The interaction of a business entity with its partners leads to payment of obligations to suppliers. The normal functioning of the company assumes that periodically generated accounts payable are repaid on the days specified in the agreement, or ahead of schedule at the request of the debtor. However, if there is a lack of funds, it may freeze and become overdue. Then the current rules allow you to write off accounts payable with an expired statute of limitations.

The requirements established by law for the implementation of accounting and reporting determine that its information must correspond to the actual facts of the company's activities. This is the principle of consistency and reliability in accounting.

In a situation where there are overdue debts to creditors on the balance sheet, this rule is violated. After all, the company is obliged to take into account debts to other persons until they are repaid.

However, she may not repay debts to others if the terms expire, no matter what reasons she may have for this. This right is established at the legislative level. Therefore, the company should not reflect such accounts payable in accounting after all the deadlines have passed. This point is recorded in the Accounting Regulations.

Attention! In practice, there are times when a debt is written off before its collection period is completed, for example, if the payee closes down and is deregistered as a legal entity.

Many accountants ask how to do this correctly, since such a write-off leads to the appearance of other income for the company and entails the accrual of appropriate taxes.

When can this be done?

Civil law establishes that a debt that the creditor does not require repayment is considered overdue after the expiration of a specified period of time.

This time is called the statute of limitations. It is believed that during this period the creditor may try to return the existing amounts of debt voluntarily or through the courts. The Civil Code of the Russian Federation establishes this period as 3 years.

It is very important to understand from what exact time you need to start counting the period after which you need to write off accounts payable.

When agreements are signed, they define the obligations of the parties, as well as the time within which they must be fulfilled. Overdue debt is considered overdue on the day following the day the debt is repaid. This is where you need to start calculating the statute of limitations.

If the agreement does not contain information about the period for fulfilling the obligation, then the limitation period must begin to be counted from the day the creditor presents the debtor with a notice of repayment of the debt.

In this document, for each fact of overdue debt, you must indicate:

• The counterparty for which the debt was incurred;
• When and why did it arise;
• Amount of debt;
• The date when the limitation period for it expired;
• Recommended action (write off).

The inventory report and accounting certificate, after submitting them to the manager, are the basis for issuing an order.

Step 4. Submitting an order to write off debt

Attention! The order is the basis in documentary form for the write-off.

Step 5. Making transactions

For each write-off fact, the accountant makes the following entries:

The procedure for writing off overdue accounts payable in tax accounting

Step 1. Determining the period for debt write-off

It is very important for an organization to correctly determine the day of debt removal, since during the period containing it, it will fall into the company’s income, and, as a result, there will be an obligation to transfer income tax on this amount.

A firm may use the cash method, in which the date of the transaction is established by the date of the cash flow. However, when accounts payable arise, such a movement does not actually arise, since the company simply owes it to the other party. In this regard, the date of write-off will be the day of the inventory of the company's debt.

It is more difficult with the accrual method, in which income and expenses are taken into account on the actual date, regardless of the day of receipt or expenditure of funds. In this case, the question may arise - on what day should the debt be actually applied to income. This is most relevant if the statute of limitations expired in one billing period, and the inventory was carried out in another.

Attention! Government agencies and courts agree that in this case the debt must be accepted as income in the period in which the statute of limitations expired. Moreover, this step must be carried out regardless of whether an inventory was carried out at all, a report was drawn up, etc.

Step 2. Write-off in accounting

The Tax Code establishes that, in order to determine income tax, expired accounts payable must be included in non-operating income when written off. However, there is an exception - the written-off debt for transferring taxes to the budget of all levels is not included in the tax base.

Main mistakes when writing off debt

When registering debt write-off, the responsible person may make various mistakes:

• The need for write-off is not documented. The responsible person must take an inventory of all debts, and then draw up a report indicating valid and overdue obligations. The need to write off individual debts is documented in an accounting certificate.
• Incorrect determination of the debt period. It must be remembered that the debt period is counted again from the date of the last reconciliation (signing of the relevant act), partial payment or other written actions between the parties (for example, an additional agreement was signed).
• VAT accounting. If previously input VAT on this operation was deducted, but the goods were not actually paid for, then there is no need to restore VAT. At the same time, if VAT was not deducted, then the entire amount, including tax, is written off as non-operating income.

A.I. Dybov, tax expert

Accounting for writing off bad receivables

The Letters from the Ministry of Finance and the Federal Tax Service mentioned in the article can be found: section “Financial and personnel consultations” of the ConsultantPlus system

In an ideal world, buyers always pay on time for goods delivered, sellers honestly ship products against the advance received, borrowers pay interest on time and repay the principal exactly on the day specified in the contract. It's different in the real world. And it’s also good that if the debtor simply violated the deadlines, he may not pay at all. Then sooner or later there will come a time when the debt becomes hopeless. Losing money is bad in itself. But it’s even worse if you fail to include this amount in tax expenses. We will talk about how to do at least this, as well as about accounting for the corresponding operations.

Let us warn you right away: simplifiers do not have the right to reduce income by the amount of a bad receivable, regardless of the transaction as a result of which it arose. This material will be of interest to them only in terms of accounting. clause 1 art. 346.16 Tax Code of the Russian Federation; Letter of the Ministry of Finance dated July 22, 2013 No. 03-11-11/28614.

Before it becomes hopeless, debt must... exist in principle

This means that the existence of debt and its amount must be proven by something other than an agreement or a debit balance on the account, for example 62 “Settlements with buyers and customers” or 76 “Settlements with various debtors and creditors”.

You will also need invoices, certificates of completed work, payment orders for the transfer of an advance or loan, bank statements confirming that money never arrived from the buyer, etc. Without this, say, a reconciliation report with a counterparty or the results of an inventory of accounts receivable what the inspectors will not be convinced of clause 1 art. 252 Tax Code of the Russian Federation; clause 77 of the Regulations, approved. By Order of the Ministry of Finance dated July 29, 1998 No. 34n (hereinafter referred to as Regulation No. 34n); Letter of the Federal Tax Service dated December 6, 2010 No. ШС-37-3/16955; Resolution of the Federal Antimonopoly Service No. F03-2605/2013 dated August 13, 2013; 15 AAS dated October 1, 2014 No. 15AP-14583/2014; 18 AAS dated January 30, 2013 No. 18AP-12064/2012; 20 AAS dated September 30, 2014 No. A68-7085/2013.

But suppose, according to all the documents, it turns out that there is a debt. For what reason can it transform into hopeless?

Reasons for hopelessness

First, let's list the tax reasons in a list, and then consider each of its points separately. So, for tax purposes, a receivable is considered uncollectible if clause 2 art. 266 Tax Code of the Russian Federation:

• <или>the statute of limitations has expired;

• <или>the bailiff issued a resolution to terminate the enforcement proceedings and return the writ of execution to the creditor due to the fact that he did not find the debtor or his property sufficient to repay the obligations;
• <или>the debtor organization has been liquidated;
• <или>obligations are terminated due to force majeure or by an act of a government agency.

Remember that any of these events, or more precisely, whichever happens first, is suitable as a basis for recognizing a debt as hopeless. So, after liquidation of the debtor, there is no need to wait for the limitation period to expire, and vice versa Letter of the Ministry of Finance dated June 22, 2011 No. 03-03-06/1/373.

In accounting there is no such detailed list of reasons for writing off obligations; only the expiration of the limitation period is directly mentioned and clause 77 of Regulation No. 34n. However, purely economically, a tax list is used for these purposes, which can be enshrined in accounting policies. However, you also have the right to expand this list by prescribing more liberal conditions for recognizing debts as bad for accounting purposes, if, of course, they are dictated by economic reasons. But then you should remember that there will be differences between tax and accounting accounting, since in the latter the debt will be written off earlier.

Now, as we agreed, we will dwell on each of the “hopeless” tax reasons separately.

Expiration of the statute of limitations

The statute of limitations is the period during which you can go to court to collect a debt. Didn't apply? In this case, the court will not consider the claim if the debtor claims that the statute of limitations has passed, which means that you no longer have legal ways to get what you are owed Art. 195, paragraph 1, art. 200 Civil Code of the Russian Federation.

At the same time, you need to understand: by filing a lawsuit against the debtor, you completely lose the opportunity to recognize the debt as hopeless and write it off due to the expiration of the statute of limitations. You will have to prove the “hopelessness” of the obligation, referring to other circumstances listed in the list (bailiff’s resolution, liquidation of the debtor, etc.). The same applies to the case when you find out that the debtor is in bankruptcy proceedings. Letters of the Ministry of Finance dated 05/18/2012 No. 03-03-06/1/250, dated 03/04/2013 No. 03-03-06/1/6313, dated 05/29/2013 No. 03-03-06/1/19566.

In order to correctly determine the date of expiration of the limitation period (and therefore the date the obligation becomes uncollectible), we need to know its start date, total duration, and completion date, taking into account the interruption or suspension of the period. This is what we will do.

Start of countdown

If the start date of the period falls on a weekend or holiday, this does not mean anything: the period begins as if nothing had happened Art. 191 Civil Code of the Russian Federation. When exactly does this period start? It all depends on the wording of the contract. You will find some examples in the table.

The way in which the deadline is set clause 2 art. 200 Civil Code of the Russian Federation	Example
	Formulation of the contract	Determining the start date of the limitation period if the counterparty fails to fulfill the obligation
Obligation with a certain period of fulfillment	The buyer is obliged to pay for the goods within 3 working days from the date of their acceptance	The buyer accepted the goods on Wednesday, 10/15/2014. Three working days for payment are 10/16/2014, 10/17/2014 and 10/20/2014 (Thursday, Friday and Monday, respectively). The limitation period begins on October 21, 2014 (Tuesday)
	The borrower must repay the loan amount no later than 10/02/2014 (Thursday)	Start of the limitation period - 10/03/2014 (Friday)
The deadline for fulfilling the obligation is determined by the moment of demand or is not set at all	After receiving the advance, the contractor is obliged to provide the service within 2 working days from the date of receipt of the customer’s application	The customer transferred the advance and on Wednesday, October 29, 2014, submitted an application to the service provider. No services were provided either on 10/30/2014 or 10/31/2014 (Thursday and Friday, respectively). Start of the limitation period - 01.11.2014 (Saturday)
	After signing the certificate of completion of work, the customer must pay for it on the next working day following the day of request by the contractor	The customer received the demand on 10/20/2014 (Monday), but did not transfer the money on 10/21/2014 (Tuesday), therefore 10/22/2014 (Wednesday) is the first day of the limitation period
	The parties did not provide payment terms in the agreement	On 10/23/2014 (Thursday), the seller demanded that the buyer pay for previously shipped goods on 10/24/2014 (Friday). The counterparty did not fulfill the demand, and the statute of limitations began on October 25, 2014 (Saturday)

As you can see, the beginning of the limitation period cannot be determined based on accounting data alone, since you will most likely make an entry reflecting the amount of the debt before the period expires. So, for example, you will show the buyer’s debt on the day the goods are shipped, and not on the day of payment established by the contract. We are no longer talking about a loan issued for several years. According to it, the limitation period will begin only on the day following the day of return of the amount established by the agreement. Although the lender will reflect the amount disbursed in accounting on the day it is paid to the borrower.

General and special limitation periods

Well, the start date of the term is clear to us. Now you need to understand how long it lasts. Everyone knows that the general statute of limitations is 3 years. clause 1 art. 196 Civil Code of the Russian Federation. But there are also special ones.

So, only 1 year is given to you to sort out the debt under the contract for the carriage of goods and transport expedition, 2 years are allotted for filing claims under property insurance contracts clause 3 art. 797, paragraph 1, art. 966 Civil Code of the Russian Federation; Art. 13 of the Law of June 30, 2003 No. 87-FZ. These are not all the options, but the remaining ones are exotic and not worth your attention.

Completion of the term

ATTENTION

A day off (non-working holiday) shifts the end date of the limitation period to the nearest weekday, but not its start date.

If the limitation period was not interrupted or suspended (more on that a little later), it ends 3 years later (1 year, 2 years - depending on the type of contract) on the same date of the calendar month that it began. Let's say the deadline started on July 17, and 3 years later on July 17 it ended. However, if the second July 17th in our example falls on a weekend or holiday, the expiration date of the statute of limitations is moved to the next weekday. This is especially true for long holidays such as the January holidays or May celebrations. Art. 193 Civil Code of the Russian Federation; Resolution of the Federal Antimonopoly Service of the Moscow Region dated May 21, 2013 No. A40-87035/12-102-796; FAS PO dated 01.08.2014 No. A55-12319/2013; FAS UO dated September 29, 2011 No. F09-4683/11.

Example. Calculation of the limitation period

/ condition / According to the contract, the carrier who received the advance payment undertakes to fulfill the order no later than the next working day following the day of receipt of the application from the customer. The application was received on October 30, 2013, but the carrier did not fulfill its obligations. The customer did not go to court, and the carrier was not liquidated. We will determine when the one-year limitation period for this obligation expires. clause 3 art. 797 Civil Code of the Russian Federation.

/ solution / The limitation period is calculated as follows:

Interruption of the deadline

If it follows from the actions of the counterparty that he acknowledged the existence of the debt, the statute of limitations will be interrupted and will begin again. Art. 203 Civil Code of the Russian Federation. Then, from the date the debt appears until the date of its full write-off, much more than 3 years may pass (1 year, 2 years - depending on the situation).

Therefore, if the debtor, assessing the hopelessness of the obligation, does not take into account that the limitation period has been interrupted, he will incorrectly determine the expiration date, which means he will prematurely write off the debt as tax expenses. This will certainly come up when you check it. Resolution 9 AAS dated October 22, 2014 No. 09AP-38804/2014.

WE WARN THE LAWYER

If the creditor is interested in interrupting the limitation period, you need to check the authority of the employee who will sign the document acknowledging the debt on the part of the debtor (provided that this is not the director). These rights can be delegated to the employee by power of attorney, job description, order from the manager, etc. Therefore, it is worth asking him for a copy of the relevant document and keeping it in case the creditor decides to sue or write off the debt after the statute of limitations has expired.

According to the Supreme Arbitration Court and the Supreme Court, the debtor acknowledges the obligations and thereby interrupts the statute of limitations, in particular, if:

• <или>in some form, for example by letter, informed that he was ready to repay the debt, or signed a reconciliation act and Resolution of the Presidium of the Supreme Arbitration Court of February 12, 2013 No. 13096/12;
• <или>partially paid the debt or paid off accrued penalties;
• <или>asked to change the contract, for example to move the payment date.

The most important nuance - on the part of the debtor, the existence of obligations must be confirmed not by just anyone, but by a person who has the authority to do so arising from his job duties or a power of attorney clause 20 of the Resolution of the Plenum of the Supreme Court of November 12, 2001 No. 15, of the Plenum of the Supreme Arbitration Court of November 15, 2001 No. 18. By default, the manager has such powers, and he already delegates them to someone else.

But the chief accountant (and even more so an ordinary accountant) in most cases does not have the right to sign for the existence of a debt on behalf of the entire company and Qualification reference book, approved. Resolution of the Ministry of Labor dated August 21, 1998 No. 37. Therefore, only an accounting autograph from the debtor on the reconciliation report does not interrupt the statute of limitations.

Example. Calculation of the interrupted limitation period

/ condition / According to the agreement, the buyer was supposed to pay the seller for the goods delivered no later than September 30, 2014, but did not do this. On 02/12/2015, he sent a letter signed by the director, in which he referred to the difficult financial situation and promised to repay the debt at the first opportunity. On June 26, 2015, the parties carried out a debt reconciliation, the results of which were certified by the companies’ chief accountants. The seller did not go to court, and the buyer was not liquidated. We will determine when the three-year limitation period for this obligation expires.

/ solution / A break in the statute of limitations affects its duration as follows:

Suspension of the term

Suspension differs from interruption in that it does not reset the statute of limitations. That is, after the end of the suspension period, the period continues. However, the pause time does not count towards it.

It’s as if a car drove for 15 minutes, then parked for 10 minutes, then started moving again, and at the end of the journey, 20 minutes later, the driver was asked: “How long has the car been moving?” Of course, he will exclude the parking period (10 minutes) from the calculations and say that he moved for 35 minutes (15 minutes + 20 minutes).

So it is with the suspension of the statute of limitations. Take a look at the table.

Period and reason for suspension*	Example	When a reason must appear (continue to exist) for it to suspend the term	The procedure for calculating the statute of limitations after its renewal
For the duration of force majeure that prevented the filing of a claim subp. 1 clause 1 art. 202 Civil Code of the Russian Federation	The flood paralyzed the work of the lender and the courts	During the last 6 months of the limitation period	If, after the end of the suspension period, the remaining limitation period is less than 6 months, it is extended to a full 6 months in clause 4 art. 202 Civil Code of the Russian Federation. Exception - a lawsuit is left without consideration due to the actions (inaction) of the plaintiff clause 3 art. 204 Civil Code of the Russian Federation
During the period of the moratorium on the fulfillment of obligations introduced by the government subp. 3 p. 1 art. 202 Civil Code of the Russian Federation	For the period of abnormal frosts and before the start of the sowing season, a moratorium on demanding payment from agricultural enterprises was declared
From the date of filing the claim to the date the court issued a ruling by which it left the claim without consideration clause 1 art. 204 Civil Code of the Russian Federation	The creditor filed a lawsuit, but without requesting that the case be considered without him, he failed to appear at the hearings twice, and the defendant did not demand that the dispute be heard on the merits. clause 9, part 1, art. 148 Arbitration Procedure Code of the Russian Federation	Doesn't matter
From the date of conclusion of the agreement to conduct mediation to the date of completion of the procedure**, but not more than 180 days clause 3 art. 202 Civil Code of the Russian Federation; clause 1 art. 8, art. 13 of the Law of July 27, 2010 No. 193-FZ	-

* The reasons most often encountered in business practice are given. You will find a complete list in paragraph 1 of Art. 202 of the Civil Code of the Russian Federation.

** Mediation is a paid procedure for out-of-court settlement of a dispute with the help of one or more individuals - mediators, independent of the parties to the conflict. If the disputants reach an agreement, the procedure ends with the signing of a mediation agreement. If not, the mediation is terminated, for example, at the request of one of the parties or the mediator Articles 2, 14 of the Law of July 27, 2010 No. 193-FZ.

Example. Calculation of the suspended limitation period

/ condition / The agreed date for payment by the customer for the services provided to him is 09/30/2014. However, the customer did not transfer the money either on that day or later. On June 1, 2015, the executor went to court, but it left the claim without consideration due to the fault of the executor. The ruling on this was made on August 31, 2015. The contractor no longer tried to collect the debt, the customer was not liquidated. What is the total length of the statute of limitations in this case?

/ solution / The suspension period will affect the limitation period as follows:

Since September 1, 2013, the Civil Code of the Russian Federation has stipulated that, in any case, the limitation period cannot be more than 10 years from the date the obligation arose. Experts have not yet agreed on how to interpret this rule when interrupting or suspending the statute of limitations. But for most business situations, this problem is hardly relevant: it is doubtful that the term would be interrupted (suspended) so often that it would go beyond the ten-year period counting from the date the debt arose.

We are done with the expiration of the statute of limitations. Let's look at other reasons for recognizing debts as bad.

End of enforcement proceedings due to impossibility of collection

You will find interpretations of the new norm of the Civil Code of the Russian Federation on the limitation period:

Let's assume you didn't wait for the statute of limitations to expire, went to court and won the case. In the end, you received a writ of execution for debt collection and handed it over to the bailiff. And after some time he just threw up his hands: it was not possible to find the counterparty or his property sufficient to pay off the obligations. In this case, a decision is made to terminate the enforcement proceedings and to return the writ of execution. subp. 3, 4 p. 1 art. 46 of the Law of October 2, 2007 No. 229-FZ (hereinafter referred to as Law No. 229-FZ).

If the court has not recognized the existence of a debt (part of a debt), it cannot become hopeless; the debt simply did not exist in the first place. Consequently, the corresponding amount cannot be written off as expenses. Letter of the Ministry of Finance dated September 18, 2009 No. 03-03-06/1/591.

In principle, nothing prevents you from trying again to collect the debt through the bailiff within 3 years from the date the court decision entered into force. clause 1 art. 21, paragraph 4 of Art. 46 of Law No. 229-FZ. What if you get lucky? But in life everyone understands: if nothing is found the first time, it is unlikely that anything will ever be found again. This is probably why the Tax Code introduced a rule about turning an obligation into a hopeless one. clause 2 art. 266 Tax Code of the Russian Federation.

The date that the bailiff puts on the order will most likely differ from the date you received a copy of the document. Which of them is considered the day the receivable becomes uncollectible? We can assume the second one, since even by law, in the best case scenario, the creditor will have a copy within a day and clause 7 art. 47 of Law No. 229-FZ. The main thing is to record the date of receipt, for example, in the journal of incoming correspondence. At worst, a postage stamp on the envelope will do.

However, a specialist from the Ministry of Finance has a different opinion.

FROM AUTHENTIC SOURCES

Advisor to the State Civil Service of the Russian Federation, 3rd class

“ If the bailiff has issued a resolution to terminate the enforcement proceedings and return the writ of execution, for profit tax purposes the receivables are considered uncollectible on the date of the resolution. That is, it will be the date specified in the resolution and.”

But let’s say that, having received a bailiff’s order, you wrote off a bad debt as an expense. And then they decided: an attempt is not torture - and they turned to the bailiff with a writ of execution again. And, lo and behold, he managed to collect all or part of the debt. Then after this significant event you are required to include the amount received:

• for tax purposes - in non-operating income Art. 250 Tax Code of the Russian Federation;
• for accounting purposes - in other income clause 7 PBU 9/99.

Sometimes it happens that, having won the court and received a writ of execution, the creditor does not turn to the bailiff to collect the debt within 3 years allotted for this from the date the court decision came into force. Then, to write off the debt in tax accounting, you will have to wait for the liquidation of the debtor organization: no other reason from the current list clause 2 art. 266 Tax Code of the Russian Federation not suitable for this situation. Unless, of course, a law is passed later that specifically recognizes such obligations as terminated and clause 2 art. 266 Tax Code of the Russian Federation; Art. 417 Civil Code of the Russian Federation.

Liquidation of the debtor organization

The reasons why a company that owes you a debt may cease to exist are different, but we will consider the three most common ones - the decision of the participants, bankruptcy and forced exclusion from the Unified State Register of Legal Entities. The latter, however, is not liquidation, but let’s not get ahead of ourselves.

The question common to all three situations is: is it necessary to obtain a paper extract from the Unified State Register of Legal Entities confirming the liquidation of the debtor, or is a printout from the Federal Tax Service website sufficient?

Information from the Unified State Register of Legal Entities can be found: Federal Tax Service website

Officials believe that without an extract there is no way: the data from the tax service website means nothing Letters of the Ministry of Finance dated February 20, 2007 No. 03-03-06/1/105, dated March 14, 2014 No. 03-03-06/1/11063. And if you are not eager to argue with the tax office and know for sure that the counterparty no longer exists, it is better to obtain the document. Moreover, it is advisable to hurry up with your request to the Federal Tax Service so that the paper reaches you in the same quarter in which the organization was liquidated. If an extract from the Unified State Register of Legal Entities comes to you later and on this basis the debt is written off in the quarter of its receipt, and not in the quarter of liquidation of the company, a dispute with the tax authorities is likely, albeit with a high chance of success Resolution 20 AAS dated 03/03/2014 No. A68-5375/2013.

Now let’s go over the nuances associated with the liquidation of the debtor organization, depending on the reasons for the incident.

Liquidation of a debtor company by decision of the participants or due to bankruptcy

The procedures for liquidating a company on these two grounds are very different and often lengthy, but one thing is important for you - until the debtor is liquidated and an entry about this appears in the Unified State Register of Legal Entities, his debt is not considered bad for tax purposes.

ATTENTION

The debt of a bankrupt organization becomes hopeless on the day it is excluded from the Unified State Register of Legal Entities, and the debt of a bankrupt individual entrepreneur - on the day the court made the corresponding ruling.

It may well happen that the futility of waiting for money will become clear to you long before this moment. For example, when during the bankruptcy procedure it was discovered that the property of the debtor company is definitely not enough to pay off its obligations to you. Or the court has already declared the company bankrupt, but it has not yet been excluded from the register of legal entities - this may well take more than 2 months in pp. 1, 2 tbsp. 149 of the Law of October 26, 2002 No. 127-FZ. The law is inexorable: if the debtor organization is not liquidated, for tax purposes its obligations to you are not hopeless clause 2 art. 266 Tax Code of the Russian Federation; Letters of the Ministry of Finance dated 03/04/2013 No. 03-03-06/1/6313, dated 04/11/2008 No. 03-03-06/1/276.

If a person has withdrawn from registration as an individual entrepreneur, this does not extinguish his obligations assumed during commercial activities. Ch. 26 Civil Code of the Russian Federation.

In case of bankruptcy of an individual entrepreneur, the debt becomes uncollectible on the day the court made the corresponding ruling clause 1 art. 212 of the Law of October 26, 2002 No. 127-FZ; Letter of the Ministry of Finance dated September 28, 2009 No. 03-03-06/2/183; Resolution 15 AAS dated 08/07/2014 No. 15AP-3173/2014.

Exclusion of an inactive debtor organization from the Unified State Register of Legal Entities

If you look at the tax list of reasons for recognizing debts as bad, you will not find such a reason as in the subheading. That is why the Ministry of Finance for a long time refused to recognize the right of creditors to take into account in expenses the receivables of companies forcibly deleted from the Unified State Register of Legal Entities by a decision of the Federal Tax Service due to the fact that during the 12 months preceding this sad incident clause 1 art. 21.1 of the Law of 08.08.2001 No. 129-FZ; Letter of the Ministry of Finance dated February 27, 2013 No. 03-03-06/1/5556:

• did not submit tax reports;
• did not make transactions on at least one bank account.

However, common sense has always suggested that, in terms of legal consequences, the exclusion of a company from the Unified State Register of Legal Entities is equivalent to its liquidation. The courts followed this logic when making decisions in favor of creditors, and finally, from September 2014, the same rule was enshrined directly in the Civil Code of the Russian Federation. The financial department will no longer be able to ignore this, and now the debt of such companies can be safely included in expenses for tax purposes clause 2 art. 64.2 of the Civil Code of the Russian Federation (as amended, valid from 09/01/2014); Resolution of the FAS VSO dated September 27, 2012 No. A19-8821/2011; FAS NWO dated 02/09/2011 No. A56-14027/2010; 13 AAS dated March 22, 2011 No. A56-41073/2010.

Termination of an obligation due to impossibility of performance

According to the law, his heirs are jointly and severally liable for the debts of a deceased person (including an individual entrepreneur). But only within the limits of the value of the inherited property. Thus, obligations in an amount exceeding this value are terminated precisely due to the impossibility of fulfillment - you have no one else to ask Articles 416, 1175 of the Civil Code of the Russian Federation.

Now an example suggested by arbitration practice. The landlord tried to collect rent arrears from the entrepreneur-tenant, but the latter was able to prove that he had not signed the agreement and had not seen the property. Some unidentified person, who actually used the property, was assigned as the culprit. But, of course, the landlord will not get anything from it. As a result, the court recognized that the obligations were terminated and the receivable could be included in non-operating expenses Resolution of the Federal Antimonopoly Service of Ukraine dated November 30, 2012 No. F09-11741/12.

It is quite difficult to imagine other situations in which obligations are terminated by impossibility of fulfillment and on this basis are written off for tax purposes.

Act of a government agency as a basis for termination of an obligation

Until 2013 in Art. 266 of the Tax Code there was no such separate reason for the termination of an obligation as the bailiff’s decision to end enforcement proceedings. And at that time, it was this document that the courts considered to be the very act of the government agency, on the basis of which it was possible to write off the debt in tax accounting. Resolution 7 of the AAS dated November 30, 2012 No. A27-9618/12; 13 AAS dated October 26, 2012 No. A21-4165/2012; 20 AAS dated 04/28/2012 No. A68-10005/11.

But now there is no longer a need for this. Then in what other cases, based on an act of a government agency, do you have the right to recognize the obligation as terminated? Art. 417 Civil Code of the Russian Federation and include its amount in expenses?

Based on the arbitration practice available to us, we can say that creditors almost never use this basis for profit tax purposes.

Thus, in 2010, the Supreme Arbitration Court recognized as a bad debt the value of shares and interests seized from the company’s property without any compensation by order of the governments and Resolution of the Presidium of the Supreme Arbitration Court of November 30, 2010 No. 9167/10. Anti-example - the Bank of Russia revokes the bank’s license, the company’s money hangs up in the account or deposit. Is this grounds for writing off accounts receivable? No, since the bank is subject to liquidation and as part of this procedure, the owner of the account (deposit) may lose something Letters from the Federal Tax Service for Moscow dated 02/03/2009 No. 16-15/008610, dated 11/11/2011 No. 16-15/109658@.

Thus, an act of a government agency, along with the impossibility of fulfilling obligations, is a very controversial basis for recognizing debts as bad in tax accounting and should be used only in the most obvious cases. Otherwise, it is better to wait until another basis appears from the list of Art. 266 of the Tax Code of the Russian Federation, for example, the statute of limitations expires or the debtor is liquidated.

Additional conditions for recognizing debts as bad according to controllers

Well, we analyzed the conditions for recognizing and writing off bad debts, directly established by the Tax Code of the Russian Federation and other laws. But the Federal Tax Service, the Ministry of Finance and their subordinates would not be themselves if they had not come up with additional obstacles. However, in fairness, we note that some of them are quite reasonable.

The debt must be related to the sale of goods (works, services)

Now the argument from the subtitle is found less and less often, but it has not completely disappeared from the practice of tax inspectorates. It is brought to light in ambiguous situations, when a potentially bad debt arose as if outside the usual scheme “I give you money or goods - you give me something in return.” For example, we are talking about never-repaid debt acquired through the assignment of a claim, or about the value of shares of a closed joint-stock company that have become useless and Letters of the Ministry of Finance dated October 30, 2007 No. 03-03-06/2/196, dated March 23, 2009 No. 03-03-06/1/176.

In the last case, with shares, in 2009 the case reached the Supreme Arbitration Court, and it decided that the shareholder, left with nothing after the liquidation of the joint-stock company, has the right to take into account for tax purposes the cost of the securities that have turned into ordinary paper. Later, in 2010, the court, as we already mentioned, recognized the value of shares seized from the company by the state as a bad debt. Resolutions of the Presidium of the Supreme Arbitration Court dated June 9, 2009 No. 2115/09, dated November 30, 2010 No. 9167/10.

And although the subject of controversy was precisely the shares, the conclusions of the BAC can be considered universal for any unusual debts. It is also noteworthy that since then neither the Ministry of Finance nor the Federal Tax Service have issued letters in which they would try to stick to their line.

By the way, when it came to non-repayable loans that were not initially related to the sale of goods, works or services, the financial department never doubted their hopelessness Letters of the Ministry of Finance dated 04/22/2010 No. 03-03-06/1/283, dated 12/13/2011 No. 03-03-06/2/195.

However, to be sure, we asked a ministry specialist whether all debts can become bad or if there are any exceptions.

FROM AUTHENTIC SOURCES

“ Subject to the conditions established by paragraph 2 of Art. 266 of the Tax Code of the Russian Federation, any debt can be recognized as hopeless, even if it is not related to the sale of goods, work, or services.”

Ministry of Finance of Russia

The creditor is obliged to make efforts to collect the debt

Another argument that is going out of fashion among tax authorities, but still appears in arbitration practice. We think the fiscal rationale is clear: since you didn’t try to get what you were owed, it means that the economic justification for expenses in the form of writing off a bad debt is questionable. clause 1 art. 252 Tax Code of the Russian Federation.

However, this is a rare case when the actions of the Federal Tax Service run counter to the explanations of the Ministry of Finance. He has been writing for a long time (and quite correctly) that the ability to include the amount of a bad debt in tax expenses is in no way tied to your efforts to collect it. There is a reason for “hopelessness” - there is a written off debt. Arbitration courts remember this well Letter of the Ministry of Finance dated September 30, 2005 No. 03-03-04/2/68; Resolution 4 of the AAS dated 09/08/2014 No. A58-683/2014; 5 AAS dated March 20, 2013 No. 05AP-2122/2013; 9 AAS dated 04/02/2014 No. 09AP-7102/2014; 15 AAS dated 06/04/2013 No. 15AP-4266/2013.

Debt forgiven by settlement cannot be uncollectible

There is only one case when this statement is clearly true - you write off the debt without any conditions, that is, you actually give the corresponding amount to the debtor. Then, of course, it cannot be taken into account for tax purposes, like any “gratuitous” expenses. However, such a situation is very rare; settlement agreements in court are not concluded in order to lose everything. This can be done without arbitration clause 2 art. 248, paragraph 16 of Art. 270 Tax Code of the Russian Federation.

WE WARN THE MANAGER

If the creditor forgives part of the debt with the condition that the rest be paid without going to court, and given the fact that he did not actively try to collect what was owed, he loses not only the forgiven amount of money, but also the opportunity to take it into account for tax purposes. It is better to file a lawsuit and, during the proceedings, enter into a settlement agreement that will be approved by the court. Then the forgiven portion of the debt will at least reduce taxable income.

Nevertheless, the Ministry of Finance and its subordinates at one time were inclined to consider any forgiven debt as a gift, regardless of the terms of the settlement agreement Letter of the Ministry of Finance dated August 21, 2009 No. 03-03-06/1/541. One of these disputes came to the attention of YOU. The seller, in exchange for repaying 2/3 of the receivable amount, forgave the buyer the remaining 1/3 and included it in expenses. The tax authorities refused to recognize the legality of this, but the supplier’s judges supported it. Among others, they put forward a very sound argument Resolution of the Presidium of the Supreme Arbitration Court of July 15, 2010 No. 2833/10.

It is as follows. If the seller had not attempted to collect what was owed within the statute of limitations, he would have easily written off the entire amount of the debt as an expense when the statute of limitations expired. And he tried. And according to the settlement agreement approved by the court, he even knocked out something. It turns out unfair: if you don’t do anything, you take into account the unrecoverable receivable for tax purposes in full; if you do, you lose the right to the “unreliable” part of the amount.

You will find details about tax accounting of transactions when debt is forgiven from a creditor and debtor:

As the explanations of the Federal Tax Service show, the service has come to terms with the conclusion of YOU, but at the same time indicates that you must be ready to explain to the inspectors the feasibility of the terms of the settlement agreement, which led to the write-off of part of the debt. Simply put, you need to show how you see benefit from what happened. If it doesn’t work out, I’ll have to say goodbye to the expenses Letters of the Federal Tax Service dated 08/12/2011 No. SA-4-7/13193@ (clause 18), dated 01/21/2014 No. GD-4-3/617.

What could be such a benefit? In the case considered by YOU, it is obvious: to get at least something instead of zero. This argument is also found in decisions of lower courts in Resolution 9 AAS dated May 12, 2011 No. 09AP-9801/2011-AK. Another example from the practice of the Supreme Court - the court did not consider forgiveness of debt on interest on a loan in exchange for the return of its principal amount to be a gratuitous transaction clause 3 of the Information Letter of the Presidium of the Supreme Arbitration Court dated December 21, 2005 No. 104.

Sometimes the parties agree to forgive part of the debt with the condition of repaying the remaining part, without going to court, respectively, without its approval of the settlement agreement. In this case, the creditor will have to prove to the inspectors that he tried his best to get the debt out of the counterparty, but nothing worked out and he was forced to agree to a settlement in the hope of receiving at least part of the amount. In addition, this allowed him to avoid legal costs. If the creditor does not take care of this, he will not be allowed to write off the forgiven debt as expenses, and the court will not help him. Resolutions of the Federal Antimonopoly Service No. A32-9533/2009 dated 04/08/2013, No. A32-27645/2012 dated 03/12/2014; FAS PO dated 01.08.2013 No. A55-27138/2012; FAS UO dated April 22, 2014 No. F09-1388/14.

There are guarantors - there is no “hopelessness”

This is exactly how the Ministry of Finance argues ingenuously. At first glance, everything is correct: if someone else, in addition to the main debtor, showed a willingness to fulfill the obligation and signed up for it in the contract, then he should be paid if something happens. Where does bad debt come from? Art. 361 Civil Code of the Russian Federation; Letter of the Ministry of Finance dated 06/09/2014 No. 03-03-10/27603?

ATTENTION

If there is a guarantor, the bailiff's decision to terminate enforcement proceedings due to the impossibility of collecting the debt from the main debtor does not make the obligation hopeless. You still have a chance to collect the debt from the guarantor.

And here's where it comes from.

Let's start with the expiration of the statute of limitations.

The surety agreement may specify a period during which the surety is willing to pay “for that guy.” In those cases where the guarantee period is not established in the contract, it is terminated if you Not sue the guarantor within clause 4 art. 367 Civil Code of the Russian Federation:

• <или>years from the date of maturity of the main obligation;
• <или>2 years from the date of conclusion of the guarantee agreement, if the main agreement does not provide for a payment period and cannot be determined by the moment of demand.

As we see, the guarantee may well end before the statute of limitations expires. And when the last one came out, there was nothing to talk about at all - the debt was hopeless, regardless of the presence of a guarantor clause 1 art. 207 Civil Code of the Russian Federation; Resolution of the Federal Antimonopoly Service of October 14, 2011 No. A35-10553/2010.

Now about the liquidation of the debtor organization. Everything is clear here: at the moment when the main debtor is deleted from the Unified State Register of Legal Entities, all obligations of the guarantor, against whom you did not sue separately, cease, and you no longer have the right to demand anything from him. Consequently, in this case, the debt becomes hopeless, despite the past guarantee, no matter how much the Ministry of Finance would like to Art. 419 Civil Code of the Russian Federation;.

But if a claim is filed against the guarantor, and the debtor “ceases to be” later, the court will consider the case on its merits, and the opportunity to collect the debt remains clause 1 art. 367 Civil Code of the Russian Federation; clause 21 of the Resolution of the Plenum of the Supreme Arbitration Court of July 12, 2012 No. 42. Therefore, there is no reason to consider it hopeless.

Upon the death of an individual - the debtor, everything depends on the content of the guarantee agreement.

If it states that the guarantor retains his obligations towards the heirs, who, as you remember, are responsible for the debts of the deceased, then if the latter refuse to pay the bills, the guarantor must do this. But, like the heirs, within the limits of the value of the inherited property. Accordingly, in this case, in full, the debt of the deceased is really not hopeless. clause 62 of the Resolution of the Plenum of the Supreme Court of May 29, 2012 No. 9.

At the end of enforcement proceedings and the impossibility of collecting the debt from the main debtor, we can also confidently say that the presence of the guarantor will certainly prevent the obligation from being recognized as hopeless. For if the main debtor does not have the money, the guarantor may well have it, just go to court clause 7 of the Information Letter of the Presidium of the Supreme Arbitration Court dated January 20, 1998 No. 28. And until you try to get funds from it, you cannot write off the debt as hopeless. When is it possible? See the already familiar list of reasons for this: expiration of the statute of limitations, liquidation of the guarantor company, etc. Letter of the Ministry of Finance dated August 31, 2012 No. 03-03-06/2/96

Joint and several debt ≠ bad

What is joint and several debt? This is when several persons are equally liable for the same obligation, among whom there is no primary debtor, that is, they are all equal. Accordingly, you can apply for payment either to each individual or to all of them at once. And as long as you have the opportunity to collect money from at least one of the joint debtors, the obligation is not considered hopeless Art. 323 Civil Code of the Russian Federation; Letter of the Ministry of Finance dated April 12, 2012 No. 03-03-06/1/194.

In most cases, you should be aware of the “solidarity” of the debtor from the very beginning. Thus, if an agreement is signed by a participant in a simple partnership conducting general affairs, he notifies the counterparty of his status. As a result, the “comrades” are liable for the debts of the community together. Finally, as has been said more than once, in connection with the death of an individual, the heirs assume his obligations jointly and severally within the limits of the value of the inherited property and pp. 1, 2 tbsp. 1044, paragraph 2 of Art. 1047, paragraph 1, art. 1175 Civil Code of the Russian Federation.

Read about the most important amendments to Part One of the Civil Code of the Russian Federation, including the subsidiary obligations of participants who have not paid the company’s management fees:

But sometimes it happens that until some point you know nothing about the “solidarity” of the debt. In particular, if the subsidiary entered into a transaction with you with the consent of the parent company or at its direction, the latter becomes a joint and several debtor. LLC participants who have not paid for their shares in the management company at the time of concluding the agreement are also jointly and severally liable for the obligations of the company to the extent of the unpaid value of the share clause 2 art. 67.3, clause 1, art. 87 Civil Code of the Russian Federation.

However, you are unlikely to find out about all this before you file a lawsuit or start bankruptcy proceedings. But as soon as you find out, you must be aware that until you try to collect what is owed from all those involved in the case, the debt will not become hopeless.

A little about the statute of limitations in the presence of joint debtors. It starts at the same time for everyone, but it can end differently. How is this possible? Let's say you sent a claim for late payment for goods delivered to two joint debtors. One remained silent, and the second responded with a letter in the style of “as soon as possible!” signed by the director.

Assuming you no longer attempt to collect the debt, the statute of limitations will end after 3 years:

• for the first debtor - counting from the date of payment for the goods established by the agreement clause 1 art. 196 Civil Code of the Russian Federation;
• for the second debtor - counting from the date you received the letter acknowledging the debt Art. 203 Civil Code of the Russian Federation.

Consequently, the obligation will become hopeless only when the period for filing claims against the second debtor expires. The fact that by this time the deadline for the relationship with the first debtor will have expired does not matter.

So, you have clearly decided: there is a debt, the reason to recognize it as hopeless has arrived, additional conditions for writing off receivables, for the sake of which you do not want to quarrel with the tax authorities, have been met. So now you have three questions:

• when can a debt be written off?
• what documents should be used to document this;
• How to reflect what happened in tax and accounting?

In what period is a bad debt written off and how to do it?

By default - in the quarter when the debt acquired this status. In the same quarter, as documentary support for debt write-off, you will need:

• primary, from which it follows that the receivable generally exists clause 1 art. 252 Tax Code of the Russian Federation;
• act of inventory of settlements with buyers, suppliers, other debtors and creditors. He has a unified form No. INV-17, but nothing prevents you from developing your own clause 77 of Regulation No. 34n;
• an order from the manager, which confirms the hopelessness of the debt and orders the corresponding amount to be written off from clause 77 of Regulation No. 34n. You can place an order, for example, like this.

LLC "Neusledili"

ORDER
dated October 29, 2014 No. 123
About writing off accounts receivable

Due to the expiration of the statute of limitations for the collection of debt from Denegnetinebudet LLC in the amount of 100,000 rubles, which arose on October 28, 2011 on the basis of a supply agreement dated October 22, 2011 No. 54 and the transfer of an advance payment by payment order dated October 23, 2011 No. 231, in the absence facts of interruption (suspension) of the limitation period, according to Art. 196 of the Civil Code of the Russian Federation and clause 77 of the Regulations, approved. By Order of the Ministry of Finance dated July 29, 1998 No. 34n,

I ORDER:

1. Chief accountant K.N. Rotozeeva to write off the specified amount in accounting and tax accounting by the date of publication of this order.

2. I reserve control over the execution of the order.

I have read the order:

All other requirements of the Federal Tax Service for documenting the write-off of bad debts are illegal. Thus, inspectors do not have the right to insist that you submit a debt reconciliation report, since conducting it is your right, not your obligation. In general, such papers do not belong to primary documentation. Resolution of the Federal Antimonopoly Service of October 17, 2013 No. A48-4654/2012.

Additional requirements of the Ministry of Finance for the procedure for writing off bad debts

Because bad debt reduces taxable income, officials try their best to make life difficult for the creditor writing off the debt. We have already examined what additional conditions they put forward for recognizing an obligation as hopeless in principle. Now the turn has come to situations in which inspectors do not argue with the very hopelessness of the debt, but illegally prevent it from being written off as expenses.

You cannot write off the entire debt if there is counter debt

Suppose company A supplied company B with goods worth 1000 rubles. There was no payment. After some time, company B provided company A with services worth 700 rubles. The latter responded in kind - did not transfer a single ruble. And now, the statute of limitations on the debt for the first delivery has expired. What amount can company A include in expenses - the entire amount of 1000 rubles. or only 300 rub. (1000 rubles - 700 rubles), that is, the difference between what is owed to her and what she owes?

The Ministry of Finance, of course, is in favor of the second option - the difference is written off as expenses. Company A can offset the rest as payment for services rendered to it, and there is no question of hopelessness. However, officials forgot that according to the Civil Code of the Russian Federation, offset is a right, not an obligation. If company A used it, good; if not, the entire amount of 1,000 rubles is considered hopeless for tax purposes. The Supreme Court issued a similar verdict on the issue of creating a reserve for doubtful debts. Art. 410 Civil Code of the Russian Federation; Letter of the Ministry of Finance dated October 4, 2011 No. 03-03-06/1/620; Resolution of the Presidium of the Supreme Arbitration Court of March 19, 2013 No. 13598/12.

True, the position of YOU is worth a conflict with the tax inspectorate only if the hopelessness of the debtor occurs much earlier than the hopelessness of the creditor. In our example, the statute of limitations for payment of services provided by company B to company A has not expired. This means that the latter has the right not to include in income a debt in the amount of 700 rubles, while expenses in the form of 1000 rubles. bad debts have already arisen. This results in a kind of deferment in the payment of income tax. And it can be extended, say, by periodically sending letters of repentance to company B with a promise to pay at the first opportunity.

But if, say, company B is liquidated, both debts become bad at the same time. And arithmetically, it doesn’t matter at all what company A does: include 1000 rubles. in expenses, and 700 rubles. in income or carry out an offset and write off only 300 rubles as expenses. But in practice, the first option is preferable - there is a danger that the Federal Tax Service will not understand the nuances and will simply include 700 rubles in income. And then prove in court that the expenses were reduced by the same amount and there is no arrears.

If there is a reserve for doubtful debts, any debt is written off against it

You know well that the tax reserve for doubtful debts (RSD) is formed only by overdue debts for goods supplied, work performed or services rendered. That is, for example, the amount of a loan that the debtor is in no hurry to repay, or the amount of an advance payment for which the seller will not ship the goods, are not included in the reserve. In addition, the value of the RSD is limited to 10% of revenue calculated on an accrual basis from the beginning of the year, which means that due to exceeding the limit, even doubtful debt associated with the sale of something may not be included in the reserve. pp. 1, 4 tbsp. 266 Tax Code of the Russian Federation; Letter of the Ministry of Finance dated June 30, 2011 No. 07-02-06/115.

At the same time, paragraph 5 of Art. 266 of the Tax Code states: if there is a RSD, bad debts are written off from it and, only if the reserve is not enough, the balance is included in expenses separately. The Ministry of Finance interprets this norm unambiguously: even if the amount of bad debt did not form the RSD, it is first written off at its expense. And it doesn’t matter that this is, say, a debt under a loan agreement that you had no right to reserve at all Letter of the Ministry of Finance dated July 17, 2012 No. 03-03-06/2/78.

However, YOU, unlike the Ministry, reads Art. 266 Tax Code in its entirety, not selectively. A comprehensive interpretation leads to the only correct conclusion - unreserved bad debt reduces income separately, its write-off does not affect the RSD. After this verdict, the Federal Tax Service will not be able to oppose you with anything. Resolution of the Presidium of the Supreme Arbitration Court of June 17, 2014 No. 4580/14.

Writing off the most popular types of debts

Now let's move on to writing off specific types of debt. Let's take the most common bad debts: for goods supplied (work performed, services rendered), for a transferred advance, under a loan agreement and, finally, for the assignment of a claim. In all cases, we will assume that you did not create a reserve for doubtful debts.

An accounting nuance for receivables written off due to the insolvency of the debtor (which is confirmed by the bailiff’s resolution on the completion of enforcement proceedings) - the amount of such debt must be kept in off-balance sheet account 007 for 5 years “Debt of insolvent debtors written off at a loss.” For what? To check from time to time whether anything has changed, in case the counterparty is ready to pay the obligation.

There is an opinion that written-off receivables should be “stored” for 5 years in off-balance sheet account 007, regardless of the reasons for the loss. However, the Ministry of Finance Regulation No. 34n clearly states: this is relevant only when the debtor cannot pay his bills, that is, he simply has no money. If the statute of limitations has expired, the debtor has been liquidated, etc., then it is strange to talk about his insolvency.

Buyer's debt for unpaid goods (work, services)

The seller includes in tax expenses the entire amount of the debt along with the submitted VAT. Unfortunately, it is impossible to accept the latter as a deduction due to the fact that the buyer never paid clause 5 art. 171 Tax Code of the Russian Federation; Letter of the Ministry of Finance dated October 21, 2008 No. 03-03-06/1/596.

Contents of operation	Dt	CT
On the date of shipment
Goods shipped		90-1 “Revenue”
The cost of shipped goods is taken into account	90-2 “Cost of sales”	41 "Products"
VAT charged	90-3 “Value added tax”	68 “Calculations for taxes and fees”, subaccount “VAT”
On the date of debt write-off
Buyer's bad debt written off	91-2 “Other expenses”	62 “Settlements with buyers and customers”
The written-off debt is reflected on the balance sheet to control the possibility of its collection (if the debt is written off due to the insolvency of the buyer)*	007 “Debt of insolvent debtors written off at a loss”

* For simplicity, such an entry is not given in subsequent wiring diagrams.

The seller's debt for the listed advance payment, against which the shipment did not take place

As you know, having paid an advance and received an invoice, the buyer has the right to deduct the VAT listed as part of the advance. If the delivery took place or the parties agreed to sever the relationship, after which the seller returned the advance, the buyer, strictly in accordance with the Tax Code, would have to restore the advance VAT payable to the budget. subp. 3 p. 3 art. 170, paragraph 12 of Art. 171 Tax Code of the Russian Federation.

But the debt has become hopeless, and neither the first nor the second reason for restoring the advance VAT will ever occur again. However, this does not prevent the Ministry of Finance from demanding that the buyer restore the tax in this case. Letter of the Ministry of Finance dated April 11, 2014 No. 03-07-11/16527. As a result, the buyer has two options for writing off bad debt on an advance payment.

OPTION 1 (Ministry of Finance). Advance VAT is restored, and the entire amount of the advance along with the specified tax is included in expenses. For example, if the buyer transferred 118,000 rubles to the seller. (VAT 18,000 rubles), and then took 18,000 rubles for deduction, then when the receivable becomes uncollectible, he restores 18,000 rubles. VAT and reduces taxable profit by 118,000 rubles. This should be reflected in accounting as follows.

OPTION 2 (fully compliant with NC, but risky). The buyer does not recover VAT, but includes the advance amount excluding this tax as expenses. In our example - 100,000 rubles. subp. 3 p. 3 art. 170, paragraph 1, art. 252 Tax Code of the Russian Federation

But be careful: in accounting, the buyer writes off the entire amount of the debt as other expenses - 118,000 rubles, and 18,000 rubles. VAT is charged to other income. The financial result, however, is the same - 100,000 rubles. loss. The postings on the debt write-off date will be as follows.

If the buyer initially did not deduct advance VAT, since the Tax Code does not oblige this, then he has only one way: to write off as expenses the entire amount of the debt along with the tax paid to the seller.

Borrower's debt on the loan and interest

Once the borrower discovers that the debt has become bad, he charges the principal amount of the loan. As for interest accrued up to and including the date the debt becomes uncollectible, it undoubtedly increases costs. If the borrower continued to accrue interest, increasing tax revenues, then the corresponding amount is expensed as a bad debt only when it became such due to:

• <или>expiration of the limitation period;
• <или>the bailiff issuing a resolution to terminate enforcement proceedings.

In all other situations, from the date the obligation became hopeless, for example after the liquidation of the borrower company, interest was not subject to accrual. And if the lender mistakenly continued to do this, he will have to take into account the interest not as bad debts, but as other justified non-operating expenses in the period when the error was revealed (taking into account other conditions established by clause 1 of Article 54 of the Tax Code of the Russian Federation) subp. 20 clause 1 art. 265 Tax Code of the Russian Federation.

In accounting, writing off a bad loan obligation will look like this.

Contents of operation	Dt	CT
On the date of loan disbursement
Loan issued		51 “Current accounts”
On the last day of each month of using the loan
Interest accrued on the loan	76 “Settlements with various debtors and creditors”, subaccount “Interest on loans issued”	91-1 “Other income”
On the date of debt write-off
Bad debt on the principal amount of the loan is written off	91-2 “Other expenses”	58-3 “Loans provided”
Bad debt written off with interest	91-2 “Other expenses”
REVERSE Interest accrued after the unconditional termination of the borrower's obligations (liquidation, act of a government agency, etc.) is excluded from other income.	76, subaccount “Interest on loans issued”	91-1 “Other income”

Debt acquired by assignment of claim

What is a transaction for the assignment of a claim? The new creditor acquires rights to the debt from the original creditor or from someone who “bought” the debt from the original creditor and now decides to assign it. During the assignment, VAT claims may or may not be presented to the new creditor - it depends on whether the transaction is profitable for the “assignor”. The new creditor has the right to accept the tax as a deduction. When there will definitely not be input VAT, it is when assigning a claim on a loan - this is a non-taxable transaction clause 1 art. 382 Civil Code of the Russian Federation; subp. 26 clause 3 art. 149, Art. 155, sub. 1 item 2 art. 171 Tax Code of the Russian Federation.

If the debtor pays a new creditor, he includes what he received as income, what he spent as expenses, and calculates VAT on the positive difference (again, this does not apply to loans). subp. 26 clause 3 art. 149, paragraph 2 of Art. 155, paragraph 3 of Art. 279 Tax Code of the Russian Federation. But if the debt is hopeless, there will be no income. And what amount should we estimate the expenses at - equal to the amount of the debtor's debt or the amount of costs for its acquisition?

In numbers it looks like this. Let's assume you bought a claim for 200,000 rubles. per ruble The debtor successfully went bankrupt. Which amount will reduce your taxable income - the first or the second?

Purely economically, of course, the ruble, since it was these funds that you actually spent on the transaction and you lost them without receiving anything from the debtor. 200,000 rub. for you, unlike the original creditor, the value is virtual.

We clarified this nuance with a specialist from the Ministry of Finance, and this is what they told us.

FROM AUTHENTIC SOURCES

“ An organization that purchased, for example, for 150 rubles. upon assignment of a claim, a debt in the amount of 200 rubles, if the debt is recognized as bad, the right to include in expenses only the amount spent on acquiring the right of claim, that is, 150 rubles.”

Ministry of Finance of Russia

Article 279 of the Tax Code establishes a special procedure for tax accounting of losses from the assignment of a claim for the original creditor. However, this provision has nothing to do with a new creditor who acquired a debt during an assignment, which later became hopeless. And in general, the entire article. 279 is not for him.

But in accounting, everything is clear: expenses include the amount you spent on acquiring a bad debt, regardless of its face value. After all, it is at the cost of acquisition that the claim is included in your financial investments and this same cost is written off when the hopelessness of the obligation becomes obvious. paragraph 3, paragraph 9, paragraph 21, paragraphs. 25, 26 PBU 19/02.

What else should be taken into account when writing off a debt received through the assignment of a claim? Its amount will have to be confirmed not only by the documents with which the assignment was formalized, but also by the agreement and the primary document (or their certified copies), from which it follows that the acquired debt existed at all. If the debt arises from a supply agreement, the agreement itself between the original creditor and the debtor plus an invoice is needed. If you have acquired a loan claim, you need a loan agreement, as well as a payment slip for the transfer of its amount. And so on Resolution 17 AAS dated 06.06.2011 No. 17AP-4034/2011-AK.

Here is a diagram of the correspondence of accounts for writing off a bad debt acquired through the assignment of a claim.

Debt under sanctions for violation of contract terms

Considering the negligence of the counterparty, whose obligations to you have become hopeless, you probably managed to charge him a penalty or fine. And if the debtor acknowledged the fairness of the sanctions himself, for example, by reporting this in response to your claim, or the court did it for him, you were obliged to include contractual sanctions in accounting and tax income. subp. 20 clause 1 art. 265 Tax Code of the Russian Federation.

Writing off a bad debt under sanctions in accounting will look like this.

This may sound naive, but still: the debtor, first of all, needs to strive not to correctly account for bad debt for profit tax purposes, but to ensure that the obligation does not become hopeless in principle. That is, you need to regularly carry out inventory and reconciliation of payments, bother debtors, and not be afraid of the complexities of litigation. For what is the saved income tax compared to the irretrievably lost amount of debt?

Accounts payable, according to the accepted definition, are the obligations of a subject (enterprise, organization, individual), which are caused by unpaid debts to other persons participating in a mutual agreement. If an enterprise has not fulfilled its financial obligations in accordance with concluded agreements, for example, has not transferred money for goods supplied or services and work already provided, then it has a problem.

It must be remembered that the write-off of overdue accounts payable occurs in the manner prescribed by the current legislation of the Russian Federation.

This type of debt can be terminated by fulfilling the obligation to pay the funds or by correctly and correctly writing it off as unclaimed after a certain period, if the other party (creditor) has no claims.

When considering, it is necessary to take into account that all issues related to it apply equally to accounts receivable. The differences are that in the first case, the unfulfilled obligations belong to the enterprise, and in the second, the company itself acts as a creditor.

Types of debt

The following unfulfilled obligations are distinguished as part of the enterprise's accounts payable and receivable:

• to suppliers of goods, products, services, as well as to contractors who performed the work;
• to the organization's personnel;
• before the state budget;
• to non-state extra-budgetary funds (in particular, social insurance and welfare);
• on received loans and borrowings;
• before other (not listed) creditors.

Depending on the type of debt, paperwork and accounting entries are completed. In particular, invoicing.

Accounts receivable may be current or past due. It is understood that in the first case, all obligations assumed to pay funds have their legal force. is considered to be one for which the statute of limitations has already expired. In order to conduct accounting and tax reporting correctly, it is necessary to correctly calculate this period, correctly relying on the current civil legislation.

In the current tax legislation, there is such a thing as bad debts, that is, financial obligations, the fulfillment of which for some reason has become impossible. Such debts need to be closed by writing off. Paragraph 2 of Article 266 specifies situations in which debts are considered unrealistic to collect. These include situations in which:

• obligations have been terminated due to the impossibility of their fulfillment in accordance with Article 416 of the Civil Code of the Russian Federation;
• obligations have been terminated on the basis of an act of a state body in accordance with Article 417 of the Civil Code of the Russian Federation;
• obligations were terminated on the basis of liquidation of the enterprise in accordance with Article 419 of the Civil Code of the Russian Federation;
• the statute of limitations has expired.

Setting the limitation period

Based on the current Civil Code of the Russian Federation, in particular Article 196, the limitation period for overdue debt is set at 3 years. The period is calculated from the moment of expiration of the contract, the terms of which were violated by the debtor. It is generally accepted that it is then that the creditor learns (or should have learned) about the violation of his rights. These provisions are spelled out in paragraph 1 of Article 200 of the Civil Code of the Russian Federation. If the duration of the obligations has not been determined (not specified in the contract), then the limitation period is calculated from the moment when the creditor has the right to demand fulfillment of obligations (when the terms of the contract have been fully fulfilled on his part), in accordance with paragraph 2 of Article 314 of the Civil Code of the Russian Federation .

But it should be remembered that, under the conditions prescribed in Article 203 of the Civil Code of the Russian Federation, the limitation period can be interrupted if one of the parties brings a claim in the prescribed manner, or the debtor acknowledged his debt or took actions confirming the existence of an overdue debt. A list of such actions can be found in the letter of the Federal Tax Service of the Russian Federation for Moscow dated April 17, 2007 N 20-12/036354.

If the limitation period for receivables has been interrupted, then after the interruption it begins again. In this case, the time elapsed before the break is not taken into account and is not included in the new period.

If the statute of limitations has expired, then the debt can be written off.

The procedure for writing off debt in accounting

Based on paragraphs 77 and 78 of the “Regulations on accounting and financial reporting in the Russian Federation”, approved by Order of the Ministry of Finance of Russia dated July 29, 1998 N 34n, overdue debt with an expired statute of limitations must be written off. The procedure for writing off debts that are determined to be unrealistic for collection is also regulated by these paragraphs.

According to paragraph 18 of Article 250 of the Tax Code of the Russian Federation, the organization must include it in its non-operating income. This is done strictly on the last day of the reporting period, when the statute of limitations expires. This provision is recorded in the letter of the Ministry of Finance of the Russian Federation dated January 28, 2013 No. 03-03-06/1/38.

and other non-operating income can be written off in 2 ways:

• using funds from the reserve intended for doubtful debts;
• and if in the period preceding the reporting period, the amounts of these debts were not reserved, for financial results.

It should be borne in mind that losses due to the debtor’s insolvency are not an actual cancellation of the debt, so you need to carefully monitor the execution of the accounting entries.

The write-off itself occurs for each individual obligation. The grounds for write-off are:

• inventory data;
• written justification;
• order (order) of the head of the enterprise.

That is why, before writing off bad accounts payable, it is necessary to conduct an inventory of payments: without it, removing overdue debts from the company’s records is impossible.

Inventory of settlements with debtors and creditors

The obligation of enterprises to conduct an inventory of settlements with debtors and creditors annually before drawing up an accounting report is established by the provisions of Article 12 of the Federal Law “On Accounting” dated November 21, 1996 N 129-FZ. To prevent missing the statute of limitations for a specific contract, an inventory of settlements can be carried out once a quarter.

Inventory consists of checking the ratio of those listed on the accounts of the enterprise related to the debit and credit of the organization with the actual figures. In other words, it is designed to check whether the amounts of real debts correspond to the available data. The following types of calculations fall under inventory:

• with banks;
• with the organization’s personnel;
• budget;
• off-budget funds;
• buyers and customers;
• other debtors and creditors.

The purpose of the audit is to establish the following facts:

1. Do the figures of debit and credit balances according to the calculations of the enterprise’s balance sheet coincide with the balances indicated in the turnover sheets?
2. Identification of debts for which the statute of limitations has already expired.
3. If there were shortages or thefts at the enterprise, then the validity and correctness of registration of debts listed in the accounting department relating to these cases is checked.

Preparation of documents based on inventory results

All results of the inventory are documented in acts. At the moment, unified forms of documents are not required when preparing reports, so the act is drawn up in the form adopted by the organization’s internal regulations for accounting. If the management of the enterprise continues to adhere to the previously established rules, then the inventory report is drawn up as a form in form No. INV-17.

In addition to the inventory act, an accounting certificate is required, on the basis of which the act itself is drawn up. This document is generated in the context of synthetic accounting accounts. That is, it must contain information about existing bad accounts payable: according to which particular agreement a specific debt arose and links to supporting documents (invoices, acceptance certificates for work performed, etc.).

It is also necessary to calculate, indicating the rationale for the organization’s accounting for a specific debt in a specific reporting period. The certificate is drawn up in the form of annex to No. INV-17.

If the organization has not carried out this, it means that the act recording the expiration of the statute of limitations was not drawn up and the manager’s order to write off was not issued - there is a direct violation of the rules and laws on accounting. In such a situation, debts to creditors cannot be considered bad. The company does not have the right to include them in income - neither in accounting nor in tax accounting.

It must be remembered that an order from the management of an enterprise is issued only on the basis of an inventory.

When conducting an inspection, the absence of an act, or an order issued without the results of the inventory, are considered violations, and the enterprise is subject to a fine. The absence of the necessary documents, regardless of the reasons why they were not completed, does not relieve the taxpayer from the obligation to generate his income and process it correctly!

Write-off of accounts payable for the purpose of calculating income tax

Based on paragraph 18 of Article 250 of the Tax Code of the Russian Federation, all amounts of a taxpayer’s accounts payable recognized as non-operating income are subject to write-off due to the expiration of the limitation period or for other reasons. But they do not include debts for paying taxes and fees, fines, penalties, which are not written off and it is impossible to close them by writing them off.

Thus, if the creditors did not present claims to the organization demanding the return of the accounts payable on the balance sheet after the expiration of the limitation period, it is obliged to write off such debts as non-operating income for profit tax purposes. When writing off, the entire amount of bad accounts payable is taken into account, including VAT. The write-off procedure is carried out at a time, as in accounting.

The current Tax Code of the Russian Federation provides for the equation of non-operating expenses, namely bad debts, with losses incurred during the reporting tax period, which is stated in paragraph 2 of Article 265 of the Tax Code of the Russian Federation. If the taxpayer has formed, then the receivables are recognized as the amount of bad debts not covered from the reserve funds. Therefore, when taxing the profit of an enterprise, only bad debts are taken into account as part of non-operating expenses.

According to the rules prescribed in the letter of the Ministry of Finance of the Russian Federation dated January 11, 2006 N 03-03-04/1/475, the expiration date of the limitation period is the date of recognition of expenses on receivables that are impossible to collect and subject to write-off for corporate profit tax purposes.

In order to recognize a debt for which the statute of limitations has expired as uncollectible for the calculation of income tax, it must be documented. Supporting documents may be:

• the agreement under which the overdue debt arose;
• invoice issued for payment;
• invoices or acts of performance of work (provision of services);
• acts of reconciliation of existing debts with debtor enterprises;
• (provided that at the time of write-off it was not repaid);
• order from the head of the enterprise about how a bad debt.

Some nuances of debt write-off in tax reporting

Correct, conscious and competent actions can reduce the amount of your taxes. Whereas ignorance or negligent attitude can only harm the enterprise. When writing off debts for tax purposes, an organization must remember: all acts of reconciliation of existing overdue debts with creditor enterprises, signed before the decision to write off is made, confirms the partner’s recognition of the existence of the debt and interrupts the limitation period. Accordingly, the presence of such acts makes debt write-off impossible.

When preparing tax reporting, you should pay attention to subparagraph 14 of paragraph 1 of Article 265 of the Tax Code of the Russian Federation. It states that tax amounts relate to non-operating expenses for goods, services, etc. supplied, if the overdue debt under these agreements was written off in accordance with paragraph 18 of Article 250 of the Tax Code of the Russian Federation. But at the same time, it is worth considering the following nuance: if at the time of writing off the debts, the VAT amounts related to this debt were previously claimed for tax deduction, then they are not restored and are not considered as a component of income tax expenses.

We must not forget that receivables not written off on time, for which the statute of limitations has expired, are not included in the amount of non-operating income of the enterprise during the reporting period. Consequently, the tax authorities will not be able to establish full payment of income tax. And, as a rule, organizations that file a claim in connection with such a situation lose in arbitration courts.

If the statute of limitations for unfulfilled obligations expires in the current tax period, then the taxpayer is obliged to submit an updated declaration to the tax service and pay additional taxes and penalties. This is due to the provisions prescribed in paragraph 1 of Article 54 of the Tax Code of the Russian Federation. It states that if there are distortions in the calculation of the tax base in previous reporting periods, in the current tax period the tax should be calculated taking into account these distortions. This situation may arise if, for example, the statute of limitations on receivables that were incurred in 2011 expires in 2014. Then, according to these provisions, in 2014 the enterprise is obliged to clarify its declaration.

Write-off of accounts payable that cannot be collected due to the expiration of the statute of limitations must be carried out competently. Such an operation should most likely attract the attention of Federal Tax Service employees when inspecting the enterprise. To avoid additional tax charges, you need to know when to write off the debt and what documents to confirm this action. In this article we will talk about writing off accounts payable with an expired statute of limitations, and consider an example of registration.

Loan debt appears:

• when the company did not pay for the supplier’s goods, did not make deductions to the bank against the debt on borrowed funds, etc.;
• if the company has not delivered to the client products for which an advance payment has already been made.

Statute of limitations

The period allowing the creditor to collect the debt expires:

• Upon completion of the settlement period with the creditor for obligations (if the period was agreed upon in advance).
• From the date when the creditor demanded to repay the debt (for cases where the terms were not agreed upon in advance, or it was decided to pay on the first demand) In such situations, the deadline for repaying the debt will be the last day when the funds could be paid.

The period when the creditor has the right to claim the debt may be interrupted if the debtor takes actions confirming his recognition of the debt. At the end of the break, the time is counted from the beginning, and the time elapsed before it begins is not counted. In any case, the statute of limitations cannot be more than ten years from the date of violation of the right (except for some situations related to countering terrorism).

Inventory of accounts payable

The accountant is allowed to write off the loan debt only after completing the inventory. Debts, if there are several of them, are written off separately. The director of the company must issue an order to carry out inventory work (unified form No. INV-22 or an internal corporate template, fixed by the provisions of the company’s accounting policy).

Debt accounting

The amount of debt that is subject to write-off must be included in the cost structure by the accountant in the exact amount that was reflected in the accounting registers. A write-off entry is made during the period when the period for applying for compensation for the creditor's loss has expired:

Operations when using the OSNO tax regime

If the company pays taxes in accordance with the general tax system, the written off loan debt is classified as non-operating income. The basis for writing off may be the expiration of the period during which debts are collected, or the liquidation of the creditor’s company (or its closure at the request of the Federal Tax Service due to the fact that there is no activity) and the exclusion of an entry about it from the Unified State Register of Legal Entities.

If the write-off is carried out for the specified reasons, the amount is taken into account in non-operating income in the reporting period during which the enterprise of the one to whom the debt was to be paid was excluded from the register.

It happens that money is transferred to the company’s account by mistake. They must be taken into account in the list of outstanding cash receipts. The amount can be included in income only after the expiration of the period for claiming the funds, but provided that the sender did not apply for a refund during the period during which the funds can be demanded back, justifying the error.

It happens that a company received an advance payment for the supply of products, but never delivered it to the client. Then the accounts payable will be revealed. It will be classified as non-operating income and written off when it is no longer possible to collect it. VAT is written off, and the following posting is made:

If in a similar case the advance was paid for transactions for which VAT is calculated at a zero rate, VAT is not required to be calculated and paid.

Procedure for the tax regime of the simplified tax system

A company using a simplified system also classifies written-off debt as non-operating income (this applies to the simplified tax system “Income” and the simplified tax system “Income minus expenses”). It does not matter under what taxation system the debt arose. If the company has not settled with the counterparty, income includes:

• revenue from the sale of products delivered without payment (the written-off debt is not taken into account in costs, since the company did not incur costs to pay for the products);
• written off loan debt (equal in value to the cost of production).

If the organization owes money to customers, the unpaid advance must be taken into account in income once on the day the prepayment is calculated.

Work when combining OSNO and UTII modes

When choosing the UTII mode, writing off accounts payable arising under any circumstances does not affect the calculation of the tax amount. When combining these two modes, accounting for cash receipts, expenses and household expenses. Operations are usually carried out separately. When calculating income tax, written off debt is added to non-operating income only that which appeared during the implementation of activities taxed under OSNO.

If the debt arose for goods that participated in both OSNO and UTII, the amount of non-operating income is subject to accounting in its entirety.

Companies often accumulate artificially created accounts payable. Usually it arises in settlements with suppliers and contractors for material assets documented according to documents, work performed and services rendered.

The fact is that the most common problem in such a situation is the problem of lack of working capital. After all, such debts are not supposed to be repaid, but are processed only according to documents. It turns out to be a vicious circle - constantly growing accounts payable.

As a rule, this is fraught with the fact that the tax authorities will recognize such an “accumulated” creditor as the company’s income and additionally charge income tax on it. Such additional accrual may occur, for example, as part of an on-site inspection.

In accounting, accounts payable continue to be taken into account until the date of their repayment or write-off.

Write-off of accounts payable is necessary in the following cases:

Exclusion of the creditor from the Unified State Register of Legal Entities.

Expiration of the limitation period (the general limitation period is three years).

In the overwhelming majority of cases, companies are in no hurry to write off their debts, extending the statute of limitations, because, as is known, in tax accounting, a written-off “creditor” is included in non-operating income (clause 18 of Article 250 of the Tax Code of the Russian Federation) and increases taxable profit. Such actions do not fundamentally solve the problem, and over time the company’s balance sheet becomes increasingly unattractive to banks and potential suppliers.

Of course, the easiest option to pay off accounts payable is to make a payment to the creditor. But often these creditors have already been liquidated and repayment is possible only after a debt assignment (assignment) has been completed. However, this option is very expensive and practically unsuitable in practice.

Is it possible to get out of such a situation in conditions of shortage of working capital? It turns out that this is possible. You can write off accounts payable without increasing your tax liabilities and at the same time increase the financial attractiveness of the company, that is, replace a dubious type of liability with a more reliable one.

The procedure for writing off accounts payable

The procedure for writing off accounts payable will look like this.

• Step one: Changing creditors to individuals

The founder buys the debts of his company from “friendly” creditors under a debt assignment agreement (assignment). In this case, the assignment agreement may provide for a deferred payment for the new founding creditor. Thus, the founder can pay off with the “friendly” creditor for as long as he likes. Ultimately, the company will have an obligation to pay the debt not to the creditors, but to the founder.

Important!
To transfer the rights of a creditor to another person, the consent of the debtor is not required, unless otherwise provided by law or agreement (clause 2 of Article 382 of the Civil Code of the Russian Federation).

• Step two: Increasing the authorized capital

At the second stage, the founder decides to increase the authorized capital through an additional contribution or to contribute to the property of his company. Such a decision will lead to the founder’s obligation to pay an additional contribution. As a result, counterclaims are formed, which are closed by offset when signing an act of offset of mutual claims.

Thus, the company will be able to “close” accounts payable and at the same time increase its authorized capital or additional capital, increasing its attractiveness to banks and suppliers when receiving loans or deferred payment when paying for goods, work, and services. And all this without increasing your tax liability.

However, it is worth keeping in mind that this method carries potential tax risks and consequences for the founder in terms of personal income tax. The fact is that at the time of the offset procedure, the founder receives taxable income from the difference between the additional contribution and the cost of acquiring the debt. As a rule, this difference is zero and, accordingly, no personal income tax arises. To confirm your lack of income, you must have supporting documents. This could be, for example, a cash receipt order from a “friendly” creditor.

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