What can be cooked from squid: quick and tasty

In principle, under the concept of "cession" they hide the transfer of the right to something. The term itself implies the transfer of rights to claim a debt. For example, the lender may give up his right to receive the money paid by the borrower on the loan. Cession is also called the transfer of rights to bonds and other securities.

The subject and object of the contract of assignment of the right of claim - cession

The difference between the assignment and the usual assignment of the right to claim is that when signing the contract for the assignment of the right of claim - assignment, only the rights of the assignor are transferred, and when signing the transfer contract, not only given right, but also the obligations that are associated with the implementation of this right. For example, an assignment is not a transfer of the possibility of renting any premises, since upon concluding this agreement, not only the right to "occupy" this area will be transferred, but also the obligation to pay rent for it, in the agreed periods. On the other hand, the transfer of rights, for example, on preferred shares, will be a cession procedure, because after receiving the right to dividends, the assignee does not take any responsibility on himself, since this is his desire to receive these dividends or refuse them.

The assignor's rights

Borrower and cession

The assignment of the right of claim is the transfer of a debt obligation or the transfer of the creditor's powers from one person to another. In other words, initially in such a relationship there are two subjects - the creditor and the debtor, who entered into an agreement with each other. Due to some circumstances, the creditor cannot wait until the debtor repays the debt. In such cases, you can transfer your rights of claim to a third party. In addition, the debtor can also change.

The essence of legal relations

Assignment (assignment), as a rule, is formalized in the form of a written agreement. It is possible to delegate authority orally only in exceptional cases. Why, in fact, may the assignment of the right of claim be necessary? For example, a lender has transferred a certain amount of money to a borrower. Under the terms of the agreement, he must return this amount, say, after 2 years. However, the lender needed these funds ahead of schedule. He cannot claim them until the time stipulated in the agreement has expired, so in such cases he has the opportunity to transfer his powers to demand funds to another person. Of course, the third party has its own benefits in this case: it plans to either pay a smaller amount to the creditor, or from the debtor to additionally collect interest, disorder, fines, etc.

It may be the other way around. The debtor may change in legal relations. True, this can only happen if the creditor agrees to this.

It should be noted that when changing a lender, the borrower is not asked for permission, but it is worth informing about the change of "player". But there is one exception. If the debt is inextricably linked purely with the personality of the creditor, then it is impossible to assign the right of claim without the permission of the debtor. This applies to alimony, compensation for damage to health, life, property, etc.

Form of contract

The assignment of the right to claim a debt based on a transaction that is made in a simple written or notarized form must also be made in the appropriate form. However, many make the mistake of concluding an act or protocol instead of a treaty. If the case comes to court, then such a document can easily be annulled. There are also cases when the assignment of a claim is carried out in relation to a transaction that is subject to state registration, then it will also need to be registered.

At the same time, the usual writing form, which is used most often, also has a lot of "pitfalls". According to the assignment agreement, it is not necessary to obtain permission to change the lender, however, it is necessary to notify the borrower about this. If the debtor changes, then the assignor must not only agree to this, but also check the solvency of the new participant in the transaction. And the borrower, in turn, has the right to require the assignee (new lender) to provide documents related to the obligations transferred to him.

Assignment agreement of the right of claim

Such an agreement belongs to the category of compensated, consensual and bilateral transactions. The essence of the conclusion of such an agreement: the creditor's refusal of his right in relation to the debtor to demand the fulfillment of certain obligations and the transfer of such powers to another person. The legal status of the parties to such an agreement can be any. The subject of the assignment is a binding right or a right of claim. Due to the fact that the law does not regulate the price of such an agreement, the parties determine the amount of payment for the transaction independently.

It should be noted that there are many nuances in the contract of assignment of the right of claim. A sample of this agreement might look something like this:

1. First, the date, the number of the agreement, the parties to the agreement are indicated.
2. It is very important to identify the subject of the transaction. The assignment of rights can be carried out, for example, in connection with a loan or credit agreement. That is, a certain amount of money that the debtor must pay. The subject of the contract may also be the transfer of housing from the developer on the basis of a contract on equity participation.
3. The following are the rights and obligations of the participants.
4. Another prerequisite is the price of the assignment agreement. Most often, such a transaction is onerous (although it may be free of charge, this is not prohibited). However, usually the original lender receives from the entity that acquires the right of claim, an amount that corresponds to the amount of the debt. By agreement of the parties, its size can be reduced. Usually, the reduced amount serves as a kind of compensation for the inconvenience of the assignee.
5. Next comes the "Liability of the Parties" section.
6. The document ends with the final provisions, details of the subjects, as well as their signatures.

Debtor replacement

If the assignment of the right of claim is made, where the debtor changes, then the parties to the contract will, of course, be the original borrower and the new debtor. Both individuals and legal entities can act as a borrower (there are no restrictions here). The new member will have to take over all the responsibilities for paying the arrears. Remember: if the creditor doubts your solvency, then he may not agree to replace the debtor. If the assignor permits this, then the new borrower will need to reconcile the numbers on the debt. The lender can be, for example, a financial institution or an individual.

If the debtor changes, how then to conclude a contract of assignment of the right of claim? We can give the following example of such an agreement. We indicate:

1. Date and number of the document, parties to the transaction.
2. Subject matter of the agreement (for example, debt incurred).
3. The term for which the new borrower is obliged to fulfill the obligation.
4. Debt amount. Debt can be delegated in full or in part. The contract can also provide that the new debtor must pay a penalty, penalty or other fines. In addition, the transferred debt may generally consist of only one amount of the fine.

All other sections of the agreement will not be changed. The future debtor will also need to hand over the reconciliation acts, additional agreements, calculations and other documentation.

What does a lender need to remember?

Whatever one may say, and when the debtor changes, the assignee is always at risk. Therefore, when you draw up a contract of assignment of rights of claim, you need to be very prudent. The debtor should be asked for the following documents of title: an order on his appointment (for legal entities), a sample of his signature, in some cases it will be useful to request a permit or a license. If you are convinced that the new participant can be considered in good faith, then you can agree to transfer the debt. You can grant permission in a separate letter.

Assignment to an apartment

People who bought an apartment at the construction stage, sometimes for various reasons, are forced to sell it even before the facility is put into operation. Is it possible in this case to assign the rights of claim to the apartment? Of course. But it should be noted that this can be done only during the construction period of the facility. If there is already an act of acceptance and transfer, then the assignment agreement cannot be concluded by law. A change in ownership in such a situation will be concluded through a purchase and sale agreement. However, if the rights of the shareholder have not yet been realized, then he may well cede his right of claim.

How to close a deal?

Such an agreement, of course, is in writing. However, developers often indicate in the contract prohibiting the conclusion of the assignment document or establish that for this it is necessary to obtain their consent. If there is no such norm, then you can conclude an agreement on the assignment of the rights to claim the apartment.

Since the document on equity participation requires state registration, the agreement on the assignment of rights is also subject to such a procedure. If the transaction between the developer and the assignor is not registered, then the former may well refuse to transfer the finished object to the assignee.

After state registration, the new shareholder fully assumes the same obligations and rights to the developer that the former copyright holder had. It also carries the same risks as the rest of the co-investors.

Organizational moments

If you decide to transfer your share or you want to become a new creditor, then, of course, you must first draw up an agreement. At the stage of settlements, the parties use the mechanism of bank cells. After the papers are issued to the assignee, the seller will be able to collect the money.

It is necessary to notify the debtor (that is, the developer) that there has been an assignment of the rights of claim to the apartment. All documents are also certified by a seal.

Assignment of debt

Most often, the subject of the agreement is the loan debt. As already mentioned, a bank or other financial institution can be a party to such an agreement. In addition, if the creditor changes, the debtor can simply be informed about this, but there is no need to ask his permission. If he is not informed about this, the borrower has the right not to pay a fee under such an agreement.

An agreement on the assignment of rights to claim a debt is a transaction that is concluded between credit institutions, according to which one bank transfers its powers to claim a certain amount of money to another.

Important points

When drawing up an assignment agreement, financial institutions also draw up an acceptance certificate. The new creditor does not have the right to change or indicate in the document his terms of debt repayment. This means that the new lender cannot change even the most insignificant requirements of the transaction. If he nevertheless applies such innovations, then the agreement can be declared invalid.

If the bank intends to transfer the interest on the loan, then it is necessary to make the appropriate instructions in the agreement. It is possible to delegate authority to request the repayment of the loan by the borrower at any stage of the loan agreement.

How to draw up a debt assignment agreement?

When transferring the rights of claim for a loan, written contract... So what is the assignment of debt claims? A sample of such a document can be given as follows:

1. At the beginning of the document, the date and number of the document are affixed.
2. The parties to the agreement are indicated.
3. The rights and obligations of the participants are described.
4. The next section is the amount of debt. The payment procedure is also explained here.
5. Responsibility of the parties.
6. Final provisions.
7. Details and signatures of the assignor and the assignee.

The prevalence of transfer of authority

In Russia, the assignment of the right of claim is still used quite rarely. This practice has been widely used in the United States for a long time. For example, many Americans are often eyeing real estate with an outstanding loan. However, the Russians are still rather vague about all the subtleties and benefits of such an agreement. And completely in vain. An assignment can very often be an excellent way out of a situation.

You also need to understand that third parties also have their own advantages. For example, a debtor who is unable to pay off a mortgage debt has the opportunity to purchase this housing cheaper. However, there is also a risk that he will have to face inconvenient conditions for repaying the loan (repayment of fines, high rates). At the same time, it is worth noting that the accounting for the assignment of the right of claim has not been officially clarified.

In the event that a person becomes an assignee, one can expect to receive a loan in full. But at the same time, there is a possibility of being left with nothing at all.

Another problem when concluding such transactions is that Russian legislation regulates this issue too superficially. As a result, various legal difficulties may be encountered.

Outcomes

We have figured out with you what the assignment of the right of claim means. It is simply unrealistic to pick up a sample for all cases. However, we have fully highlighted the regulatory provisions that each deal on the assignment of powers should contain. except mandatory conditions, the parties may include additional ones that do not contradict the legislation.

Company information KSK GROUP

KSK group traces its history back to 1994. From the moment of its foundation to the present day, the company has been one of the leaders in the market of consulting services in the field of audit, tax, law, valuation and management consulting. Over 20 years of work, more than 2000 projects have been implemented for the largest Russian companies.

KSK group offers a comprehensive and practical solution to the most pressing problems facing financial and CEOs companies and business owners. An individual approach, a deep understanding of the needs and goals of clients, combined with practical knowledge, allow us to solve these problems as efficiently as possible.

The KSK group team is a team of more than 350 specialists with unique experience in implementing projects for both medium and large Russian corporations.

Currently KSK Group offers a full range of services and solutions for business:

• audit according to Russian and international standards;
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• solutions to attract funding;
• marketing solutions and business strategy development;
• management and personnel consulting;
• assessment and examination;
• support of capital transactions;
• Due-diligence.

From January 1, 2015, the accounting of losses from the assignment of the right to claim a debt (before and after the due date) for the formation of the tax base for income tax is carried out according to the new rules (). In addition, the considered amount of loss on a controlled transaction now depends on the market price of the assigned claim, determined in accordance with the provisions of Section V.1 of the Tax Code of the Russian Federation (). Let's consider the essence and features of the changes.

Assignment of the right to claim in civil law

The right (claim) belonging to the obligee on the basis of the obligation can be transferred by him to another person under the transaction (assignment of the claim (cession). As a result of the transaction on assignment of the claim, the obligee changes in the obligation. The obligation itself does not terminate, its subject composition changes. , you can often find such types of agreements as the assignment of rights to lease real estate, the rights of a shareholder under an agreement of equity participation in construction, the assignment of rights of claim under contracts for the performance of work (provision of services), the supply of goods, etc.

For the transfer of the rights of the creditor to another person, the consent of the debtor is not required, but the debtor must receive evidence of this fact in writing (notification), which is valid for him regardless of whether it was sent by the original or the new creditor. Nuance: the debtor has the right not to fulfill the obligation to the new creditor until he is provided with evidence of the transfer of rights to this creditor (,). The lack of notification of the debtor about the assignment of the right of claim does not affect the validity of the transfer of rights, does not entail the invalidity of the assignment agreement, but only affects the risk of adverse consequences for the new creditor if the debtor fulfills the obligation to the original creditor. Indeed, until the notification is received by him, the debtor will continue to fulfill obligations to the previous creditor, having every right to do so: in this case, the fulfillment of the obligation to the original creditor is recognized as the fulfillment of the proper creditor ().

As for the new creditor (assignee), with whom an agreement on the assignment of the right of claim (assignment) has been concluded, he receives all the rights under the transaction from the original creditor (assignor), and he, in turn, is responsible for the invalidity of the claim. However, the original creditor is not responsible for the fulfillment of the claim by the debtor (,).

The assignment of the right of claim implies that the original creditor must transfer to the new creditor all documents that confirm the validity of the claim for a specific obligation. Such documents can be the main contract and annexes to it, estimates, acts of services rendered (work performed), commodity and administrative documentation, etc. When concluding an agreement on the assignment of the right of claim between the assignor and the assignee, it is important to draw up an act of acceptance and transfer of documentation. The originals of the above documents are subject to transfer, the act is drawn up in any form, certified by the signatures of the parties who have entered into a contract of assignment of rights.

It is not out of place for organizations that conclude transactions for the assignment of rights of claim to take care of the execution of all documents necessary for the approval of the transaction (for example, by the decision of the general meeting, if this transaction is large for the company), prepare an official note justifying the price of the transaction for the assignment of the right of claim, indicate the reasons for for whom this operation is necessary (for example, the inability to obtain accounts receivable from the debtor, high costs and / or additional costs for debt collection).

• rights that are inextricably linked with the identity of the creditor. An example of such a situation are claims for alimony and compensation for harm caused to life or health;
• without the consent of the debtor, the assignment of a claim under an obligation in which the identity of the creditor is essential for the debtor is not allowed. In particular, this applies to the requirement under a consumer lending agreement, under a joint venture agreement during its validity period.

The question of the materiality of the importance of the personality of the creditor for the debtor arbitrage practice interprets, taking into account the specific relationship of the parties in the obligation (for example, the position of the arbitrators).

Loss from assignment of the right to claim a debt after maturity

The loss received by the assignor company in the assignment of the debt claim to a third party after the due date stipulated by the agreement on the sale of goods (works, services) can be included in expenses when calculating the tax base for income tax at a time in full ().

Previously, a loss on a transaction was recognized in two stages: 50% of the amount - on the date of assignment of the right of claim, and the rest - after 45 calendar days from the date of assignment of the right of claim (clause 2 of article 279 of the Tax Code of the Russian Federation in the previous edition).

If the contract or its annexes provide for a schedule of obligatory payments, the assigned debt is likely to be incompletely overdue, and upon a "sale", only a part of them will be due for payment. In this case, the amount of loss from the assignment of overdue and non-overdue parts will be determined differently (different provisions should be applied) (). For such cases, it is advisable to indicate the price of the assignment of each of these parts in the assignment agreement. This will allow the company to correctly determine the income and, therefore, the tax base from the assignment of the right of claim in relation to each of the parts (,).

Assignment of the right to claim a debt as a controlled transaction

If the transaction on the assignment of the right of claim after the due date of payment is recognized as controlled, the price of such a transaction is determined taking into account the provisions (). That is, the company will be able to include the loss on a controlled transaction in expenses, but the amount of loss taken into account will depend on the market price of the assigned claim, determined in accordance with the provisions on transfer pricing. Let us explain what this means.

The conditions for recognizing transactions as controlled are established in: a transaction is recognized as controlled if it is concluded between related parties, taking into account the specifics established by this article. Other transactions, which are specified in Art. The criteria for the interdependence of the parties to the transactions are determined on the basis of the provisions,.

Tax authorities check controlled transactions using the following methods ():

• method of comparable market prices;
• subsequent sale price method;
• costly method;
• method of comparable profitability;
• method of distribution of profits.

The method of comparable market prices is a priority for determining the conformity of prices used in transactions with market prices (unless otherwise provided, which establishes the priority of the method for controlling the price of subsequent sale for goods).

The use of other methods is allowed if the application of the method of comparable market prices is impossible: there are no comparable transactions or this method does not allow to reasonably draw a conclusion about the correspondence or inconsistency of prices used in transactions with market prices.

That is, for the purposes of tax control of prices in transactions between related parties, the method is used that, taking into account the actual circumstances and conditions of the controlled transaction, allows the most reasonable conclusion about the conformity or inconsistency of the price applied in the transaction with market prices.

Consequently, if the transaction for the exercise of the right to claim after maturity is recognized as controlled, in order to avoid possible negative tax consequences, when determining its price for tax purposes, the organization should be guided by the above methods.

In addition, it should be borne in mind that the provisions do not establish and do not disclose a specific procedure and specifics for determining the correspondence of the maximum interest rates on debt obligations to their market values. Therefore, the choice of comparability criteria that should be guided in such cases can be difficult. Obviously, to determine the comparability of commercial and (or) financial terms of transactions should be applied general rules(,). For example, when determining the comparability of the terms of a loan (credit) agreement, it is necessary to take into account the term, currency of the debt obligation and other conditions that affect the value of the interest rate ().

The financial result from the transaction on the assignment of the right of claim will have to be compared with the cost of use in cash on the market. The amount (amount) of a debt obligation, the rate at which can be accepted as a market rate, must correspond to the amount of loss from the assignment of the right of claim, the currency of the assignment agreement and the borrowing period equal to the period from the date of the assignment to the date of payment under the agreement, the right of claim under which is assigned. Other conditions that affect the value of the interest rate under the relevant agreement and can be taken into account in this situation: credit history and solvency of the recipient of a loan (loan), security of obligations with a surety or a bank guarantee, etc.

Nevertheless, if the organization chooses the specified standardization procedure, we recommend that the conditions of comparability be determined and approved in the company's accounting policy.

The provisions of the Tax Code of the Russian Federation also do not clarify the issue of determining the marginal interest rate in the absence of comparable obligations. At the same time, the possibility practical application other methods specified in the definition of the market interest rate on the alleged debt obligation is questionable.

Note that rationing of losses based on the rate confirmed in accordance with the methods established in Section V.1 of the Tax Code of the Russian Federation may also be less profitable for organizations. Indeed, in business practice, operations are widespread, for example, for the issuance of loans between interdependent persons (main (parent) and subsidiary business companies), any of which can act as both a borrower and a lender. And such loans are issued, as a rule, at preferential (reduced) interest rates or, more often, without interest.

Loss from the assignment of the right to claim a debt before the due date

Previously, when the assignor cessions the right to claim the debt to a third party before the due date stipulated by the agreement on the sale of goods (works, services), the amount of loss taken into account for tax purposes could not exceed the amount of interest that would have been paid (taking into account claims) on the debt obligation equal to the income from the assignment of the right of claim. Interest is calculated for the period from the date of assignment to the date of payment provided for by the contract for the sale of goods (works, services) (clause 1 of article 279 of the Tax Code of the Russian Federation in the previous edition).

Since 2015, the loss from the assignment of the right to claim the debt before the due date is still recognized as normalized. However, the order of valuation has changed significantly ().

Thus, the amount of loss that the company has the right to include in expenses when calculating the tax base for income tax cannot exceed the amount of interest that the original creditor would have paid on the promissory note equal to the income from the assignment for the period from the date of the assignment to the date of payment stipulated an agreement for the sale of goods (works, services), but the amount of the loss must be determined by one of the following methods:

• based on the maximum value of the interest rate established for the corresponding type of currency ();
• based on the interest rate confirmed in accordance with the methods established in Section V.1 of the Tax Code of the Russian Federation, that is, taking into account the specifics provided for controlled transactions between related parties.

The chosen method for determining the loss should be fixed in the accounting policy of the company.

At the same time, the Tax Code of the Russian Federation establishes that when the right to claim a debt is assigned before the due date stipulated by the contract, if the assignment transaction is recognized as controlled, the actual price of such a transaction is recognized as market price, taking into account the provisions of clause 1 of Art. 279 of the Tax Code of the Russian Federation ().

Determining the maximum amount of loss based on the maximum value of the interest rate (), of course, is easier. In this case, the calculation is based on the value of the Bank of Russia refinancing rate in effect at the time of the exercise of the right to claim debt.

Changing the size of the so-called key rate, the Bank of Russia left unchanged the refinancing rate at 8.25% (established from September 14, 2012). Banks that still provide business lending set loan rates at 18-22%. Consequently, the tax losses of the business will additionally increase, because when calculating income tax, interest on debt obligations can be attributed to costs only within the maximum refinancing rate of the Bank of Russia.

EXAMPLE

On June 15, 2015 (20 days before the due date) the Company LLC ceded the right to claim a debt in the amount of RUB 1,200,000. for 1,100,000 rubles. Thus, a loss of 100,000 rubles was obtained.

The maximum value of the interest rate at the time of assignment of the right of claim is 180% of the refinancing rate of the Central Bank of the Russian Federation (). The refinancing rate in effect at the time of the assignment is 8.25%. The marginal interest rate, based on which the organization would pay the amount of interest on the debt in rubles, is equal to: 8.25% x 1.8 = 14.85%.

The maximum amount of loss that can be included in expenses, thus, will be: RUB 1,100,000 x 14.85% x 20 days / 365 days. = RUB 8951

The remainder of the loss in the amount: RUB 100,000 - 8951 rubles. = RUB 91,049 the organization is not entitled to take into account in expenses for tax purposes.

Since in the accounting of the organization the loss received from the assignment of the right of claim is taken into account in full when forming the financial result, a permanent difference is formed, leading to the emergence of a permanent tax liability (PNO) (clauses 4, 7 of PBU 18/02 "Accounting for calculations of income tax ", approved).

DEBIT 76 CREDIT 91.1
- 1,100,000 rubles. - the income from the assignment of the right of claim is reflected (the basis is the agreement (agreement) on the assignment of the right of claim, the act of acceptance and transfer of documentation, accounting statement);

DEBIT 91.2 CREDIT 62
- 1,200,000 rubles. - accounts receivable written off (accounting statement);

DEBIT 99.1 CREDIT 91.9
- 100,000 rubles. - reflected the financial result (loss) from the assignment of the right of claim (accounting statement);

DEBIT 99.2 CREDIT 68.2
- 18,209.80 rubles. - reflected PNO ((100,000 rubles - 8951 rubles) x 20%), accounting statement (calculation).

If the company decides that the maximum amount of loss will be calculated using the interest rate, confirmed in accordance with the methods specified in Section V.1 of the Tax Code of the Russian Federation, this will be more difficult and will require additional labor costs. Let's look at an example.

EXAMPLE

Based on the data and conditions in the previous example, assume that the interest rate that the entity has calculated using the comparable market price method for its own debt transactions with non-related parties is (notionally) 9%. The assumption is based on the accepted pricing procedure in the economic relations of interdependent persons and the dynamics of changes in the refinancing rate set by the Bank of Russia.

Thus, the maximum amount of loss that LLC "Company" can include in expenses will be: RUB 1,100,000 x 9% x 20 days / 365 days. = RUB 5425 (calculated value rounded to the nearest whole number).

As you can see, in this case, the amount of loss that the organization has the right to take into account in expenses for tax purposes is lower than the amount of the loss, which was calculated by it based on the maximum value of the interest rate established.

Based on the primary documents on the assignment of the right to claim a debt and accounting certificates (calculations), the following entries were made in the accounting of LLC "Company" in June 2015:

DEBIT 76 CREDIT 91.1
- 1,100,000 rubles. - reflected income from the assignment of the right of claim;

DEBIT 91.2 CREDIT 62
- 1,200,000 rubles. - accounts receivable written off;

DEBIT 99.1 CREDIT 91.9
- 100,000 rubles. - reflected the financial result (loss) from the assignment of the right of claim;

DEBIT 99.2 CREDIT 68.2
- 18 915 rubles. - PNR is reflected ((100,000 - 5425) x 20%) = 18,915 rubles, accounting statement (calculation).

As practice shows, contracts of assignment (assignment) of the right of claim often arouse increased interest of the regulatory authorities: the positions of the regulatory authorities and arbitrators do not coincide with respect to determining the date of assignment of the right of claim (); the ability to recognize as an expense the amount of debt acquired under an assignment agreement (

Against the background of the existing disagreements, the amendments made are certainly beneficial for companies: in addition to converging and simplifying tax and accounting, they allow organizations to more quickly recognize expenses in the form of a loss in the formation of the tax base for income tax, which reduces the amount of tax payable.

Alexey Timakov,leading legal adviser of KSK group,

Due to certain circumstances, the debt obligation or the creditor's powers can be transferred to a third party. Such a relationship between the borrower and the debtor is called the assignment of the right to claim the debt.

Assignment of the right to claim- this is the transfer of a debt obligation or the transfer of powers of the creditor from one person to another. In such a relationship, there are two subjects - the creditor and the debtor, who have entered into an agreement with each other. Due to some circumstances, the creditor cannot wait until the debtor repays the debt. It is in such cases that you can transfer your rights of claim to a third party. The debtor can also change.

The contract for the assignment of the right to claim a debt (cession) is concluded in writing. The reason for its registration may be the desire of the creditor to return the funds earlier than the agreed period. A third party may have the benefit of receiving more high percentage subsequently from the debtor or the payment of a smaller amount of the debt to the creditor.

Who is the participant?

The following parties are participants in the cession:

• Debtor (a person who has obligations to pay a debt).
• Assignee (reappointed holder of debt claims).
• Assignor (the entity that transfers rights to the assignee).

Types of cession

Depending on the form of ownership and the status of the parties to the agreement, they can be divided into several types, namely:

1. Between legal entities. The most common reason is the restructuring of a company or other legal entity. In fact, only the counterparty changes, that is, the name of the debtor entity. In this case, the preparation of the documentation is carried out officially with its certification with the seals of both participants in the cession.
2. Between individuals. In this case, the document does not require certification from a notary. It is quite enough to put personal signatures, as well as indicate passport information, the amount of the debt, the term and method of its repayment. The reasons for its conclusion are varied: from obtaining a loan to the division of property in the event of a divorce.
3. Between an individual and a legal entity. In cases where, for any reason, the head of the enterprise assumes obligations for the unpaid liabilities of the enterprise, the debt in full and on the same conditions is considered to be completely transferred to the new payer. Registration is carried out with certification with a seal and indication of the data of an individual according to a passport.
4. Three-way assignment. A feature of the conclusion is an additional guarantee that the debtor is notified of the change of the creditor. That is, the assignee receives guarantees directly from the payer. In the two-sided document, only information about the change of the lender is indicated.

It can be classified by type in the following order:

1. Free and paid assignment. The sale of obligations by the assignor for a specific amount is of a reimbursable type. A collection company may be involved in resolving this situation. In this case, all conditions and the object remain unchanged. The gratuitous type is an agreement that does not provide for payment for the assignment of a debt obligation.
2. Unpaid and paid transfer of debt. The difference between the two types of change of debtor is the payment of a certain amount (exceeding the amount of the debt) or in the absence of such.
3. Assignment of claims according to the writ of execution. The assignment can be transferred to a third party free of charge or for a fee. As the main document in arbitration court there is a valid agreement on the assignment of the right of debt.

Debt transfer

According to the Civil Code of the Russian Federation, debts for any obligations can be assigned to a new creditor, with the exception of cases provided for by law. They cannot be transferred according to the right of claim if they are inextricably linked with the personality of the creditor (the right to alimony, compensation for moral damage).

Transfer of debt by assignment usually does not require prior consent from the debtor. However, in some cases, the assignment of rights is possible only with the consent of the obliged person, in particular:

• if it is established by an agreement between the creditor and the debtor that the transfer of the debt is possible only with the consent of the latter;
• if the regulatory enactments provide that the transfer of the right of claim, for example, only with the consent of the debtor;
• if the fulfillment of the obligation is closely related to the personality of the creditor.

The rights are transferred to the new creditor to the same extent as they belonged to the previous creditor. In addition, along with the main debt, the obligations securing it are transferred (forfeit, etc.). Other terms of the agreement, the debt under which is transferred to the assignee, also remain unchanged.

Debt can be transferred even when there is already a court decision on debt collection in favor of the original creditor. After the cession agreement is drawn up, you will need to go to court, which will issue a ruling to replace the party to the case. Further, with this definition and the assignment agreement, you need to contact the bailiff service.

Assignment agreement of the right of claim

The legal status of the parties to such an agreement can be any. The subject of the assignment is a binding right or a right of claim. The law does not regulate the price of such an agreement; the parties determine the amount of payment for the transaction independently.

A sample of this agreement may look something like this:

• The date, agreement number, parties are indicated.
• It is important to identify the subject of the transaction. The assignment of rights can be carried out, for example, in connection with a loan or credit. That is, a certain amount of money that the debtor must pay. The subject of the agreement may also be the transfer of housing from the developer on the basis of a contract on equity participation.
• Further, the rights and obligations of the participants are indicated.
• A prerequisite is the price. Most often, such a deal is onerous. Typically, the original lender receives from the entity that acquires the right of claim, an amount that corresponds to the amount of the debt. By agreement of the parties, its size can be reduced. Usually, the reduced amount serves as a kind of compensation for the inconvenience of the assignee.
• Next, there is the section “Responsibilities of the parties”.
• The document ends with the final provisions, details of the subjects, as well as their signatures.

Design nuances

The package of documents for registration is individual in each case. The main confirmation of the entry into force of the assignment agreement is a written contract concluded between the assignor and the debtor.

Without fail, the document indicates the amount of the debt, the initial contract, which confirms the occurrence of the debt obligation.

The contract can be declared null and void by the court. Criteria for making this decision:

• The belonging of the obligation is attributed to personal relationships (alimony, compensation for losses to a private person).
• The right in question is not supported by an appropriate documentary base.
• The real estate agreement is not registered with a government agency.
• The basis, taken as a canvas, does not imply the transfer of the right of assignment to third parties.
• This agreement does not specify the relationship between the first creditor and the debtor.
• Payment was not made by the assignee under a paid contract.
• The rights of claims for the loan are redirected to a person who does not have the authority and capabilities of the credit company.

In the event of claims arising for one of the specified reasons and substantiated confirmation, the arbitration shall be submitted statement of claim on the recognition of the cession agreement as having no legal force.

According to the current legislation, the claim can be satisfied in full or in a certain part of it.

As an illustrative example of recognizing an assignment agreement as null and void, we can consider the following event:

CJSC "N" filed a statement of claim in arbitration against OJSC "M" and LLC "D" on the recognition of the cession agreement null and void, since the terms of the agreement do not comply with the Civil Code of the Russian Federation (Art. 382).

The presented requirements were satisfied in full.

This decision is due to the fact that under the terms of the contract for the assignment of the right of debt, OJSC “M” transfers, and LLC “D” accepts the requirements under the supply contract to CJSC “N”. According to Art. 168 of the Civil Code of the Russian Federation, the assignor "M" did not have the rights to carry out the assignment in relation to the subject "D" at the time of the conclusion of the contract. Consequently, in violation of Articles and 168 of the Civil Code, the transaction was recognized as illegal due to its nullity.

The main cases of cession occurrence

Housing purchased by mortgage often becomes an object of sale, even if it is not property and is in a bank pledge. Of course, the financial institution must be notified of the change of the borrower under the real estate assignment agreement. After checking the solvency of the new debtor and the written consent of the bank, the amount of the remaining debt is indicated.

In insurance, an assignment agreement involves the transfer of risk to another firm, which acts as a new creditor. When cars are sold under a power of attorney in car insurance, the right of the insured to compensate for the loss may pass to the insurer. However, this practice is discouraged by many firms due to frequent cases of fraud.

Quite often, the practice of transferring the right to claim a debt to another creditor in the economic sphere under a supply agreement. In the situation under consideration, factoring is used (attracting a wealthy intermediary). Consequently, claims for payment of receivables to the buyer are presented by this financial institution, which is most often the bank. The financial benefit the borrower receives from the interest withheld from the debtor. The factoring system allows you to control the timing of payment of debts, having previously performed monitoring and reconciliation of the primary documentation confirming the acceptance of the goods.

Under a contract agreement an assignment agreement is possible in the case of the written approval of the contractor to transfer the right of certain obligations to another person. Separately, it should be noted that in this case, both parties have the right to demand the fulfillment of the clauses of the agreement (payment or provision of certain services in accordance with the contract or agreement).

In credit banking operations the assignment agreement is drawn up in case of violation of the terms of lending by the borrower. If the banking institution therefore terminates the current contract with the collection of the full amount of the debt, the collection company acts as the assignee, which applies its own methods of influencing the debtors. Such a scheme is subject to discussion and doubt, since in order to interact with collectors, the lender must have all the relevant documents in the field of lending and banking. At the same time, a financial institution has no right to disclose confidential information about its clients. In order to avoid misunderstandings, in such cases, you should scrupulously study all the clauses and sections of the contract being concluded.

A bankrupt company can make a sale of debt, which will allow to reduce the debt in a short time. But, if the company is not officially declared bankrupt, the tax service can invalidate the transaction. To confirm your own incapacity, a memo is drawn up with a justification for the price of the right to claim.

Registration in the state register

The assignment of the right to claim a debt related to real estate requires mandatory registration in the State Register. The legitimacy of the agreement comes into force from the moment of passing the state registration. Failure to comply with this rule may result in the agreement being declared null and void.

The procedure for correct registration is to provide notarized documents to the FRS. This list includes an equity participation agreement, an assignment agreement, and other related agreements.

The developer or a person equivalent to him shall also submit the following information:

• the constituent decree and its additions or explanations;
• documentation confirming the authority of the main entity.

Correctly drawn up and submitted on time documentation is under consideration by the state body within a calendar month.

Useful information

When signing, special attention should be paid to the following criteria:

• The reality of the subject, confirmed by objective information and primary documents.
• The obligatory presence of a link to the original source, which gives the right to formalize the assignment of debt.
• Consent of the newly minted lender or borrower. It can be confirmed in the main contract with a signature or seal, and is also provided in a cover letter.

An assignment agreement, drawn up inappropriately or in violation of the requirements, may lead to its cancellation or an undesirable result.

When concluding an agreement on the assignment of the right to claim a debt, the new creditor needs to transfer the primary documents confirming this debt. Otherwise, it will be impossible to collect it from the debtor (Resolution of the Federal Antimonopoly Service Ural district dated September 10, 2013 No. F09-2213 / 12). There are other nuances ...

The right to claim can be assigned

The right to claim a debt belonging to the creditor can be transferred on the basis of an agreement or on the basis of a law (Article 382 of the Civil Code of the Russian Federation).
If the transfer of rights to a new creditor occurs on the basis of an agreement, then such an agreement on the transfer of the creditor's rights is called, or cession. In this case, the creditor who assigns his claim to the debtor is called the assignor, and the creditor who received such a right is called the assignee.

In other words, in accordance with civil law, the assignment of the right of claim (cession) is understood as an agreement to replace the previous creditor, who is retiring from the obligation, to another person, to whom all the rights of the previous creditor are transferred.
In this case, the new creditor does not conclude a new independent contract with the debtor, but enters into an already concluded transaction as a party and can only demand from the debtor to fulfill the terms of the transaction that the previous creditor entered into.

For example, under the contract, the supplier shipped agricultural products to the buyer. Having fulfilled its obligations, it has the right to demand payment from the other party. In accordance with civil law, such a debt is a property right belonging to the supplier as a creditor, which can be assigned to another person.

By concluding an assignment agreement, the seller assigns the right to demand payment of the receivable from the buyer to a third party (new creditor).

The contract specifies the transferred claims

The assignment agreement specifies the specific requirements arising from the concluded transaction, the rights under which are transferred, with a mandatory reference to its details. An agreement that does not contain these conditions is considered not concluded, and a new creditor who acquires the right to claim under such an agreement will have no grounds for filing claims against the debtor.

The assignment is made in the same form that was established for the original transaction, the rights under which are assigned (Article 389 of the Civil Code of the Russian Federation). For example, if the rights of claim under a transaction made in a simple written form are assigned, then the assignment agreement is concluded in a simple written form. And if the main transaction, the rights under which are assigned, was subject to state registration or notarization, then the assignment agreement must go through the appropriate procedures.

In accordance with Article 384 of the Civil Code of the Russian Federation, unless otherwise provided by law or agreement, the right of the original creditor is transferred to the new creditor in the volume and on the conditions that existed at the time of their transition. In particular, for the new creditor (assignee), the conditions on pledge, surety, interest and other methods of securing the obligation remain in force. All the benefits of the original creditor that are associated with the transferred right, including the rights securing the fulfillment of the obligation, as well as the right to receive a forfeit shall also be transferred to it. In addition, the new creditor acquires all the risks associated with the debtor's default on its obligations.

In practice, there are cases when the original creditor, ceding the right of claim under the obligation to a third party, changes the content of the claim: for example, the supplier, having a monetary claim against the buyer, transfers to the new creditor the right to demand from the buyer the supply of raw materials and products. Such an assignment agreement will be invalidated, since the supplier does not have a commodity claim against the buyer.

Requirements are confirmed by documents

The assignor, by retiring from the obligation, terminates all relations with the debtor. Therefore, when concluding a transaction on the assignment of the right of claim to the parties to the cession agreement, it is necessary to perform certain actions that indicate the complete and unconditional change of persons in the obligation under which the assigned right of claim arose. In particular, a creditor who has ceded the claim to another person is obliged to hand over to him documents certifying the right to claim and provide information relevant to the collection of the debt (clause 2 of article 385 of the Civil Code of the Russian Federation). If this is not done, then in the future it will be difficult to prove your claims. In particular, the judges in the decision of the FAS of the Ural District of September 10, 2013 No. F09-2213 / 12 refused to the plaintiff who had bought the right to claim and tried to recover it from the debtor, precisely because of the lack of primary.

Failure to submit documents cannot serve as a basis for recognizing the transaction on the assignment of the right of claim invalid. This is based on the fact that, as a general rule, the rights (claims) are transferred to the new creditor at the time of such a transaction. And the documents certifying these rights are transferred on its basis (information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated October 30, 2007 No. 120).

To transfer the rights of the 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). However, the debtor must be notified in writing of the transfer of rights that took place. A copy of the assignment agreement, letter and other document can be considered as a notification.

In this case, both the assignee and the assignor can notify the debtor of the transfer of rights.

If the debtor was not notified in writing of the transfer of rights to another person, the new creditor bears the risk. In this case, the payment of the debt to the original creditor is recognized as the fulfillment of the obligation to the proper creditor.

Loss is recognized subject to limitations

In tax accounting, revenue from the sale of property rights is recognized as income from the sale on the date of assignment of the claim to a new creditor, which is defined as the day of signing the corresponding act (clause 5 of Art.271 Tax Code RF). At the same time, the organization has the right to reduce the income from the sale of property rights by the price of their acquisition (subparagraph 2.1 of paragraph 1 of article 268 of the Tax Code of the Russian Federation). The loss received from the realization of the right of claim is taken into account by the enterprise as part of non-operating expenses (subclause 7, clause 2 of article 265, clause 2 of article 268 of the Tax Code of the Russian Federation). The specifics of determining the tax base for the assignment (assignment) of the right of claim are established by Article 279 of the Tax Code of the Russian Federation. It regulates the procedure for recognizing expenses both at the initial assignment of the right of claim, and at subsequent ones. Let's consider them.

If the right is assigned by the seller of the goods

In the case of the initial assignment of the right of claim, the procedure for recognizing expenses depends on whether or not the due date for payment for the products, works or services in the transaction for which the rights are transferred has come. If the claim is assigned before the due date, then not the entire loss is included in expenses. And only in the amount calculated taking into account the requirements of Article 269 of the Tax Code of the Russian Federation. Recall that this article regulates the procedure for accounting for interest on debt obligations.

So, the expenses are the amount that the assignor would have paid in the form of interest on the debt obligation, equal to the income from the assignment of the right of claim. In this case, the specified amount is calculated for the period from the date of assignment of rights to the due date of payment provided for by the contract for the sale of products.

If the debt is sold after the maturity date stipulated by the contract for the sale of goods (works, services), the loss under this transaction is included in non-operating expenses in the following order:

• 50 percent - on the date of assignment of the right of claim;
• 50 percent - after 45 calendar days from that date.

In this case, the loss is recognized for tax purposes in full without any restrictions. The financial department also adheres to this point of view in its letters (letter of the Ministry of Finance of Russia dated March 25, 2013 No. 03-03-06 / 1/9221).

This procedure for recognizing expenses is also applied to a taxpayer - a creditor for a debt obligation (clauses 1 and 2 of article 279 of the Tax Code of the Russian Federation).

If financial services are provided

In the event of the subsequent resale of the right to claim a debt by the enterprise that bought it, the specified transaction is considered as the sale of financial services. In this case, income (revenue) is recognized as the value of the property owed to the enterprise in payment for the exercised right of claim.

In addition to income from the resale of the right of claim, the company may receive the specified debt directly from the debtor. In this case, income will be recognized on the date of receipt of this debt (letter of the Ministry of Finance of Russia dated August 6, 2010 No. 03-03-06 / 1/530).

The tax base in this case is defined as the difference between income in the form of proceeds from the sale of financial services and the amount of expenses associated with the acquisition of the assigned claim (clause 1 of article 268 of the Tax Code of the Russian Federation). And if the income is received in the form of fulfillment of the obligation by the debtor, then the tax base will be the difference between the cost of acquiring the debt and its amount.

Not all amounts are subject to VAT

Whether or not transactions on assignment of a claim are levied depends on the basis of which contract the right to claim arose. Value added tax is levied on transactions in cases where the debt being sold arose as a result of the execution of an agreement for the sale of products, works or services subject to this tax (clause 1 of article 155 of the Tax Code of the Russian Federation).

Conversely, VAT is not imposed on the assignment of the right to claim a debt arising from the sale of products, works and services exempted from tax on the basis of the provisions of Article 149 of the Tax Code of the Russian Federation. For example, a transaction for the sale of debt arising from the debtor's default on a loan agreement.

And the procedure for calculating VAT depends on who has the right to claim at the time of the assignment. If the debt is sold by the original creditor - the supplier of goods (works, services), the tax base will be the excess of the amount of income from the assignment of rights over the amount of the monetary claim.

Well, if the claim is ceded by a new creditor who received a monetary claim from a supplier of goods (works, services), then the tax base is the excess of the amount of income upon the subsequent assignment of the claim or upon termination of the corresponding obligation over the amount of expenses for the acquisition of the specified claim (clause 2 of Art. 155 of the Tax Code of the Russian Federation).

With the subsequent resale of debt, the tax base will also be the difference between the proceeds from the sale or funds received from the debtor and the costs of purchasing this claim (clause 4 of article 155 of the Tax Code of the Russian Federation).

You need to submit an invoice

When assigning a monetary claim, the transferring party must present the appropriate tax amount to the new creditor (buyer) for payment and issue an invoice (clauses 1, 3, article 168, subparagraph 1, clause 3, article 169 of the Tax Code of the Russian Federation). On its basis, the buyer will be able to deduct the amount of VAT indicated in it (clause 1 of article 169 of the Tax Code of the Russian Federation). The invoice must be reflected in the log of received and issued invoices and registered in the sales ledger.

Column 5 "The cost of goods (works, services), property rights excluding tax in total" of the invoice reflects the tax base. Column 7 indicates the VAT rate - 18 percent, and in column 8 - the calculated amount of VAT.

If, upon assignment of a monetary claim, the difference between the price of the assignment and the amount of the claim is negative or equal to zero (that is, the tax base is zero), the calculated VAT amount indicated in column 8 of the invoice is also zero. An invoice shall not be drawn up if the transferred claim for the debt arose in the course of transactions that are not subject to VAT.

The assignment of the claim is reflected in the accounting

In accounting, to account for settlements with the assignee, account 76 "Settlements with different debtors and creditors" can be used. The cost of the assignment of the claim, established by the assignment agreement, is recognized as part of the date of transfer of the right of claim to the new creditor on the debit of account 76 in correspondence with the credit of account 91 "Other income and expenses" (clause 7, 10.1, 16 PBU 9/99). In this case, by an entry on the debit of account 91 and the credit of account 62, the amount of accounts receivable is written off to other expenses (clauses 1, 14.1, 16, 19 PBU 10/99).

Note! When the original creditor sells the right of claim, the loss is included in non-operating expenses in the amount of 50 percent as of the date of assignment of the right of claim and another 50 percent after 45 calendar days.

September 2013