the relationship remain the same. To eliminate possible disputes and disagreements in the future, it is necessary to provide direct links to the base contract.

The contract must be concluded in accordance with existing legislation

The innovation can be applied at any stage of settlements between counterparties. It is not prohibited to reach a settlement agreement during the trial and decide to terminate the debt by novation into a loan.

For example, let’s imagine that the Master company did not pay the Tools company for the supply of components. The creditor files a lawsuit. The debtor, having assessed the potential costs, the risk of loss of property, bankruptcy, invites the creditor to compromise and replace the monetary obligation with a loan at interest. The addressee of the appeal will satisfy the request, since in addition to the principal debt he will receive additional profit.

Filling out the form

We list the main details and conditions, the reflection of which is an important point in the novation transaction:

The name of the document, place and date of its preparation.
Full name of the creditor, debtor for individuals, name for organizations.
Power of attorney for an authorized person.
Description of the subject of the agreement indicating the details of the obligation to be closed.
Amount of debt.
The transfer of one form of debt to another is approved, with details of the procedure for its repayment.
The loan is issued at interest or free of charge.
The parties confirm full fulfillment of the previous contract.
It is recommended to describe confidential information and responsibility for its disclosure.
The rules for resolving disputes are described.
Details of the participants in the transaction and signatures of authorized persons.

When concluding a contract, it is important to follow all the rules for document execution.

To facilitate the process, you can use a sample agreement on novation of debt for the supply of goods as a loan obligation.

Conclusion

An agreement on the novation of monetary obligations into borrowed ones is the most profitable option for resolving a controversial situation between counterparties. The creditor and debtor, by mutual agreement, select the terms of the new transaction and determine the procedure for transferring loan payments.

For the borrower, the transaction may be unprofitable, but it will eliminate litigation with associated risks and losses. The claimant receives additional guarantees: the statute of limitations is recalculated, dividends are accrued on borrowed funds, and the defendant fully recognizes the amount of the debt.

The video will talk about solving problems with counterparties:

Attention! Due to recent changes in legislation, the legal information in this article may be out of date!