How to obtain compensation from the bailor for storage and extraordinary expenses. Storage agreement The emergence of storage relations by force of law

1. Continuation of the storage relationship after receiving the bailor’s request to return the item

How long should an organization store items consigned for retail sale after bankruptcy? And how to write them off?

1. The emergence of storage relations by force of law

Accounting

Income tax

1. Expiration date for stored goods

1. Restrictions on transferring things to a third party

2. Consequences of transferring a thing to a third party in violation of the contract

3. Compensation for losses caused to the bailor as a result of storing the thing with a third party

1. The influence of the will of the parties when deciding the issue of compensation for the storage agreement

2. Circumstances that do not exempt you from paying for the custodian’s services

3. Circumstances preventing the collection of remuneration for storage from the bailor

4. Possibility of retention and sale by the custodian of the thing in his possession

1. Proving the costs of storing the bailor’s property

2. The possibility for the responsible custodian to receive both remuneration and compensation for expenses

3. Reimbursement of storage costs when releasing valuables from the state material reserve

1. Responsibility of the bailor for failure to receive the thing when notifying the custodian about removal

2. The ability of the bailor to refuse to receive the object of storage and to demand compensation for losses in accordance with Art. 405 Civil Code of the Russian Federation

1. Delivery of the thing to the person indicated by the bailor

2. Request by the bailor of the thing from the custodian

1. Possibility of claiming damages by a bailor who is not the owner of a thing

2. Conditions under which the bailor’s claim for compensation for losses can be satisfied

3. Peculiarities of collecting losses and penalties from the custodian of material reserve items

4. Responsibility of the keeper for the loss of cargo located in vehicles accepted for storage

5. The inevitability of the custodian’s liability for loss or damage to an item

6. Presentation of a claim to the custodian for the recovery of unjust enrichment for the loss of an item

1. Determining the value of lost or damaged items

1. Continuation of the storage relationship after receiving the bailor’s request to return the item

1. The emergence of storage relations by force of law

After receiving the bailor's request for the return of property, the custodian is obliged to immediately return the item to him. The Civil Code of the Russian Federation has a corresponding requirement for the bailor: to immediately pick up the thing at the end of the contract (Article 899 of the Civil Code of the Russian Federation). In practice, the question arises: does the storage relationship continue if the bailor made a demand for the return of property, but did not remove the goods?

If the bailor does not remove the goods after presenting a demand for its return, then the storage relationship continues and the bailee has the right to compensation.

Judicial practice:

Determination of the Supreme Arbitration Court of the Russian Federation dated March 6, 2007 N 16596/06 in case N A60-2141/06-C1

"... LLC "SCM "Maxi-R" by letters dated November 18, 2005, dated January 27, 2006 N 2/01, dated February 10, 2006 N 3/01 informed the company "NPP Opus" that it considers the storage agreement to be from 01.10.2004 N 3/ОХ was terminated and asked to return the goods.

By virtue of Article 904 of the Civil Code of the Russian Federation, the custodian is obliged, at the first request of the bailor, to return the thing accepted for storage, even if the storage period stipulated by the contract has not yet expired.

The court found that as of January 1, 2006, the company “NPP Opus” had in its custody the property of the company “SCM “Maxi-R” in the amount of 2,542,672 rubles 98 kopecks. Demanding the return of its property, SCM Maxi-R LLC did not attempt to remove it.

The court indicated that on the day of consideration of the dispute, SCM Maxi-R LLC had not removed its goods, and they were still in the warehouse of NPP Opus LLC, in connection with which the bailor, by virtue of paragraph 4 of Article 896 of the Civil Code of the Russian Federation, The Federation is obliged to pay the custodian a proportionate fee for further storage of the thing.

Based on the established circumstances, the court considered it possible to satisfy the counterclaim..."

Article 906. Storage by force of law

Issues of judicial practice on the interpretation and application of Art. 906 Civil Code of the Russian Federation

1. The emergence of storage relations by force of law >>>

Storage can arise not only due to the free actions of participants in civil transactions, but also from administrative, tax and criminal legal relations. In judicial practice there are examples of the emergence of storage relations by force of law.

1.1. Conclusion from judicial practice: When a detained vehicle is placed in a parking lot, a storage relationship arises by virtue of the law.

Judicial practice:

Decision of the Supreme Court of the Russian Federation dated May 15, 2006 N GKPI06-240

"...Article 906 of the Civil Code of the Russian Federation provides that the rules of Chapter 47 of this Code, which regulates relations related to the provision of storage services, apply to storage obligations arising by force of law, unless other rules are established by law.

According to Part 5 of Article 27.13 of the Code of Administrative Offenses of the Russian Federation, a detained vehicle can be parked and transferred for storage.

Consequently, on the basis of the specified norms of federal laws, when a detained vehicle is placed in a parking lot and stored, storage obligations arise by force of law, which are subject to the rules of Chapter 47 of the Civil Code of the Russian Federation.

In accordance with Articles 896 - 898 of the Civil Code of the Russian Federation, the bailor is obliged to pay the custodian remuneration for storing the thing, as well as reimburse him for the costs of its storage..."

Determination of the Supreme Court of the Russian Federation dated July 25, 2006 N KAS06-260

"...Placing a vehicle in the parking lot and its storage are not named among the security measures; these actions are carried out after the application of such measures on the basis of Part 5 of Article 27.13 of the Code of Administrative Offenses of the Russian Federation. Relations associated with placing the vehicle in the parking lot and its storage arise on based on the above-mentioned norm of law, but are outside the scope of administrative legislation. By virtue of Article 906 of the Civil Code of the Russian Federation, they are subject to the rules of Chapter 47 of this Code, which regulates storage obligations and liability for their non-fulfillment.

This means that the bailor not only has the right to demand that the thing be returned to him safely, but is also obliged, in accordance with Articles 896 - 898 of the Civil Code of the Russian Federation, to pay the custodian a remuneration for storage, as well as to reimburse the costs of its storage, including those associated with placement on storage (transportation). At the same time, if the bailor fails to fulfill his obligations, the custodian, on the basis of paragraph 1 of Article 359 of the Civil Code of the Russian Federation, has the right to retain the thing (in this case, a vehicle) until the corresponding obligation is fulfilled..."

Resolution of the Federal Antimonopoly Service of the North-Western District dated 08.08.2008 in case No. A42-85/2008

"...According to the position of the Supreme Court of the Russian Federation, set out in the ruling dated July 25, 2006 N KAS06-260, relations associated with the placement of a vehicle in the parking lot and its storage arise on the basis of administrative legislation (part 5 of Article 27.13 of the Code of Administrative Offenses of the Russian Federation) , but are outside the scope of its action. By virtue of Article 906 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), the rules of Chapter 47 of this Code governing storage obligations and liability for their failure apply.

The bailor in this case is not the traffic police official, who, in order to ensure the safe and uninterrupted movement of vehicles, eliminated the offense, but the person whose thing is placed in storage by force of law, namely: the driver (owner, owner’s representative), regardless of its type rights to a vehicle transferred for storage. Consequently, the owner of the vehicle placed in storage (bailor) and the custodian who accepted the thing for storage have the rights and bear the obligations established by civil law. This means that the depositor not only has the right to demand the return of the thing safely, but is also obliged, in accordance with Articles 896 - 898 (Civil Code of the Russian Federation), to pay remuneration for storage, as well as reimburse the costs of its storage. At the same time, if the bailor fails to fulfill his obligations, the custodian, on the basis of paragraph 1 of Article 359 of the Civil Code of the Russian Federation, has the right to retain the thing (in this case, a vehicle) until the corresponding obligation is fulfilled..."

Resolution of the Federal Antimonopoly Service of the North-Western District dated July 11, 2007 in case No. A56-22503/2006

"...In accordance with paragraph 3 of Article 2 of the Civil Code of the Russian Federation, in cases provided for by law, civil legislation may be applied to administrative legal relations.

Part 1 of Article 27.1 of the Code of Administrative Offenses of the Russian Federation lists measures to ensure proceedings in a case of an administrative offense, which, in particular, include the detention of a vehicle and the prohibition of its operation.

Placing a vehicle in a specialized parking lot and storing it are not listed as such measures.

The courts of the first and appellate instances came to the correct conclusion that the relations associated with the placement of a detained vehicle in a specialized parking lot and its storage arise on the basis of the norm established by the Code of Administrative Offenses of the Russian Federation, but are outside the scope of administrative legislation.

In accordance with Article 906 of the Civil Code of the Russian Federation, the rules of Chapter 47 of the said Code apply to storage obligations arising by force of law, unless other rules are established by law.

This legal position was confirmed in the decision of the Supreme Court of the Russian Federation dated May 15, 2006 N GKPI06-240 in a civil case regarding the invalidation of paragraphs 6 and 9 of the Rules. By the ruling of the Supreme Court of the Russian Federation dated July 25, 2006 N KAS06-260, the decision dated May 15, 2006 was left unchanged..."

Resolution of the Federal Antimonopoly Service of the North-Western District dated December 21, 2006 in case No. A56-16085/2006

"...According to the position of the Supreme Court of the Russian Federation, set out in the ruling of July 25, 2006 N KAS06-260, relations associated with the placement of a vehicle in the parking lot and its storage arise on the basis of administrative legislation (Part 5 of Article 27.13 of the Code of Administrative Offenses of the Russian Federation) , but are outside the scope of its action. By virtue of Article 906 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), the rules of Chapter 47 of this Code governing storage obligations and liability for their failure apply.

1.2. Conclusion from judicial practice: The issue of the emergence of storage relations during the transfer of seized or confiscated property during enforcement proceedings is decided by the courts in different ways.

Position 1. When transferring seized or confiscated property during enforcement proceedings, a custody relationship arises between the bailiff and the custodian.

Judicial practice:

Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated October 17, 2006 N 7074/06 in case N A07-32282/05-G-SMSH

“...The cassation court proceeded from the following.

In accordance with the provisions of Article 53 of the Law on Enforcement Proceedings and Article 906 of the Code, after the transfer of the seized property to the Realcomp company, civil obligations for its storage arose between the company and the owners of this property.

The rights to own, use and dispose of property belong only to its owner (Article 209 of the Code), therefore, the right to recover damages for its loss also belongs only to the owner of the property.

The bailiff and the Main Directorate of the Federal Bailiff Service for the Republic of Bashkortostan, not being the owners of the property transferred for storage, but acting only as intermediaries authorized by law for the disposal of property, do not acquire any rights to the property seized and transferred for storage, therefore the management does not also has the right to file a claim in court to recover damages caused as a result of the loss of this property.

Having checked the validity of the arguments set out in the application, the Presidium of the Supreme Arbitration Court of the Russian Federation considers that the appealed judicial act is subject to cancellation on the following grounds.

The bailor may be a person acting on the basis of law or agreement and not being the owner of the property.

In this case, the bailiff was the bailiff service, acting on the basis of the Law on Bailiffs and the Law on Enforcement Proceedings.

Losses caused to the bailor by the loss, shortage or damage of things are compensated by the custodian in accordance with Article 393 of the Code, unless otherwise provided by law or the storage agreement (Article 902 of the Code).

The custodian under agreement No. 4 dated 30.05.2003 was Realcomp LLC, which must compensate the cost of the lost property in accordance with the claim brought by the bailor on the basis of this agreement.

Under such circumstances, the contested judicial act violates the uniformity in the interpretation and application of the rules of law by arbitration courts and, in accordance with paragraph 1 of Article 304 of the Arbitration Procedural Code of the Russian Federation, is subject to cancellation..."

Determination of the Supreme Arbitration Court of the Russian Federation dated January 21, 2010 No. VAS-9853/09 in case No. A82-11294/2008-35

“...The court found that on May 18, 2007, bailiff S.A. Khalistova, on the basis of executive documents, made an inventory and seizure of property belonging to LLC PP Teplo Max. The seized property was transferred for safekeeping under the act of inventory and seizure property to the claimant in enforcement proceedings - LLC "Partner Inter" represented by director Avdolyan S.A.

In this lawsuit, the company asked to recover the cost of storing seized property for the period from July 18, 2007 to July 23, 2008 in the amount of 1,824,977 rubles.

Having assessed the evidence presented, the courts came to the conclusion that there was a legal relationship between the parties regarding the storage of property, subject to regulation by the norms of Chapter 47 of the Civil Code of the Russian Federation, and the obligation of the bailiff service to reimburse the custodian for the costs of storing the property transferred by the bailiff in the framework of enforcement proceedings.

The court applied Article 906 of the Civil Code of the Russian Federation and concluded that the rules established by the Civil Code of the Russian Federation governing legal relations that arose when concluding a storage agreement apply to storage obligations arising by force of law, unless other rules are established by law.

In this regard, the applicant’s argument that the storage of a thing by force of law within the framework of enforcement proceedings is carried out without payment of remuneration is rejected as erroneous.

Satisfying partially the stated claims, the court proceeded from the proof of the fact of transfer of seized property for storage within the framework of enforcement proceedings, the storage of property by the company, the paid nature of such storage and confirmation of the fact of incurring expenses for storage of property..."

Determination of the Supreme Arbitration Court of the Russian Federation dated January 14, 2010 No. VAS-17881/09 in case No. A52-1626/2009

“...The court found that, according to the acceptance certificate dated July 1, 2008, the goods specified in the statement of claim were placed in the temporary storage warehouse of the branch of ROSTEK-Pskov CJSC in Sebezh as part of an administrative offense case.

According to the act of acceptance and transfer of property dated October 14, 2008, the confiscated goods were transferred to the Sebezh district OSB, the location of the property in the act is indicated as the temporary storage warehouse "ROSTEK - Pskov" Sebezh city.

The goods were confiscated from the warehouse and transferred to the Territorial Administration of the Federal Agency for State Property Management in the Pskov Region on the basis of the act of seizure of seized property dated December 16, 2008.

Having assessed the evidence presented, the court came to the conclusion that a legal relationship arose between the parties regarding the storage of property, regulated by the norms of Chapter 47 of the Civil Code of the Russian Federation.

The arguments set out in the application for review of judicial acts in the order of supervision that the norms of civil legislation are not subject to application to disputed relations cannot be accepted.

According to Article 906 of the Civil Code of the Russian Federation, the rules of Chapter 47 “Storage” apply to storage obligations arising by force of law, unless other rules are established by law.

The department's reference to judicial practice in similar cases is not accepted, since in each specific case the court establishes the factual circumstances of the case and applies the rules of law to the established circumstances, taking into account the evidence presented..."

Resolution of the Federal Antimonopoly Service of the North-Western District dated December 3, 2009 in case No. A52-1638/2009

"...The closed joint-stock company "ROSTEK-Pskov" (hereinafter - the Company, plaintiff) filed a claim with the Arbitration Court of the Pskov Region against the Office of the Federal Bailiff Service for the Pskov Region (hereinafter - the Office, defendant) for the recovery of 8,640 rubles. 00 kopecks of debt for payment for storage services.

The company sent the Department invoice No. 165 dated April 30, 2009 in the amount of RUB 8,640. 00 kop. for storing goods in a warehouse from 10/14/2008 to 12/16/2008 in accordance with the price list for services. The management did not pay the bill.

Having assessed the evidence presented, the courts came to the conclusion that in this case, the act of acceptance and transfer of property dated October 14, 2008, together with the act of acceptance and transfer of goods dated July 12, 2008, is a document evidencing the conclusion of a storage agreement in the proper form, since they allow determine both the volume of property transferred for storage and the person who is the custodian and who incurred the costs of storage.

Resolution of the Federal Antimonopoly Service of the North-Western District dated December 3, 2009 in case No. A52-1627/2009

"...The closed joint-stock company "ROSTEK-Pskov" (hereinafter - the Company, plaintiff) filed a claim with the Arbitration Court of the Pskov Region against the Office of the Federal Bailiff Service for the Pskov Region (hereinafter - the Office, defendant) for the recovery of 7,290 rubles. 00 kopecks of debt for payment for storage services.

The bailiff of the Sebezh District Bailiff Department of the Office of the Federal Bailiff Service for the Pskov Region issued a resolution dated September 25, 2008 on the initiation of enforcement proceedings No. 41/3361/750/2/2008.

According to the act of acceptance and transfer of property dated October 24, 2008, the goods were transferred to the bailiff I.L. Kokovina, the location of the property in the act is indicated as the temporary storage warehouse "ROSTEK - Pskov" Sebezh city.

According to the act of seizure dated December 16, 2008 and the act of seizure of seized property dated December 16, 2008, the goods were seized from the temporary storage warehouse and transferred to the Territorial Administration of the Federal Agency for State Property Management in the Pskov Region.

The company sent the Department invoice No. 172 dated April 30, 2009 in the amount of RUB 7,290. 00 kop. for storing goods in a warehouse from October 24, 2008 to December 16, 2008 in accordance with the price list for services. The management did not pay the bill.

According to Article 906 of the Civil Code of the Russian Federation, the rules of Chapter 47 (“Storage”) apply to storage obligations arising by force of law, unless other rules are established by law. Article 896 of the Civil Code of the Russian Federation establishes that remuneration for storage must be paid to the custodian upon completion of storage, and if payment for storage is provided for by periods, it must be paid in appropriate installments at the end of each period.

Having assessed the evidence presented, the courts came to the conclusion that in this case, the act of acceptance and transfer of property dated 10/24/2008, together with the act of acceptance and transfer of goods dated 07/09/2008, is a document evidencing the conclusion of a storage agreement in the proper form, since they allow determine both the volume of property transferred for storage and the person who is the custodian and who incurred the costs of storage.

The courts, having established that the Company stored property in the period from October 24, 2008 to December 16, 2008, reasonably applied the provisions of Chapter 47 of the Civil Code of the Russian Federation to the legal relations that arose..."

Resolution of the Federal Antimonopoly Service of the North-Western District dated December 3, 2009 in case No. A52-1626/2009

"...The closed joint-stock company "ROSTEK-Pskov" (hereinafter - the Company, plaintiff) filed a claim with the Arbitration Court of the Pskov Region against the Office of the Federal Bailiff Service for the Pskov Region (hereinafter - the Office, defendant) for the recovery of 5,750 rubles. 00 kopecks of debt for payment for storage services.

The bailiff of the Sebezh District Bailiff Department of the Office of the Federal Bailiff Service for the Pskov Region issued a resolution dated September 2, 2008 on the initiation of enforcement proceedings No. 41/3061/595/2/2008.

According to the property acceptance and transfer act dated 10/14/2008, the goods were transferred to the bailiff I.L. Kokovina, the location of the property in the act is indicated as the temporary storage warehouse "ROSTEK - Pskov" Sebezh city.

The company sent the Department invoice No. 164 dated April 30, 2009 in the amount of RUB 5,750. 00 kop. for storing goods in a warehouse from 10/14/2008 to 12/16/2008 in accordance with the price list for services. The management did not pay the bill.

Having assessed the evidence presented, the courts came to the conclusion that in this case, the act of acceptance and transfer of property dated October 14, 2008, together with the act of acceptance and transfer of goods dated July 1, 2008, is a document evidencing the conclusion of a storage agreement in the proper form, since they allow determine both the volume of property transferred for storage and the person who is the custodian and who incurred the costs of storage.

The courts, having established that the Company stored property in the period from October 14, 2008 to December 16, 2008, reasonably applied the provisions of Chapter 47 of the Civil Code of the Russian Federation to the legal relations that arose..."

Resolution of the Federal Antimonopoly Service of the North-Western District dated December 3, 2009 in case No. A52-1625/2009

"...The closed joint-stock company "ROSTEK-Pskov" (hereinafter - the Company, plaintiff) filed a claim with the Arbitration Court of the Pskov Region against the Office of the Federal Bailiff Service for the Pskov Region (hereinafter - the Office, defendant) for the recovery of 2,880 rubles. 00 kopecks of debt for payment for storage services.

According to the act of acceptance and transfer of property dated October 14, 2008, the goods were transferred to the bailiff Vasilyeva V.B., the location of the property in the act is indicated as temporary storage warehouse "ROSTEK - Pskov" Sebezh city.

The company sent the Department invoice No. 156 dated April 30, 2009 in the amount of 2,880 rubles. 00 kop. for storing goods in a warehouse from 10/14/2008 to 12/16/2008 in accordance with the price list for services. The management did not pay the bill.

Having assessed the evidence presented, the courts came to the conclusion that in this case, the act of acceptance and transfer of property dated October 14, 2008, together with the act of acceptance and transfer of goods dated July 1, 2008, is a document evidencing the conclusion of a storage agreement in the proper form, since it allows determine both the volume of property transferred for storage and the person who is the custodian and who incurred the costs of storage.

Resolution of the Federal Antimonopoly Service of the North-Western District dated December 3, 2009 in case No. A52-1624/2009

"...The closed joint-stock company "ROSTEK-Pskov" (hereinafter - the Company, plaintiff) filed a lawsuit against the Office of the Federal Bailiff Service for the Pskov Region (hereinafter - the Office, defendant) for the recovery of 495 rubles. 00 kopecks of debt on payment for storage services.

According to the act of acceptance and transfer of property dated October 23, 2008, the goods were transferred to the bailiff Kokovina I.L., the location of the property in the act is indicated as the temporary storage warehouse "ROSTEK - Pskov" Sebezh city.

The company sent the Department invoice No. 159 dated April 30, 2009 in the amount of 495 rubles. 00 kop. for storing goods in a warehouse from October 23, 2008 to December 16, 2008 in accordance with the price list for services. The management did not pay the bill.

Having assessed the evidence presented, the courts came to the conclusion that in this case, the act of acceptance and transfer of property dated October 23, 2008, together with the act of acceptance and transfer of goods dated July 1, 2008, is a document evidencing the conclusion of a storage agreement in the proper form, since it allows determine both the volume of property transferred for storage and the person who is the custodian and who incurred the costs of storage.

The courts, having established that the Company stored property in the period from October 23, 2008 to December 16, 2008, reasonably applied the provisions of Chapter 47 of the Civil Code of the Russian Federation to the legal relations that arose..."

Position 2. When transferring seized property during enforcement proceedings, civil legal relations regarding storage do not arise, since these are public legal relations based on the administrative actions of the bailiff.

Judicial practice:

Resolution of the Federal Antimonopoly Service of the North-Western District dated July 30, 2008 in case No. A42-1104/2006

"...From the above it follows that the conclusion of a civil law contract for the forced execution of judicial acts of courts of general jurisdiction and arbitration courts, as well as acts of other bodies in relation to seized and seized property, in order to ensure the safety of such property, compensation for losses in the event of it loss (destruction), shortage or damage is possible in the manner established by the legislation of the Russian Federation.

At the same time, the courts have established and from the case materials that no such agreement for the storage of seized property was concluded between the Company and the Management, the property was not transferred to the Company for storage, and the plaintiff has not proven otherwise.

The complaint’s argument about the need to apply the provisions of Article 906 of the Civil Code of the Russian Federation (storage by force of law) to the legal relations that have arisen is unfounded and contrary to the meaning of this norm.

At the same time, in accordance with Part 2 of Article 53 of Law No. 119-FZ and Clause 3 of the Regulations on the procedure and conditions for storing seized and seized property, approved by Decree of the Government of the Russian Federation of July 7, 1998 No. 723, the custodian receives an appropriate remuneration for storage. In addition, he is reimbursed for the necessary expenses incurred for storing property.

In accordance with Appendix No. 16 to Order of the Ministry of Justice of the Russian Federation dated 03.08.1999 N 225 (which was in force during the disputed period), the amount of remuneration for storage of property is established by the bailiff in the range from 0.5 to 5% of the value of the property, but not less 0.5 and no more than 10 minimum wages. Remuneration to the custodian relates to the expense item for carrying out enforcement actions.

Taking into account the above, the cassation court finds no grounds for canceling the appealed judicial acts..."

In this case, see also the Resolution of the Thirteenth Arbitration Court of Appeal dated March 28, 2008 in case No. A42-1104/2006.

Resolution of the Thirteenth Arbitration Court of Appeal dated March 28, 2008 in case No. A42-1104/2006

“...The court of first instance, refusing to satisfy the stated demands of the society, gave a full assessment of the circumstances of the case, correctly applying the norms of substantive and procedural law.

Seizure of the debtor's property, including actions to transfer the seized property for storage, carried out by a bailiff in accordance with Art. 51 - 53 of the Federal Law “On Enforcement Proceedings” are power-administrative actions of the enforcement agency, carried out within the powers granted to it by the Federal Law “On Enforcement Proceedings”.

The court of first instance rightfully stated that in this case, relations for the storage of seized property are public law, since the bailiff, when transferring seized property for storage, is not guided by civil legislation with its principles of autonomy of will and freedom of disposal of his property...

At the same time, the grounds for the emergence of an obligation to store seized property within the framework of enforcement proceedings are precisely the authoritative actions of the bailiff. Indication in Art. 906 of the Civil Code of the Russian Federation for the application to storage obligations arising by force of law, the rules of Chapter. 47 of the Civil Code of the Russian Federation does not in itself mean that this storage obligation is a transaction.

Thus, the court of first instance correctly concluded that the actions of the bailiff to seize the property and transfer it for storage to O.I. Suruda, as well as the act of inventory and seizure of property dated July 26, 2005, are not transactions. "

1.3. Conclusion from judicial practice: When storing material evidence (a vehicle) within the framework of a criminal case, a storage relationship between the owner of the thing and the custodian does not arise and the norms of the Rules for the detention of a vehicle, its placement in a parking lot, storage, as well as the prohibition of operation, approved by Decree of the Government of the Russian Federation of December 18, 2003 N 759 do not apply.

Judicial practice:

Resolution of the Federal Antimonopoly Service of the Ural District dated July 20, 2009 N F09-5006/09-C5 in case N A34-2911/2008-G34

"...When satisfying the claims, the courts of the first appellate instance were guided by Articles 210, 309, 310, 906, 896 of the Civil Code of the Russian Federation, clause 6 of the Rules for the detention of a vehicle, its placement in the parking lot, storage, and prohibition of operation, approved Decree of the Government of the Russian Federation dated December 18, 2003 N 759, and came to the conclusion that the car belonging to the Zauralye company was placed for storage in a specialized parking lot, in connection with which the defendant had an obligation to pay a fee for storage for the period from 07.10. 2007 to 07/20/2008 in the amount of 214,233 rubles 30 kopecks...

The decision of the court of first instance and the decision of the court of appeal are based on the incorrect application of substantive law.

Having concluded that the defendant has an obligation to pay the plaintiff a fee for storing a detained vehicle in a specialized parking lot (Articles 906, 896 of the Civil Code of the Russian Federation), the courts did not examine the nature of the legal relations of the parties and the circumstances relevant to the case, and did not take into account that There were no contractual legal relations between the defendant and the Vector company for the storage of the Moskvich IZH 2140 car.

Referring when resolving the dispute to the Rules for the detention of a vehicle, its placement in a parking lot, storage, and prohibition of operation, approved by Decree of the Government of the Russian Federation of December 18, 2003 N 759, the courts did not take into account that the said Rules determine the procedure for detention, parking and storage vehicles within the framework of proceedings regarding an administrative offense.

Taking into account the above, the courts should have taken into account that the procedure for storing material evidence is regulated by Art. 81, 82 of the Criminal Procedure Code of the Russian Federation, as well as the Regulations on the storage and sale of items that are material evidence, the storage of which is difficult until the end of a criminal case or during a criminal case, approved by Decree of the Government of the Russian Federation of August 20, 2002 N 620.

According to clause 9 of the said Regulations, financing of activities related to the storage and sale of material evidence is carried out at the expense of funds provided for the current maintenance of the authorized body in accordance with the legislation of the Russian Federation..."

1.4. Conclusion from judicial practice: When the customer transfers property to the contractor, a storage relationship arises between them by force of law.

Judicial practice:

Resolution of the Federal Antimonopoly Service of the North-Western District dated 09/04/2009 in case No. A56-27673/2008

"...Based on a study and assessment of the documents available in the case file, the courts established that a contractual relationship actually existed between O.S. Trubacheva and Axel-Car Pulkovo LLC. Thus, placing the car in the parking lot from which it was stolen due to the transfer of the vehicle to the defendant for repair work. The vehicle was accepted for repairs before the moment of its theft. An order No. 55406 was issued for the repair of the vehicle, which indicates the defects requiring repair (damage to the paintwork), and the vehicle was accepted by the defendant’s employee Kulikov (sheet). case 44). In confirmation of the acceptance of the car for repair, Trubacheva O.S. was issued a coupon for order No. 55406 dated 02.12.2006. From certificates of the investigation department at the Internal Affairs Directorate of the Moskovsky District of St. Petersburg dated 04.25.2006 and dated 05.04.2006 (case sheet 15). - 16) it follows that the victim O.S. Trubacheva gave the car ignition key, alarm key fob, and immobilizer key to the employees of Axel-Car Pulkovo LLC. That is, the car, in fact, came into the possession of the defendant.

In accordance with Article 714 of the Civil Code of the Russian Federation, the contractor is responsible for the failure to preserve the material, equipment provided by the customer, things transferred for processing (processing), or other property that comes into the possession of the contractor in connection with the execution of the contract.

The courts also concluded that a legal relationship has arisen between the parties regarding the storage of a car, since in accordance with Article 906 of the Civil Code of the Russian Federation, the rules of Chapter 47 “Storage” of the Civil Code of the Russian Federation apply to storage obligations arising by force of law.

The defendant’s reference to the absence of a written storage agreement between the parties was reasonably rejected by the courts, since in this case, Axel-Car Pulkovo LLC acquired obligations to store the vehicle by force of law (Article 714 of the Civil Code of the Russian Federation)..."

Signed for seal

All aspects relating to the conclusion of a custody agreement (hereinafter referred to as the agreement) are regulated by the Civil Law of the Russian Federation, in particular the Civil Code of the Russian Federation.

If the parties do not have the opportunity to draw up a document in written format, but there are receipts, receipts or tokens confirming the transfer of valuables, then the obligations arising in this case are equivalent to the written form of the agreement.

However, even the absence of a written agreement is not a reason in the event of disputes and legal proceedings, refuse the parties to satisfy the claim if there are witnesses confirming the actual transfer of valuables for storage.

Based on the legal basis for concluding a storage agreement, we can highlight three main characteristics, defining the peculiarities of accepting such obligations. These include:

The bailor must transfer things for storage solely of his own free will. Any influence on the part of the custodian in order to influence the owner of valuables is prohibited.
The transfer is carried out free of charge, that is, the custodian does not receive any material benefit.
The agreement is unilateral; accordingly, the initiator of its conclusion is the owner of the valuables.

Also storage services for valuables may be a type of business for any persons or companies. In this case, the storage agreement has the following features of the conclusion:

The concluded contract is compensated. The bailor undertakes to pay the amount agreed upon in the contract for storage services within the established time frame.
Unlike the classic format of a custody agreement, in cases where the transfer of valuables is a type of entrepreneurial activity, both parties to the relationship can initiate the agreement.

As for the period of validity of the agreement, when concluding it, the depositor and the custodian can determine a specific period, or they may not indicate any dates at all; the deadline for the return of valuables will be the first demand of the depositor.

Each concluded agreement must necessarily contain information related to the category of essential conditions. In the absence of the most important points and the emergence of controversial situations requiring recourse to the judicial authorities, the contract may be declared invalid.

An essential condition of a storage agreement may be its subject matter, which is understood as a specific thing transferred for the purpose of ensuring safety from one party to the other. It should be noted that if the thing being transferred contains other items not directly named in the contract, then such values are not the subject of the contract.

When indicating which conditions are essential when concluding an agreement, it is necessary to note which information does not affect the legality of the document being drawn up. TO unimportant conditions characteristics such as the period for which the contract is concluded, the place in which the object will be located during the validity of the contract and other similar information can be included.

As mentioned above, the subject of the custody agreement is values that have a material form. The subject of the contract may have both individual characteristics and be determined on the basis of generic characteristics. If unique values are transferred under the contract, then at the end of the contract, these particular objects must be returned.

However, in the case when a thing defined by generic characteristics is transferred, these values can be kept by the custodian with depersonalization, that is, together with similar things. In this case, one of these objects should be returned to the custodian.

Maintain the object transferred for storage intact, creating all the necessary conditions for the successful fulfillment of this obligation.
Upon first request, return the object specified in the contract, as well as all benefits received during the period of storage of these valuables.

The owner of the contract object also has an obligation, which is to timely pick up the transferred item from the custodian upon expiration of the contract.

After a custody agreement, when this type of activity is determined to be profitable for the custodian, is concluded and the subject of the agreement is transferred to an authorized person, the custodian bears full responsibility for the safety, damage, damage to the valuables to their owner.

This type of liability arises even if the custodian is not at fault in the event that occurred. In this case, it is necessary to compensate not only the actual amount of damage caused, but also losses associated with lost material profits.

However, for those storage agreements that are drawn up free of charge, the custodian’s liability for damage to property arises only if there is actually proven guilt. In this case, it is reimbursed only the real amount of damage.

In most cases, the property transferred for storage has considerable cost. As a result, it is recommended to carefully justify the choice of one or another custodian of valuables, analyze the concluded custody agreement, and options for possible repayment of losses in the event of adverse events.

Not only property objects, but also documents can be transferred for storage. In this case, it is much more difficult to assess the real value of the transferred values. That is why it is so important to provide as much as possible for the likelihood of the custodian paying material compensation in the event of loss or damage to the subject of the contract.

Also, when choosing a partner under a custody agreement, you should check solvency custodian by carrying out analytical measures in case the terms of the contract are violated? and the custodian will have to pay the depositor at his own expense.

If the transferred assets require certain storage conditions, you should check their availability before signing the contract.

When concluding a custody agreement, both parties to the contractual relationship bear civil liability. All basic requirements containing the conditions under which liability of the parties and its amount may arise are determined by law.

Despite this, the depositor and the custodian have the opportunity set other conditions based on the provisions of the agreement concluded between them.

In accordance with the legal framework, in particular Art. 901 of the Civil Code of the Russian Federation, the maximum degree of liability occurs if the custodian of valuables has not provided proper storage conditions and the subject of the contract is damaged or destroyed.

The amount of compensation will depend on what basis - paid or gratuitous - the storage agreement was concluded.

The custodian, who provides professional storage services, undertakes to be responsible for damage and loss of valuables, with the exception of events resulting from force majeure in the amount of damage caused.

If storage of property is carried out free of charge, then compensation for losses associated with the carelessness or oversight of the custodian is made in the amount of actual damage to the object. In those cases when the thing is not destroyed, but its properties and characteristics are violated, the damage is repaid within the limits of the reduction in the value of the valuables.

In some cases, the depositor transfers for storage valuables that have dangerous characteristics (explosive, flammable, etc.), without warning the custodian about the peculiarities of the objects. This situation is stipulated by law and allows the custodian to destroy these valuables without having to compensate for the damage caused to the depositor. Moreover, the owner of dangerous objects is charged with the duty reimburse the custodian for all expenses associated with the content of such values.

However, not only the custodian is responsible within the framework of the concluded agreement. If the relationship between the depositor and the custodian is established by a storage agreement concluded between them on a reimbursable basis, but, despite this, the owner of the subject of the agreement never transferred the value for storage, he obliged to compensate the custodian of the amount of profit not received from the performance of this service.

A custody agreement is one of the types of legal relations between interested parties and is successfully used in Russian practice. All the main parameters of concluded contracts are determined by civil law, but the parties have the right adjust nuances and enshrine them in the contract, taking into account your wishes.

What is a secure storage warehouse? Details are in this video.

In this case, the goods storage agreement (Civil Code of the Russian Federation) actually comes into force between the parties to the commission agreement.

In this case, the custodian (commission agent) has the right to:

things will lose their consumer value).

If the owner is liquidated through bankruptcy, it is not possible to return the goods to him, and it is also impossible to obtain compensation from him for the custodian’s expenses. Liquidation of an organization entails the termination of the rights and obligations of the liquidated organization without legal succession, so there is simply no one to return the goods after liquidation. After the publication in the media of a message about the liquidation of an organization through bankruptcy, the commission agent could turn to the liquidation commission with a demand to reimburse his expenses for storing the goods, and oblige the committent to pick up the goods, but now this opportunity is lost.

Therefore, the custodian can either sell the goods and thereby compensate for his expenses, or write them off if their sale is not possible. The law does not establish a period after the liquidation of the bailor during which the bailee is obliged to store the goods. Clause 2 of Art. 896 of the Civil Code of the Russian Federation establishes the obligation to store goods after the expiration of the storage agreement - another half of the period for which the depositor must pay (if the storage fee is paid periodically or if the agreement provides for a deferment in payment for services), but in this case the parties did not enter into a storage agreement , therefore this condition does not apply, moreover, the bailor is liquidated. Accordingly, in this case the custodian can begin to sell or dispose of (write off) the goods at any time.

The custodian has the right:

The amount that the custodian will receive from the sale of the item will have to be distributed as follows:

sell goods
return it to the owner yourself,
Dispose of (if the owner does not pick up the goods within a reasonable time, and they themselves
The amount that the custodian will receive from the sale of the item will have to be distributed as follows:

Thus, the Federal Antimonopoly Service of the Ural District noted: “If the supplier violates the obligation to remove the goods in custody or dispose of them, the buyer has the right to either sell the goods or return them to the supplier” (resolution dated April 7, 2014 No. F09-1697/14 in case No. A60-44604/2012).

In this case, the supplier will be obliged to reimburse the buyer’s necessary expenses for selling the goods or returning them (clause 3 of Article 514 of the Civil Code of the Russian Federation). For information on how to recover them from the supplier, see How the buyer can reimburse costs associated with responsible storage of goods.

Sales of goods

The Civil Code of the Russian Federation is silent about the procedure for selling goods accepted by the buyer for safekeeping.

The form in which notice of bidding must be given is not approved by law. To avoid possible disputes, it makes sense to publish the necessary information in print.

The winner of the auction is the person who offers the highest price (Clause 4, Article 447 of the Civil Code of the Russian Federation). With him, the buyer on the day of the auction will have to sign a protocol on the results of the auction, which has the force of a contract (clause 6 of Article 448 of the Civil Code of the Russian Federation).

If the auction is held in violation of the rules established by law, then it may be declared invalid by the court on the claim of an interested party (for example, on the claim of an inactive supplier) within one year from the date of the auction (clause 1 of Article 449 of the Civil Code of the Russian Federation). This will entail the invalidity of the contract concluded with the person who won the auction (Clause 2 of Article 449 of the Civil Code of the Russian Federation).

See also How to conduct a tender to select a supplier (contractor).

The proceeds from the sale of goods will need to be transferred to the supplier.

Naturally, storing and selling goods (especially through an auction) entails certain costs for the buyer. The buyer will be able to deduct (withhold) the corresponding amount (reimbursement due) from the funds received during the sale of the goods. That is, the buyer has the right to offset counter monetary claims ().

Attention! The contract may establish a ban on the buyer’s independent sale of goods accepted for safekeeping.

Advice

It makes sense to use the same type of transport with which the goods were delivered from the supplier to the buyer, if, of course, this product was delivered alone in transport (not along with other goods).

The fact is that courts often compare transportation costs for delivering goods to the buyer and for returning them to the supplier. If the latter significantly exceed the former, then the courts conclude that the buyer’s actions “do not indicate the exercise of due care and diligence in order to minimize possible losses” (ruling of the First Arbitration Court of Appeal dated June 23, 2014 in case No. A39-267 /2014). As a result, the buyer runs the risk of not returning the full amount of money spent on returning the goods.

Second question– what to do if the supplier refuses to accept the goods back (will not allow the buyer’s transport into its territory)?

In this case, the goods will need to be returned to the buyer’s warehouse and a lawsuit will be filed to oblige the supplier to remove the goods, reimbursement of expenses incurred in connection with the acceptance of the goods for safekeeping and return to the supplier (evasion of acceptance of the goods).

Moreover, if there is a high risk that the supplier will refuse to accept the goods and (or) returning the goods will require significant effort and resources, then it makes sense to abandon attempts to return the goods yourself. It is better to immediately go to court with a demand for the supplier’s obligation to remove the goods.

Is it possible to dispose of the goods after the expiration of the reasonable period specified in paragraph 2 of Article 514 of the Civil Code of the Russian Federation?

Yes, you can, despite the fact that such a right is not provided for in the Civil Code of the Russian Federation.

The buyer may dispose of goods accepted for safekeeping if:

In this case, recycling the goods will be a way to reduce the cost of storing and protecting the goods. The supplier will not be able to demand either the return of the goods or a refund of its cost.

Moreover, if the specified conditions exist, after disposal of the goods, the buyer may demand from the supplier reimbursement of expenses associated with the responsible storage of the goods, including its disposal (see, for example, the resolution of the Arbitration Court of the Ural District dated September 4, 2014 No. F09- 11799/13 in case No. A50-13330/2013, by decision of the Supreme Court of the Russian Federation dated December 30, 2014 No. 309-ES14-6077, it was refused to transfer this case to the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation for review in cassation proceedings of this decision ).

Practical example: the court rejected the supplier’s arguments that the customer did not have the right to dispose of the goods, and recovered the costs associated with responsible storage of the goods

LLC "U." (supplier) on the basis of a municipal contract, in the period from October 22 to November 16, 2011, supplied MUP “S.” (customer) washed river sand. However, the customer did not accept the goods, since they did not meet the quality requirements, and by letter dated November 16, 2011, offered to terminate the contract.

After 1 year and 10 months, LLC "U." in a letter dated September 12, 2013, addressed the municipal unitary enterprise “S.” with a request to organize accounting and return of supplied river sand in the amount of 3230.6 tons. The customer replied that the return and removal of sand is possible after the supplier reimburses the costs of responsible storage of the goods in the total amount of 1,862,960 rubles. 40 kopecks

LLC "U." filed a claim with the arbitration court for the obligation to return the imported and unpaid sand in the amount of 3,230.6 tons, and if it is impossible to return the sand in kind, to recover the cost of the sand in the amount of 970,795 rubles. 30 kopecks, as well as interest for the use of other people's funds in the amount of 22,692 rubles. 33 kopecks

MUP "S.", in turn, filed a counterclaim to recover the cost of responsible storage of the rejected goods in the amount of 1,862,960 rubles.

The supplier referred to the fact that the customer, as the custodian of the disputed sand, did not have the right to dispose of it, since it “is not provided for by current legislation, in particular the Civil Code of the Russian Federation.”

The court took into account:

The court also noted: “The municipal customer... ensured the safety of low-quality goods for a reasonable period of time, its actions to dispose of low-quality goods reduced the cost of storing and protecting the goods. The impossibility of returning low-quality goods arose through the fault of [LLC "U."] itself due to failure to fulfill in a timely manner its obligation to remove the low-quality goods from the buyer’s warehouse or dispose of them in another way.”

Since MUP "S." proved the fact of storing the disputed goods and incurring the corresponding expenses, then his counterclaims were satisfied. In the lawsuit of LLC "U." was refused (resolution of the Arbitration Court of the Ural District dated December 9, 2014 No. F09-8344/14 in case No. A07-23376/2013).

The buyer accepted the prepaid goods of inadequate quality for safekeeping. What to do (return the goods or sell them) if the supplier has not removed the goods and disposed of them within a reasonable time

The buyer can choose the course of action that he considers most preferable for himself. The fact that the goods have already been paid for does not affect the existence of the rights enshrined in paragraph 2 of paragraph 2 of Article 514 of the Civil Code of the Russian Federation.

At the same time, you need to take action to return the funds transferred to the supplier as payment. Therefore, the sale of goods may be the most preferable. Of course, it is unlikely that you will be able to recover from it the amount that was paid to the supplier. However, this will allow you to replenish your working capital more quickly (in comparison with claiming funds through the court). And the difference in amounts can be recovered from the supplier later in court. For example, in the case of the delivery of goods with significant defects, you need to refer to the provisions of paragraph 1 of Article 518 and paragraph 2 of Article 475 of the Civil Code of the Russian Federation (for more details, see How to make a claim to a supplier in connection with the receipt of low-quality goods).

If the option to sell the product is difficult to implement due to the nature of the product itself, then it is worth trying to return the product. If the supplier:

Victor Anokhin, Dmitry Chvanenko,

The bailor has lost interest in the thing transferred for storage. What happens if the bailor refuses to both accept the property back and pay for storage?

In this case, the custodian will store the thing for another half of the period for which the bailor must pay (if the storage fee is paid periodically or if the contract provides for a deferred payment for services), and then will demand that the bailor immediately pick up the deposited thing, if the contract does not established otherwise (clause 2 of article 896 of the Civil Code of the Russian Federation). And since the bailor refuses to pick it up, then (unless otherwise provided by the contract) the custodian will have the right:
- independently sell the item at the price prevailing at the place of storage (if the cost of the item does not exceed 100 minimum wages);
- In this case, the amounts due to the custodian will include not only remuneration for storage, which the depositor did not want to pay, but also clause 4 of Art. 896 of the Civil Code of the Russian Federation), and losses caused to the custodian.
  
  To write off goods, you will need to conduct an inventory. Expenses for the disposal of goods can be written off as other (subclause 49, clause 1, article 264 of the Tax Code of the Russian Federation). The custodian will need to draw up acts on the inventory of goods, on declaring them unfit, and on their destruction. Expenses must be confirmed by an extract from the tax registers about the write-off of products.
  
  Rationale
  
  From the recommendation of Alexander Porotikov, candidate of legal sciences, judge of the Nineteenth Arbitration Court of Appeal, Sergei Aristov, Editor-in-Chief of the Lawyer Sistema Lawyer, Alexandra Barinova, Head of the Legal Department of O-Courier LLC, a subsidiary of OZON Holding
  
  What should the buyer do if the supplier does not take the goods from safekeeping (does not dispose of the goods)
  
  It often happens that the supplier, having received notification of acceptance of the goods for safekeeping, is in no hurry to pick it up or dispose of it in any other way.
  
  However, the buyer continues to bear the costs associated with storing the goods. What should he do in this case?
  
  The Civil Code of the Russian Federation provided for such a situation and in paragraph 2 of paragraph 2 of Article 514 provided the buyer with two options that he can use if the supplier fails to act and a reasonable period has passed:
  - will deduct amounts due to him;
  - the remainder will be transferred to the bailor.
  - sell goods or
  - return it to the supplier yourself.
  - about the time, place and form of auctions (indication of their holding in the form of an auction);
  - about the subject of the auction (name and quantity of goods in safekeeping, its shortcomings (if any));
  - about existing encumbrances of the goods being sold;
  - on the procedure for conducting auctions, including registration of participation in the auction, determining the person who won the auction;
  - about the starting price (taking into account the above).
  - the supplier fails to fulfill his obligations to remove the defective goods (or otherwise dispose of them) within a reasonable time;
  - the product has lost its consumer value (unsuitable for use), and therefore cannot be sold.
  - proof of the fact of acceptance of low-quality goods for safekeeping;
  - inaction of the supplier to remove or otherwise dispose of the delivered low-quality goods within a reasonable time (LLC “U.” “did not dispose of the low-quality goods in accordance with the requirements of paragraph 2 of Article 514 of the Civil Code of the Russian Federation, did not independently dispose of them”);
  - lack of evidence of consumer value and cost of low-quality sand (LLC “U.” did not provide “evidence confirming the suitability of the product for use, the presence of any consumer value, the possibility of its sale and the cost of low-quality goods”);
  - sand storage costs.
  - accepts it, but refuses to return the money - you need to go to court with a claim to recover payment and expenses incurred in connection with the storage and return of the goods;
  - will not accept it and will not return the money - you need to go to court with a claim to recover payment, the obligation of the supplier to pick up the goods and recovery of expenses incurred in connection with storage.
- independently sell the item at the price prevailing at the place of storage (if the cost of the item does not exceed 100 minimum wages);
- sell the item at auction in the manner prescribed by the Civil Code of the Russian Federation (if the cost of the item exceeds 100 minimum wages).
will deduct amounts due to him;
the remainder will be transferred to the bailor.

In this case, the amounts due to the custodian will include not only the remuneration for storage, which the bailor did not want to pay, but also the following:

payment for storage until the sale of the item, unless otherwise provided by the contract (clause 4 of Article 896 of the Civil Code of the Russian Federation);

However, keepers rarely exercise their right to sell things. More often, they turn to the arbitration court to protect their interests and at the same time demand to collect debts for storage (including storage after termination of the contract) and interest for the use of other people's money. The courts usually satisfy such claims (decrees of the FAS Moscow District dated October 21, 2010 No. KG-A40/12750-10 in case No. A40-125007/09-9-980, FAS Volga District dated September 20, 2010 in case No. A06 -225/2010, FAS North-Western District dated May 27, 2010 in case No. A56-14489/2009).

From the recommendation of Sergei Aristov, Editor-in-Chief of the Lawyer Sistema Lawyer, Victor Anokhin, Doctor of Law, Professor, Honored Lawyer of the Russian Federation, retired Chairman of the Arbitration Court of the Voronezh Region, Dmitry Chvanenko, Head of the legal department of the company "Russian Project"

How to obtain remuneration from the bailor for storage and emergency expenses

For storage of an item, the bailor must pay the custodian the remuneration established in the contract, unless, of course, the parties have agreed that storage will be free of charge (see, for example, the determination of the Supreme Arbitration Court of the Russian Federation of November 17, 2009 No. VAS-14838/09). However, in practice, bailors often refuse to pay the custodian's fees and/or extraordinary expenses.

How to get rewards for storage

If the bailor refuses to pay the bailee a fee, then the latter must act depending on whether the thing is with the bailee or whether the bailor has already taken it.

In the second case, the choice is small - you need to send a claim to the bailor (if the claim procedure is established in the storage agreement), and then apply to the arbitration court with a claim to collect the debt for storage.

However, if the thing is still at the disposal of the custodian and the contract does not establish a different procedure for such a case, then it is worth doing the following.

First of all, a letter must be sent to the bailor demanding that he immediately pay the remuneration for storage and pick up the item transferred for storage. In this case, the custodian must send the letter within the following time limits:

immediately after the storage period expires (if the contract is fixed-term and the remuneration is payable upon completion of the entire storage). See sample letter form;
upon expiration of the storage period usual under the given circumstances (if the parties entered into an agreement “on demand of the thing”). In this case, the letter must indicate a reasonable period during which the custodian is obliged to pick up the item. See sample letter form;
upon the expiration of another half of the period for which the bailor had to pay (if the storage fee is paid by period). See sample letter form.

This letter will help refute the bailor’s possible arguments that the custodian himself avoided returning the property.

If the bailor expresses a desire to pick up the item, but does not pay for storage, then it makes sense for the custodian to exercise the right to retain the property in his possession (). However, the following conditions must be present.

1. The bailor must be the owner of the thing. This is due to the fact that, within the meaning of the Civil Code of the Russian Federation, the subject of retention can be a thing that belongs to the debtor by any right (see the definition of the Supreme Arbitration Court of the Russian Federation of September 3, 2010 No. VAS-11275/10). If the bailor is not the owner of the property, then the retention of someone else's property to secure the fulfillment of the obligation is not allowed.

2. The value of the thing should not significantly exceed the amount of the bailor’s debt, “since, within the meaning of articles, paragraph 2 of Article 348 of the Code, the principle of proportionality must be observed when withholding” (resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated July 14, 2011 in case No. A43-18667 /2010).

If the custodian retains property, the owner of which is not the bailor, or the value of which significantly exceeds the debt, he will be obliged to return the thing to the bailor, and will also be liable for the failure to preserve the thing.

The disadvantage of withholding is that the depositor will not be required to reimburse the custodian’s expenses for withholding the stored items (Resolution of the Federal Antimonopoly Service of the Ural District dated June 29, 2011 No. F09-3282/11-C5 in case No. A07-13973/2010). Therefore, sometimes it makes sense to return the property to the bailor and file a claim in court in the manner indicated above.

Advice

The amount of remuneration that the bailor will be obliged to pay must also include a proportionate remuneration for storage after the period established in the contract has expired (if the contract was fixed-term). This right is provided for in paragraph 4 of Article 896 of the Civil Code of the Russian Federation and is applied unless otherwise established by the parties in the contract. However, the exception to this rule is the custodian's expenses for retaining the stored items.

If the bailor does not respond to the letter or refuses to pick up the item and pay for storage, then the custodian can choose one of the following options.

First, you can file a claim in arbitration court. At the same time, the amount of claims should also include proportionate remuneration in accordance with paragraph 4 of Article 896 of the Civil Code of the Russian Federation, unless otherwise provided by the contract.

Practical example: the court granted the custodian’s claim to collect debt for storage after the contract expired, since the custodian proved that the services were provided

Between LLC "Ts." (custodian) and LLC "S." (bailor) an agreement was concluded for the provision of services for storage and transhipment of goods.

The contract expired on December 31, 2008, but the parties' relationship regarding cargo storage continued. Later, the custodian filed a claim with the arbitration court to recover 180,618 rubles. 90 kopecks debts for storage for 2009.

The court stated: “In accordance with paragraph 4 of Article 896 of the Civil Code of the Russian Federation, if, after the expiration of the storage period, the item in storage is not taken back by the depositor, he is obliged to pay the custodian a commensurate remuneration for further storage of the item... In the absence between the parties during the disputed period of the concluded contract, evidenced by the case materials of the actual provision of services... the court lawfully applied the [custodian’s] prices for services that were in effect in 2009.”

The court satisfied the claim in full (resolution of the Federal Antimonopoly Service of the Volga District dated September 20, 2010 in case No. A06-225/2010).

Secondly, after a written warning to the bailor, the custodian may sell the thing received for storage, unless the parties have established a prohibition on such an action in the contract and the bailor is the owner of this thing. The following must be taken into account:

if the cost of an item does not exceed 100 minimum wages, then it must be sold at the price prevailing at the place of storage;
if the cost of an item is more than 100 minimum wages, then it must be sold at auction in the manner prescribed by the Civil Code of the Russian Federation.

The amount that the custodian receives from the sale of the item must be distributed as follows:

deduct amounts due to the custodian,
transfer the rest to the bailor.

In this case, the amounts due to the custodian will include not only the remuneration for storage, which the bailor did not want to pay, but also:

payment for storage until the sale of the item, unless otherwise provided by the contract (clause 4 of Article 896 of the Civil Code of the Russian Federation),
losses caused to the custodian.

Also see What a custodian can do to earn custodial rewards.

However, keepers rarely exercise their right to sell things. More often, they still turn to the arbitration court to protect their interests.

Attention! The bailor, subject to certain conditions, may reduce the amount of remuneration or even refuse to pay the custodian for his services.

Thus, the depositor can reduce the amount of remuneration in the following cases:

if he, within a reasonable time, notifies the custodian of his refusal to accept part of the custodian’s services (paragraph 2, clause 1, article 888 of the Civil Code of the Russian Federation). In this case, the depositor will have to pay only the volume of storage services actually provided (see resolution of the Federal Antimonopoly Service of the Moscow District dated April 15, 2010 No. KG-A40/2808-10 in case No. A40-104379/09-9-819);
if storage is terminated before the expiration of the stipulated period due to circumstances for which the custodian is not responsible. In this case, he will have the right only to a proportionate part of the remuneration, unless otherwise established by the contract (clause 3 of Article 896 of the Civil Code of the Russian Federation, see Resolution of the Federal Antimonopoly Service of the Volga District dated April 6, 2005 No. A49-10031/04-80/24 ).

However, if the bailor has transferred to the custodian things that are flammable, explosive or generally dangerous by nature, then he will be obliged to pay the full remuneration for storage (even if storage is terminated early), as well as to compensate for losses caused if:

he transferred for storage things with dangerous properties under the wrong name and
When accepting them, the custodian could not verify their dangerous properties by external inspection.

Moreover, in this case, the custodian has the right to neutralize or destroy these things at any time and not compensate the bailor for losses for this. On the contrary, the latter will be liable for losses that will be caused in connection with the storage of such things to the custodian and third parties (Clause 1 of Article 894 of the Civil Code of the Russian Federation).

The bailor may not pay any remuneration to the custodian if:

the depositor who has not transferred the item for storage will, within a reasonable time, notify the custodian of his refusal of the entire scope of his services (paragraph 2, clause 1, article 888 of the Civil Code of the Russian Federation);
storage was terminated early due to the fault of the custodian, unless otherwise provided by the contract (paragraph 2, paragraph 3, article 896 of the Civil Code of the Russian Federation). And if the depositor has already transferred part of the payment to the custodian, he will be able to return these amounts.

The court may also refuse to collect remuneration simply on the grounds that the custodian provided services of inadequate quality. “In the meaning of paragraph 1 of Article 896, in conjunction with the Civil Code of the Russian Federation, remuneration for services for storing a thing is subject to recovery from the bailor, subject to the proper fulfillment by the custodian of its obligations” (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated August 23, 2005 No. 1928/05, FAS Volga-Vyatka District dated April 21, 2011 in case No. A82-5243/2010).

See also How to receive remuneration from the bailor for storage.

How to reimburse storage costs

Normal storage costs are usually included in the reward amount. Therefore, the custodian needs to take into account the risk that if the bailor is exempt from paying remuneration for storage, then it is impossible to recover the costs of storage from him.

The contract can include a condition under which the bailor is obliged to pay the custodian the costs of storage in addition to the remuneration (Clause 1 of Article 897 of the Civil Code of the Russian Federation). Bailors do not always agree to this, because in this case they will be able to avoid such expenses only if the custodian does not ensure the safety of the item. There are certain disadvantages in this for the custodian, because he will have to prove that the expenses were in fact reasonable and necessary to ensure the safety of the thing (determination of the Supreme Arbitration Court of the Russian Federation dated September 17, 2010 No. VAS-11873/10).

These rules do not apply to cases where storage is free of charge. In this case, the depositor will be obliged to reimburse the custodian for the necessary expenses incurred by him for storing the thing, unless otherwise provided by law or agreement (Clause 2 of Article 897 of the Civil Code of the Russian Federation).

The Ministry of Finance suggested how to confirm the costs of disposal of goods

Denis Savilov, UNP expert

The costs of disposal of expired products are confirmed by acts and extracts from tax registers. The list of documents was clarified by the Russian Ministry of Finance in letter dated December 24, 2014 No. 03-03-06/1/66948 (response to a private request).

Food products, perfumes, cosmetics, medicines, household chemicals are goods that are allowed to be sold only during their expiration date (Article 5 of the Law of the Russian Federation dated 02/07/92 No. 2300–1). When this period expires, the product must be disposed of. This is done by the retailer or supplier from whom he purchased these goods. It all depends on the terms of the supply agreement.

The Ministry of Finance was not previously against taking into account the costs of disposal of expired goods (letter dated May 22, 2014 No. 03-03-06/1/24238). These costs can be written off as other (subclause 49, clause 1, article 264 of the Tax Code of the Russian Federation). In the commented letter, officials for the first time named documents confirming disposal costs.

If recycling is carried out by a company that has not managed to sell the goods, then the following acts are needed: on the inventory of goods, on declaring them unfit, on their destruction. And if, under the contract, the goods are disposed of by the company’s supplier, then he needs acts of acceptance of goods from the buyer and acts of destruction of these products. For both companies, expenses must be confirmed with an extract from the tax registers about the write-off of products.

It is also important to include in the purchase and sale agreement a condition that the buyer transfers expired goods to the supplier for disposal. Otherwise, inspectors may recognize the supplier’s expenses as unfounded, and the contrary can only be proven in court (resolution of the Federal Arbitration Court of the Moscow District dated April 3, 2012 No. A40-44303/11-116-125).

Disputes may also arise regarding VAT. Local tax officials are demanding that the tax be reinstated on the value of written-off goods. But there is no such basis for reinstating VAT in the code, the judges admit this (

AGREEMENT No. __

Moscow "__" _________ 201_

Limited Liability Company "____________", hereinafter referred to as the “Depositor”, represented by the General Director _______________________, acting on the basis of the Charter, on the one hand

and Limited Liability Company“_______________”, hereinafter referred to as the “Custodian”, represented by the General Director _____________________, acting on the basis of the Charter, on the other hand, and together referred to as the “Parties”, have entered into this Agreement as follows.

SUBJECT OF THE AGREEMENT. GENERAL PROVISIONS

1.1. Under this Agreement, the Custodian undertakes to accept and store _______ (hereinafter referred to as the “Thing”) transferred to him by the Bailor and to return this Thing safely. Items are stored at the following address: RF, Moscow, st. ______________. Packing and loading of the Item is carried out by the Bailor. The depositor undertakes to pay for the services under this agreement.

1.2. Storage of the Item is carried out by the Custodian from the moment the Item is transferred by the Bailor to the Custodian and claimed by the Bailor .

1.3. The transfer of the Item by the Bailor to the Custodian is certified by the issuance to the Bailor of the following document: a receipt (Appendix No. 1), which is returned to the Custodian at the end of the storage period and after the return of the Item (subject to the provisions of this Agreement).

OBLIGATIONS AND RIGHTS OF THE PARTIES

2.1. The Custodian undertakes:

2.1.1. Accept the Item at the address specified in this Agreement within _______________________ year;

2.1.2. Ensure storage of the Item for up to _____________ year at the following address: RF, ____________.

2.1.3. Take measures for the safety of the Item transferred to him, the mandatory provisions of which are provided for by law and other legal acts (fire safety, sanitary, security, etc.), as well as measures consistent with business customs and the essence of this Agreement, including the properties of the Item transferred for storage .

2.1.4. Without the consent of the Bailor, do not use the Item transferred for storage, as well as not provide the opportunity to use it to third parties, except in cases where the use of the stored Item is necessary to ensure its safety.

2.1.5. Immediately notify the Bailor of the need to change the storage conditions of the Item provided for by this Agreement, and until a response is received, do not take any action in relation to the Item, with the exception of clauses 2.2 and 2.3 of the Agreement.

2.2. If a change in storage conditions is necessary to eliminate the danger of loss, shortage or damage to the Item, the Custodian has the right to change the method, place and other conditions of storage without waiting for the Bailor’s response.

2.3. If during storage there is a real threat of damage to the Item, or the Item has already been damaged, or circumstances have arisen that do not allow its safety to be ensured, and timely action on the part of the Bailor cannot be expected, the Custodian has the right to independently sell the Item or part of it at the price prevailing in the place storage

2.4. In case of violation of the deadlines specified in clause 2.1.1. The Custodian is obliged to pay the Bailor a penalty in the amount of 0.5% for each day of delay.

2.5. The depositor undertakes to pay for the services of the Custodian in accordance with clause 4.1. of this Agreement.

TRANSFER OF ITEMS FOR STORAGE TO A THIRD PARTY

3.1. The Custodian has no right, without the consent of the Bailor, to transfer the Thing for storage to a third party, except in cases where he is forced to resort to this by force of circumstances in the interests of the Bailor and is deprived of the opportunity to obtain his consent.

3.2. The Custodian is obliged to immediately notify the Bailor about the transfer of the Item for storage to a third party.

3.3. The risk of accidental death or damage when transferring an item for storage to a third party is borne by the Custodian. When transferring the Item for storage to a third party, the terms of this Agreement remain in force.

STORAGE COSTS

4.1. The total cost of services under this Agreement is __________ (_______________________) rubles 00 kop., including VAT 18%.

4.2. Payment is made by transferring funds to the account specified in section 11 of this Agreement.

OBLIGATION OF THE BAILOR TO TAKE THE THING BACK

5.1. Upon expiration of the storage period, the Bailor undertakes to immediately pick up the Item transferred for storage.

5.2. If the Bailor fails to fulfill his obligation to take the Thing back, including if he evades receiving the Thing, the Custodian has the right, after a written warning to the Bailor, to independently sell the Thing in the manner established by the current legislation of the Russian Federation.

OBLIGATION OF THE CUSTODIAN TO RETURN THE ITEMS

6.1. The Custodian is obliged to return to the Bailor the very Thing that was transferred for storage.

6.2. The item must be returned by the Custodian in the condition in which it was accepted for storage, taking into account its natural deterioration, natural loss or other change due to its natural properties.

TERMINATION OF STORAGE AT THE DEMAND OF THE BAILOR

7.1. The Custodian is obliged, at the first request of the Bailor, to return the Item accepted for storage.

FINAL PROVISIONS

10.1. Any changes and additions, additional agreements to this Agreement are valid provided that they are made in writing and signed by duly authorized representatives of the Parties.

10.2. All notices and communications must be given in writing. Notifications and messages will be considered duly executed if they are sent by registered mail, by telegraph, teletype, telex, telefax or delivered personally to the legal (postal) addresses of the Parties with receipt against receipt by the relevant officials.

10.3. This Agreement is drawn up in two copies having equal legal force, one copy for each of the Parties.

10.4. This Agreement comes into force from the moment the Bailor transfers the Item to the Custodian and is valid until the Parties fully fulfill their obligations under this Agreement.

DETAILS OF THE PARTIES

KEEPER	BAILOR

Appendix No. 1

to contract No. ______

from _______________ year

R A S P I S K A

Moscow"__" _________ 201_

Limited Liability Company«____________________» , hereinafter referred to as the “Custodian”, represented by the General Director _________________________________, acting on the basis of the Charter, accepted, Limited Liability Company "_____________", hereinafter referred to as the “Depositor”, represented by the General Director ___________________________, acting on the basis of the Charter, transferred the following Items:

What is the procedure for accounting and tax accounting of lost property transferred for safekeeping, as well as amounts received as compensation for its value by the organization that owns the property?

On this issue we take the following position:

The amount of VAT accepted for deduction by the depositor organization in relation to the property transferred for safekeeping should not be included in the amount of loss subject to compensation by the custodian organization.
In accounting, lost property in the month of inventory is written off by the depositor to the account of shortages and then attributed to settlements with the culprit.

When funds are received from the custodian in accounting, income from the bailor is generated if the bailor is owed an amount greater than the actual value of the lost property.

When the custodian organization files a cassation appeal in court, there are prerequisites for qualifying this fact in the accounting of the depositor organization as a contingent asset.

Information about the contingent asset is provided in the notes to the balance sheet.

For profit tax purposes, the amount of loss in the form of the value of the property lost by the custodian is reflected in non-operating expenses while simultaneously reflecting in non-operating income the amount of compensation for the specified loss in accordance with the settlement agreement.

If the court makes a decision to reduce the amount of damage, previously recognized income is subject to reduction.

Justification for the position:

In accordance with paragraph 1 of Art. 886 of the Civil Code of the Russian Federation, under a storage agreement, one party (custodian) undertakes to store the thing transferred to it by the other party (bailor) and return this thing safely.

The custodian is obliged to store the thing for the period stipulated by the contract (clause 1 of Article 889 of the Civil Code of the Russian Federation).

According to paragraph 1 of Art. 902 of the Civil Code of the Russian Federation, as a general rule, losses caused to the bailor by loss, shortage or damage to things are compensated by the bailee.

Based on paragraph 1 of Art. 15 of the Civil Code of the Russian Federation, a person whose right has been violated may demand compensation for losses caused to him, unless the law or contract provides for compensation for losses in a smaller amount. Losses are understood as expenses that a person whose right has been violated has made or will have to make to restore the violated right, loss or damage to his property (real damage), as well as lost income that this person would have received under normal conditions of civil circulation if his right was not violated (lost profit) (clause 2 of article 15 of the Civil Code of the Russian Federation).

The amount of losses incurred by an organization is not made dependent by civil law on whether it exercised the right to deduct VAT amounts in accordance with tax legislation. There are currently no restrictions for including the amounts of VAT paid to suppliers in the total amount of losses incurred (see, for example, the decisions of the Eighteenth Arbitration Court of Appeal dated November 12, 2012 N 18AP-10470/12, the Fifteenth Arbitration Court of Appeal dated 04/05/2012 N 15AP-2585 /12, Ninth Arbitration Court of Appeal dated June 24, 2010 N 09AP-12587/2010).

In a number of cases, some judges take the position that the amount of loss in the form of VAT, if it is part of the price (value) of the property subject to compensation, must be reimbursed by the counterparty responsible for these losses in full (see, for example, the decisions of the Federal Antimonopoly Service of the Ural District dated 08/14/2012 N Ф09-6939/12, dated 06/28/2011 N Ф09-3136/11-С5, dated 04/08/2011 N Ф09-1173/11-С5, FAS North-Western District dated 06/22/2012 in case N А56 -44279/2011, dated 02.22.2011 in case No. A21-8004/2009).

At the same time, the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 23, 2013 N 2852/13 notes that losses in the form of expenses, including VAT, can be reimbursed to the victim if the latter proves that the tax amounts presented to him represent his uncompensated losses. According to the judges, the existence of the right to deduct VAT amounts established by Art. 171 of the Tax Code of the Russian Federation, excludes a reduction in the property sphere of the person who suffered damage, and, accordingly, in this case excludes the application of Art. 15 Civil Code of the Russian Federation. The judges of the Supreme Arbitration Court of the Russian Federation concluded that a person entitled to a deduction must be aware of its existence, must comply with all legal requirements to obtain it, and cannot shift the risk of non-receipt of the corresponding amounts to his counterparty.

Thus, an organization does not have the right to demand compensation for losses taking into account the amount of VAT if it has the right to deduct the amount of tax, which excludes a decrease in its property scope. Reimbursement of the amount of VAT by the person who caused the damage and receipt of a tax deduction from the budget lead to the unjust enrichment of the “victim” by receiving the tax twice - from the budget in the form of a tax deduction and from its counterparty in the form of compensation for damage.

In turn, in the resolution of the Ninth Arbitration Court of Appeal dated June 19, 2013 N 09AP-14309/13, the judges, taking into account the fact that VAT amounts were accepted for deduction, also came to the conclusion that there was no evidence that the plaintiff incurred losses in terms of VAT, since the specified The plaintiff has already submitted the amount of VAT for deduction (see also the decisions of the First Arbitration Court of Appeal dated July 28, 2016 N 01AP-3234/16, the Eleventh Arbitration Court of Appeal dated May 26, 2016 N 11AP-5006/16).

In this regard, we take the position that the amount of VAT should not be included in the amount of loss to be received by the depositor if it was previously accepted by the depositor for deduction.

As an example of including VAT amounts in the amount of the declared loss (if it is impossible to exercise the right to deduct), one can cite the decision of the Thirteenth Arbitration Court of Appeal dated 09.09.2016 N 13AP-14649/16. The company applied a simplified taxation system, therefore, by virtue of Art. 346.11 of the Tax Code of the Russian Federation was not a VAT payer and did not have the right to a refund of paid VAT due to the requirements of Chapter 21 of the Tax Code of the Russian Federation. Therefore, according to the judges, the amounts of VAT paid to counterparties in connection with the storage of goods as a result of an unlawful delay in the release of goods by the customs authority cannot be compensated to the applicant from other sources and are legally included by the latter in the amount of the claimed losses.

The accounting legislation does not contain any special rules regulating the accounting of property transferred for safekeeping.

However, the conditions with which PBU 10/99 connects the recognition of expenses, in our opinion, did not occur in the analyzed situation.

Thus, paragraph 16 of PBU 10/99 provides that expenses are recognized in accounting, in particular, if there is confidence that as a result of a specific transaction there will be a decrease in the economic benefits of the organization. There is certainty that a reduction in economic benefits will result from a particular transaction when an entity has transferred an asset or there is no uncertainty about the transfer of an asset.

If a settlement agreement is concluded, the bailor has no confidence in the reduction of economic benefits, since the custodian assumed compensation for losses and even partially made them. Therefore, neither on the date of discovery of the shortage, nor on the date of conclusion of the settlement agreement, in our opinion, expenses in the form of the value of the lost property have not yet arisen. After refusal to execute the settlement agreement, there is also a possibility that the custodian will compensate for the losses incurred, since, as we believe, the reason for the refusal is not the obligation to compensate for losses itself, but the procedure for their calculation, which provides for the inclusion of VAT amounts (as can be seen from the Cassation Appeal). Even if we assume that this reason for refusing to execute the settlement agreement only masks the reluctance of the custodian to compensate for losses, the likelihood that the court will oblige him to do so exists. This means that even when the settlement agreement ceases to be actually executed and the custodian files a cassation appeal, the reduction in the economic benefits of the bailor is not yet obvious. Therefore, we take the position that if the custodian loses the property of the bailor, the latter has no certainty regarding the reduction of his economic benefits until the court makes an appropriate decision.

Thus, if the outcome of the trial is positive for the bailor, the custodian compensates for the losses incurred by the bailor. In this regard, we believe that when writing off lost property from the balance sheet, no expense (other expense reflected in the account) for accounting purposes arises.

At the same time, if the outcome of the trial is different (for example, compensation for losses is denied), the bailor experiences a decrease in economic benefits in terms of the value of the lost property, since the custodian will not compensate him for losses. Therefore, lost property in this case will be taken into account in accounting as other expenses. We believe that in this case, the date of reflection of such expenses will be the period of the court’s decision to refuse compensation for damages.

From clause 27 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 (hereinafter referred to as the Regulations), clause 1.5 of the Methodological guidelines for the inventory of property and financial obligations, approved by order of the Ministry of Finance of Russia dated June 13 .1995 N 49 (hereinafter referred to as the Methodological Instructions), paragraph 22 of the Methodological Instructions N 119n follows that the organization must carry out an inventory of property, in particular, in cases of theft, abuse or damage to property (see also the letter of the Ministry of Finance of Russia dated 25.12 .2015 N 07-01-12/76134).

Based on the results of the inventory, the property to be written off is determined, as well as the actual amount of damage incurred.

Instructions for the use of the chart of accounts for accounting financial and economic activities of organizations, approved by Order of the Ministry of Finance of Russia dated October 31, 2000 N 94n (hereinafter referred to as the Instructions), indicate that in order to summarize information on the amounts of shortages and losses from damage to material and other assets identified in the process their procurement, storage and sale, regardless of whether they are subject to attribution to the accounts of production costs (sales costs) or the perpetrators, account 94 “Shortages and losses from damage to valuables” is intended. The debit of the account reflects, in particular, the actual cost of completely damaged inventory items.

Taking into account the above, we believe that, based on the inventory carried out, the actual value of the lost property is written off as a debit to the account, that is, the entry “Debit Credit ()” is made - until the economic entity has grounds to cover the shortage from appropriate sources.

Thus, paragraph 128 of Methodological Instructions No. 119n establishes that, depending on the specific causes of losses, the actual cost of materials is subject to write-off from the credit of the “Shortages and losses from damage to valuables” account to the debit of the accounts for accounting for production costs or (expenses), calculations for damages, financial results. Let us repeat, before the court makes a decision to refuse compensation for losses, in our opinion, there is no basis for including the cost of lost fuel as other expenses (that is, to the expense account), which means that the settlement account for damages (losses) will correspond with the account ).
Based on clause 5.1 of the Methodological Instructions and clause 30 of the Regulations, the shortage identified during the inventory is attributed to the guilty parties (custodian organization).

Therefore, upon the fact of inventory, the following entry is also made in the depositor’s accounting:

Debit Credit
- the custodian's debt for compensation of losses is reflected.

Clause 5.5 of the Methodological Instructions determines that the results of the inventory must be reflected in the records of the month in which the inventory was completed. In this regard, we believe that the above entries are made in the month of the inventory (at its completion). That is, the disposal of assets is reflected in accounting not in the period when their theft or damage is revealed, but in the period when the audit was completed, confirming the shortage, that is, upon completion of the inventory.

All forms of primary accounting documents are determined by the head of the economic entity, and are developed by the person entrusted with accounting (Part 4, Article 9 of the Federal Law of December 6, 2011 N 402-FZ “On Accounting” (hereinafter referred to as Law N 402- Federal Law)). Thus, Law No. 402-FZ does not provide for the mandatory use of forms of primary accounting documents that are contained in albums of unified forms. However, when developing their own forms, organizations can use unified forms approved by the State Statistics Committee of Russia as a model. Forms developed by the organization are accepted for accounting if they contain the mandatory details specified in Part 2 of Art. 9 of Law No. 402-FZ.

So, the inventory results are documented in documents determined by the head of the organization. When developing them, the forms approved by the resolutions of the State Statistics Committee of Russia dated August 18, 1998 N 88 and dated March 27, 2000 N 26 can be taken as a basis.

In general, the documents that serve as the basis for recording the disposal of assets as a result of their theft, damage, shortage, are, in particular, documents for recording inventory results, such as an order (resolution, instruction) to conduct an inventory (form N INV-22 ); inventory list of inventory items (Form N INV-3); matching statement (form N INV-19); statement of accounting of the results identified by the inventory (Form N INV-26).

We believe that the fact of loss of property by the custodian can be equated to shortages, thefts, and losses identified in the organization independently. Indeed, in fact, the shortage of goods transferred for safekeeping is unlikely to differ from the shortage of goods stored in the organization itself, since the ownership of both belongs to the organization. Inventory lists and matching sheets, if these forms are provided for by the accounting policy of the organization for use when conducting inventory, in our opinion, should be drawn up (see also the material: Encyclopedia of Solutions. Accounting for the disposal of goods as a result of theft, damage, shortage).

As a general rule, proceeds to compensate for losses caused to the organization are taken into account as part of other income (clause 8 of PBU 9/99 “Income of the organization” (hereinafter referred to as PBU 9/99)). Such income by virtue of paragraphs. 10.2, 16 PBU 9/99 are accepted for accounting in amounts awarded by the court or recognized by the debtor in the reporting period in which the court made a decision on their collection or they were recognized by the debtor.

At the same time, as established in paragraph 2 of PBU 9/99, income is recognized as an increase in economic benefits as a result of the receipt of assets (cash, other property) and (or) repayment of liabilities, leading to an increase in the capital of this organization.

However, in the case of compensation for damage by the guilty party, in our opinion, there is no increase in economic benefits, since, let’s say in simple terms, as a result of such an operation, the organization’s expenses for the acquisition of lost goods are only compensated. At the same time, if the depositor organization is awarded an amount greater than the actual value of the lost property, then such a difference will be taken into account as part of other income. The following entry will be made in the accounting:

Debit Credit, subaccount "Other income"
- the difference is taken into account as part of other income (in the reporting period of the court decision).

This method of reflecting amounts of compensation for damage is consistent with the method proposed above for reflecting property lost by the owner (that is, when, at the completion of the inventory, other expenses are not reflected, since the decrease in economic benefits is not yet obvious, and the cost of lost fuel is included in settlements with the custodian). Accordingly, if the court obliges the custodian to compensate for damage, other income is also not reflected in the amount of the lost, but only the amount in excess of the actual value of the lost valuables is reflected.

Debit Credit
- funds have been received from the custodian.

We believe that transactions for voluntary compensation of damage by the bailor on the basis of a settlement agreement are reflected in a similar way. Other income will be reflected in accounting only if payments are made (the damage is recognized by the custodian) in amounts greater than the actual value of the missing property. Since payments in the settlement agreement were provided for in several stages, if the value of the property, determined by an independent appraiser, exceeds its actual value, the question arises about the procedure for recognizing the above difference in the composition of income. Should it be recognized as a lump sum after receiving compensation in full, or should it be included in other income in proportion to the payment received?

Neither PBU 9/99 nor the Instructions provide an answer to this question. We take the position that it is permissible to recognize this income proportionally, based on what part of the cost of the lost property was paid (compensated) in the first two payments. It is difficult to give an unambiguous recommendation for such a case, but the essence of what is happening is clear - other income in accounting should be reflected in the amount that exceeds the actual cost of the lost. The methodology used should be fixed in the accounting policy (clause 7 of PBU 1/2008 “Accounting policy of the organization”).

Let's illustrate with a hypothetical example.

Let us assume that the actual value of the property lost by the custodian is 100 rubles. (excluding VAT), the value of this property determined by the appraiser is 120 rubles. The custodian compensates for the damage in two equal payments.
The following entries can be made in the accounting of the depositor organization:

Debit Credit (41, 43, ...)
- 100 rub. - as of the end date of the inventory, the value of the lost property is reflected;

Debit Credit
- 100 rub. - the value of the property is included in settlements with the custodian;

Debit Credit
- 20 rub. - on the basis of a settlement agreement, the custodian recognized the damage in the amount of an independent assessment, therefore the bailor takes into account the difference as part of future income;

Debit Credit
- 60 rub. - the first payment has been received;

Debit Credit
- 10 rub. - an amount proportional to the payment received is recognized as other income;

Debit Credit
- 60 rub. - the second payment has been received from the custodian;

Debit Credit
- 10 rub. - an amount proportional to the second payment is recognized as other income.

This is how the situation would have developed if the amount of the shortfall had been fully reimbursed. However, in the situation under analysis, the custodian filed a cassation appeal without compensating the damage in full. Therefore, we believe that other income will not be recognized in full in the accounting of the depositor organization at present. In this case, the account will include a credit balance in the amount attributable to the unreimbursed cost of the lost fuel (in the amount of excess of the estimated cost of the missing fuel over its actual cost).

If the court decision on the cassation appeal is made in the current year and the amount due to be received by the depositor is reduced (for example, to the actual cost of fuel), then we believe that the initial entry “Debit Credit” is subject to adjustment (reduction):

Reversal Debit Credit
- the difference between the amount of damage and the amount payable by the custodian by court decision has been reduced (in whole or in part).

If a similar decision is made next year, then there are no grounds for making corrections to the accounting records in 2016, since the amount initially reflected in the account is incorrect in the sense of clause 2 of PBU 22/2010 “Correcting errors in accounting and reporting” is not , it is reflected on the basis of a settlement agreement, which has not yet been cancelled, and the filing of a Cassation Appeal by the custodian, in our opinion, is not yet a basis for reflecting adjustments in the 2016 accounting. Therefore, in our opinion, if the court makes a decision next year, it would be advisable to make an entry in the accounting:

Debit Credit
- on the basis of a court decision, the difference between the amount of damage and the amount payable by the custodian by court decision has been reduced.

Regarding the application of the provisions of PBU 8/2010 “Estimated liabilities, contingent liabilities and contingent assets” (hereinafter referred to as PBU 8/2010), we reason as follows.

PBU 8/2010 establishes the procedure for reflecting estimated liabilities, contingent liabilities and contingent assets (clause 1 of PBU 8/2010).

Based on clauses 5, 9 PBU 8/2010 we come to the conclusion that in the analyzed situation the bailor organization does not have any estimated and contingent obligations (since the bailor does not have any obligations (liabilities) resulting from past events (on the contrary, the obligation to compensate for damage arise from the custodian who made the shortage)).

In turn, clause 13 of PBU 8/2010 determines that a contingent asset arises in an organization as a result of past events in its economic life, when the existence of an asset in the organization at the reporting date depends on the occurrence (non-occurrence) of one or more future uncertain events beyond the control of the organization .

PBU 8/2010 associates the emergence of a contingent asset primarily with an increase in economic benefits, and, as we discussed above, economic benefits can be considered income in the amount of excess compensation amounts over the actual cost of lost inventories. Therefore, it is worth talking about a contingent asset if such a “delta,” let’s call it that, occurs. But even if it exists, in a situation where a settlement agreement is concluded and executed, there is no uncertainty in obtaining economic benefits - the amount of the “delta” is determined, payments are received regularly.

If a cassation appeal is filed in court regarding the amount of damage caused to the depositor, in our opinion, there are prerequisites for recognizing a contingent asset in accounting, since, firstly, it arises for the organization as a result of past events in its economic life (loss of property); secondly, it depends on the occurrence (non-occurrence) of one or more future uncertain events that are not directly controlled by your organization (a court making an appropriate decision, establishing the amount of compensation).

Therefore, in our opinion, the emergence of a contingent asset can be discussed in the period from the date of filing the complaint until the date the court makes the relevant decision. After the court makes a decision on the cassation appeal, uncertainty no longer exists (the amount of economic benefit can be determined, the person responsible for the shortage is ordered to compensate for the damage). Consequently, the conditions for the emergence of a contingent asset are no longer met. For example, if the court makes a decision in 2016, then there will no longer be uncertainty in the amount of receipt and the payment period, which means there will be no conditions for recognizing a contingent asset.

Contingent assets are not recognized separately in accounting. Information about them is disclosed in the financial statements (clause 14 of PBU 8/2010). In this regard, we believe that no additional entries are currently being made in the accounting of the depositor organization.

In turn, paragraph 27 of PBU 8/2010 establishes that if the flow of economic benefits from a contingent asset is probable, the organization must disclose at the end of the reporting period the nature of the contingent asset, as well as its estimated value or range of estimated values, if they are definable.

Above, we came to the conclusion that economic benefit is the excess of the amount of compensation over the amount of the actual value of the assets. It is this amount, provided that its receipt, in the opinion of the organization, is probable, should be disclosed in the notes to the financial statements. As we see, the need to disclose information about the contingent asset at the end of 2016 is due to several factors, in particular, the presence of economic benefit (“delta”) and the date of the court’s decision (in 2016 or 2017 (after all, after it is made, uncertainty in the receipt of economic benefits disappears)).

Since what has been said is only our expert opinion, the organization has the right to be guided by a different point of view.

Passed on

Accepted

According to paragraph 1 of Art. 252 of the Tax Code of the Russian Federation for the purposes of Chapter 25 of the Tax Code of the Russian Federation, expenses are recognized as justified and documented expenses incurred by the taxpayer, and in cases provided for in Art. 265 of the Tax Code of the Russian Federation - losses incurred by him.

The norms of Chapter 25 of the Tax Code of the Russian Federation provide for the following cases of including losses in the form of property losses in expenses when taxing profits:

in the form of a shortage of material assets in production and in warehouses, at trading enterprises in the absence of perpetrators, as well as losses from theft, the perpetrators of which have not been identified (clause 5, clause 2, article 265 of the Tax Code of the Russian Federation);

losses from natural disasters, fires, accidents and other emergencies (clause 6, clause 2, article 265 of the Tax Code of the Russian Federation).

As we can see, from the literal interpretation of these provisions we can conclude that if the guilty person (as in the situation under analysis) is identified, then the amount of losses incurred by the organization in the form of the value of lost property is not taken into account for tax purposes.

Meanwhile, it should be taken into account that contained in Art. 265 of the Tax Code of the Russian Federation, the lists of non-operating expenses and losses equivalent to them are open. In this regard, we believe that the bailor has the right to take into account non-operating expenses on the basis of paragraphs. 20 clause 1 art. 265 of the Tax Code of the Russian Federation, the amount of loss in the form of the value of property transferred for safekeeping and lost by the custodian, while simultaneously reflecting in non-operating income the amount reimbursed by the custodian voluntarily or in court.

In a number of their letters, representatives of the financial department gave similar explanations (letters of the Ministry of Finance of Russia dated December 1, 2014 N 03-03-06/1/61216, dated July 20, 2009 N 03-03-06/1/480, see also the material: Question: The organization transferred the goods for safekeeping. During the inventory, a shortage of goods was revealed. The custodian recognized the shortage and compensated for the losses. How to reflect these transactions in tax accounting? ("Income tax: accounting for income and expenses", No. 3, March 2015) ).

At the same time, we do not exclude that such an approach to accounting for losses from loss of property may cause disagreements with the tax authorities.

Unfortunately, we have not found any court decisions that apply to your situation.

Amounts of compensation for losses (damage) found guilty or subject to payment on the basis of a court decision that has entered into legal force are recognized as non-operating income of the taxpayer by virtue of the direct rule of paragraph 3 of Art. 250 Tax Code of the Russian Federation. The date of receipt of this type of income when applying the accrual method is the date of entry into force of the court decision or the date of recognition by the debtor (clause 4, clause 4, article 271 of the Tax Code of the Russian Federation).

In relation to the situation under consideration, this means that the income of the bailor organization should be recognized on the date the court approves the settlement agreement.

However, in your case, the custodian organization filed a cassation appeal in court in order to reduce the amount of damage. The court's decision to reduce the amount of damages to be compensated, in our opinion, provides grounds for a corresponding reduction by the bailor of previously recognized non-operating income. In other words, he must adjust his tax obligations for corporate income tax by submitting updated tax returns (of course, if changes in amounts occur outside the reporting (tax) period and the corresponding declarations have already been submitted).

At the same time, it should be noted that according to paragraph 3 of clause 1 of Art. 54 of the Tax Code of the Russian Federation, the taxpayer has the right to recalculate the tax base and the amount of tax for the tax (reporting) period in which errors (distortions) relating to previous tax (reporting) periods were identified, in cases where the errors (distortions) led to excessive payment tax

Excessive payment of corporate income tax can also be caused by previously excessively taken into account non-operating income.

The subsequent reduction by the court of the amount of damage leads to a decrease in the previously recognized non-operating income of the depositor, resulting in a distortion of the tax base for corporate income tax for the previous reporting (tax) period, which led to the excessive payment of this tax. Therefore, the depositor has the right to adjust the tax base for corporate income tax in the current period, reflecting non-operating expenses in the appropriate amount.

We were unable to find any explanations from the official authorities regarding your situation. Indirectly supporting our position is the letter of the Ministry of Finance of Russia dated June 23, 2010 N 03-07-11/267. In it, representatives of the financial department came to the conclusion that it is possible for the seller to recognize an expense in the current period in the amount of the discount provided to the buyer for previous periods.

Prepared answer:
Expert of the Legal Consulting Service GARANT
auditor, member of RSA Zavyalov Kirill

Response quality control:
Reviewer of the Legal Consulting Service GARANT
auditor, member of RSA Melnikova Elena

September 23, 2016

The material was prepared on the basis of individual written consultation provided as part of the Legal Consulting service.