Article 855 of the Civil Code of the Russian Federation. About the order of debiting funds from the bank

Yurguru.ru / Civil Code of the Russian Federation / Chapter 45. Bank account / Article 855. Sequence of debiting funds from the account

Civil Code of the Russian Federation. Chapter 45. Bank account

Article 855. Sequence of debiting funds from the account

1. If there are funds on the account, the amount of which is sufficient to satisfy all the requirements presented to the account, these funds are written off from the account in the order in which the client’s orders and other documents for write-off are received (calendar priority), unless otherwise provided by law.

2. If there are insufficient funds in the account to satisfy all demands placed on it, funds are written off in the following order:

first of all, write-offs are carried out according to executive documents providing for the transfer or issuance of funds from the account to satisfy claims for compensation for harm caused to life and health, as well as claims for the collection of alimony;

secondly, write-offs are made according to executive documents providing for the transfer or issuance of funds for settlements for the payment of severance pay and wages with persons working under an employment contract, including a contract for the payment of remuneration to the authors of the results of intellectual activity;

in the third place, write-offs are made for payment documents providing for the transfer or issuance of funds for settlements of wages with persons working under an employment agreement (contract), as well as for contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation and compulsory medical funds insurance;

in the fourth turn, write-offs are made on payment documents providing for payments to the budget and extra-budgetary funds, deductions to which are not provided for in the third turn;

fifthly, write-offs are made according to executive documents providing for the satisfaction of other monetary claims;

sixthly, write-offs are made for other payment documents in calendar order.

Debiting funds from the account for claims related to one queue is carried out in the calendar order of receipt of documents.

Article 855 of the Civil Code of the Russian Federation Sequence of debiting funds from the account- the full text of the document with comments from lawyers and the opportunity to exchange opinions with legal professionals, ask questions or express your opinion regarding articles of regulatory legal acts, study comments from colleagues.

Other articles Chapter 45. Bank account.

bank accounts

Payment sequences - changes in filling out details 21

When opening a settlement or current account in a bank, about order of payments (sequence of debiting funds) no one thinks about the account - everyone is determined to work without financial problems. And yet, everyone becomes familiar with the concept of “order of payments” and occurs the first time they fill out a payment order or payment request. So what is “payment order” and where is it entered?

Payment order - definition

Payment order- this is the sequence established in the Civil Code of the Russian Federation for the bank to write off funds from customer accounts based on received orders (settlement documents), the payment period for which has already arrived or is due on the day they are received by the bank.

The payment queue does not depend on the types of orders received by the bank (payment orders, payment requests, collection orders, ...) to the client’s account, but depends on the availability of funds in this account and their sufficiency to pay for all received settlement (payment) documents.

Where and what symbols indicate the order of payment

The order of payment is indicated in all types of customer orders. Thus, according to Bank of Russia Regulation No. 383-P dated June 19, 2012 “On the rules for transferring funds,” the order of payment (21 details number) is indicated in the following types of customer orders:

In the payment order (See the form in Appendices No. 2 and No. 3 of the Regulations)
In the collection order (See the form in Appendices No. 4 and No. 5 of the Regulations)
In the payment request (See the form in Appendices No. 6 and No. 7 of the Regulations)
In the payment order (See the form in Appendices No. 9 and No. 10 of the Regulations)

21 props number(field number 21), reflecting the “order of payment” - is indicated in the payment document with only one digit in accordance with federal law (Civil Code of the Russian Federation) or is not indicated in cases established by the Bank of Russia.

Since December 14, 2013, the order of payments has been established - 5(from the first to the fifth), and the payment document always contains one of these five queues - the amendment to the Civil Code of the Russian Federation was introduced by Federal Law of December 2, 2013 N 345-FZ. The same Federal Law abolished 6 priority of payment.

Payment documents are accepted by banks for execution with the mandatory completion of all details, which includes filling out 21 details, so a payment document without this detail from a client is practically not accepted by the bank for execution.

The procedure for making payments and existing types of priority of payments

Article 855 of the Civil Code of the Russian Federation dated January 26, 1996 N 14-FZ establishes two fundamental priorities for writing off funds from the client’s account and describes the procedure for making payments:

Calendar order of payments- if there are funds in the client’s account, the amount of which is sufficient to satisfy all the requirements for the account, that is, banks write off funds from the account in the order in which the client’s orders and other documents for debiting are received.

Sequence of payments (in the sequence established by law)- if there are insufficient funds in the account to satisfy all the requirements presented to it, the order of debiting funds established by paragraph 2 of Article 855 of the Civil Code of the Russian Federation is applied.

But, regardless of what payment procedure is used, field 21 must be filled in in payment documents (orders).

Sequence of payment (in the sequence established by law)

In accordance with paragraph 2 of Article 855 of the Civil Code of the Russian Federation (as amended by the Federal Law of December 2, 2013 N 345-FZ), funds are written off if there are insufficient funds in the account to satisfy all the requirements presented to it, is carried out by banks in the next order:

First of all (payment order 1)– according to executive documents providing for the transfer or issuance of funds from the account to satisfy claims for compensation for harm caused to life and health, as well as claims for the collection of alimony;

Secondly (payment priority 2)– according to executive documents providing for
transfer or issuance of funds for settlements for the payment of severance pay and wages with persons working or who worked under an employment agreement (contract), for the payment of remuneration to the authors of the results of intellectual activity;

In third place (payment order 3)– according to payment documents providing for the transfer or issuance of funds for settlements of wages with persons working under an employment agreement (contract), instructions from tax authorities to write off and transfer debts for the payment of taxes and fees to the budgets of the budget system of the Russian Federation, as well as instructions bodies monitoring the payment of insurance premiums for writing off and transferring the amounts of insurance contributions to the budgets of state extra-budgetary funds;

In the fourth place (payment order 4)- according to executive documents providing for the satisfaction of other monetary claims;

In the fifth place (payment order 5)– for other payment documents in calendar order.

Debiting funds from the account according to requirements, related to one payment queue, is carried out in the calendar order in which documents are received by the bank.

If there are insufficient funds in the account, the account manager has only a limited opportunity to regulate the order of making those payments that arrived on the same day and fell into the same queue.

In payment documents, the order of payment (in field 21) is always indicated, although from all of the above we can conclude that the calendar order of payments is applied in the following cases:

when there are enough funds in the account for all payments;
within each (one) priority of payment when there are insufficient funds;
when making all payments of the fifth priority.

So, from December 14, 2013, the number of payment queues decreased from 6 to 5 in accordance with the amendments introduced by Federal Law of December 2, 2013 N 345-FZ “On Amendments to Article 855 of Part Two of the Civil Code of the Russian Federation.”

2. If there are insufficient funds in the account to satisfy all demands placed on it, funds are written off in the following order:

first of all, according to executive documents providing for the transfer or issuance of funds from the account to satisfy claims for compensation for harm caused to life or health, as well as claims for the collection of alimony;

secondly, according to executive documents providing for the transfer or issuance of funds for settlements for the payment of severance pay and wages with persons working or who worked under an employment agreement (contract), for the payment of remuneration to the authors of the results of intellectual activity;

thirdly, according to payment documents providing for the transfer or issuance of funds for settlements of wages with persons working under an employment agreement (contract), instructions from tax authorities to write off and transfer debts for the payment of taxes and fees to the budgets of the budget system of the Russian Federation, and also instructions from the bodies monitoring the payment of insurance premiums to write off and transfer the amounts of insurance contributions to the budgets of state extra-budgetary funds;

fourthly, according to executive documents providing for the satisfaction of other monetary claims;

fifthly according to other payment documents in calendar order.

Debiting funds from the account for claims related to one queue is carried out in the calendar order of receipt of documents.

Comments to Art. 855 Civil Code of the Russian Federation

1. Sequence of payments - the sequence determined by law for debiting funds from bank accounts according to several payment documents, the payment deadline for which has already arrived. Article 855 of the Civil Code establishes two rules for determining the priority of payments from accounts belonging to both clients and credit institutions.

The first refers to those cases when the account balance allows you to fully settle all claims made against the account. In this situation, the payment documents presented to the account must be paid in the order of the calendar order of payments, i.e. in the order in which they are received by the payer’s bank (payment is due). Exceptions to this rule may be provided by law, which does not yet exist.

2. The second rule will change if there are insufficient funds in the payer’s account to satisfy all the requirements presented to him. For this case, the article establishes six payment priority groups. The first, second and fifth stages include certain requirements, the validity of which is confirmed by the relevant executive document (Article 339 of the Civil Code). Similar claims that are not based on a writ of execution are subject to payment in sixth place.

3. Documents not paid on time due to lack of funds in the account are placed by the bank in a file cabinet in off-balance sheet account No. 9929 “Settlement documents not paid on time” (card file No. 2). In the event of a change in the legislation on the priority of payments, documents located in card file No. 2 and not paid on the date of entry into force of the relevant law must in the future be paid only taking into account the new priority of payments, and card file No. 2 must be properly revised.

4. Payments assigned to a specific group must be made after full repayment of all previous groups. In accordance with the letter of the Central Bank of the Russian Federation dated 01.03.96 N 245, debiting funds from the account for claims relating to one queue is carried out in the calendar order of receipt of documents or the occurrence of payment deadlines. This regulatory act does not determine the sequence in which payment documents assigned to one queue must be paid if, by law, they must be submitted to the bank at the same time (wages, payments to the Pension Fund of the Russian Federation, income tax, payments to the Social Insurance Fund of the Russian Federation and the State Employment Fund of the Russian Federation) . This problem has been partially solved by clause 31 of the State Tax Service Instruction dated June 29, 1995 No. 35 “On the application of the Law of the Russian Federation “On Personal Income Tax” and clause 50 of the USSR State Bank Instruction dated November 26, 1984 No. 27 “On the cash execution of the state budget of the USSR.” These regulations establish the following: If there are not enough funds in the employers' account necessary to pay wages in full and transfer the withheld income tax to the budget, then the tax is transferred to the budget in an amount proportional to the amount of funds paid to individuals for wages. payment orders for the transfer of withheld income tax in the column "Purpose of payment" it is indicated that taxes are transferred in amounts proportional to the balance of funds in the account. Payment orders for the transfer of social insurance contributions are issued by payer organizations in full. These orders are executed by banks after full satisfaction of the requirements for wages and transfer of taxes withheld from wages.

5. In the second and third place, payment documents on the issuance or transfer of funds for wages are subject to payment. The list of payments included in the concept of “wages” should be determined on the basis of Instruction of the State Statistics Committee of the Russian Federation dated July 10, 1995 N 89 “On the composition of the wage fund and social payments.”

6. In practice, the question often arises of which document should be placed in file cabinet No. 2 if the client’s account does not have the funds necessary to issue funds for wages. In a letter dated November 19, 1996 No. 17-2-11/978, the Department of Methodology and Organization of Settlements of the Central Bank of the Russian Federation explained that in this case, a client’s application for the issuance of funds indicating the terms for which wages are paid can be placed in file cabinet No. 2.

7. Rule paragraph 2 of Art. 855 of the Civil Code is used to determine the priority of payments for the debts of the account owner. Therefore, it should not be used in cases where the employer’s account is used to pay the debts of its employee. The transfer of these payments can be entrusted to the organization by legislation (alimony under writs of execution, income tax, payments to the Pension Fund) or by order of the employee (voluntary alimony, payments for goods purchased on credit, etc.). The question arises in what order the corresponding settlement documents should be paid. If these deductions from the employee’s salary had not been made, he would have received the amounts due to him in the third place and would have had the opportunity to pay his debts on his own. Therefore, it would be illogical to make such payments in the sixth place. Consequently, the amounts of deductions made by the employer from the employee’s salary must be transferred to the same queue as funds for wages, i.e. to the third. The only exceptions are transactions involving the transfer of alimony amounts on the basis of writs of execution - the first stage.

8. In practice, there are many cases when tax inspectorates make demands on taxpayers and their banks to transfer taxes not in the fourth place, but in the first place. They base their claims on the norm of the joint letter of the Ministry of Finance of the Russian Federation (N 76), the State Tax Service of the Russian Federation (N VG-6-09/597) and the Central Bank of the Russian Federation (N 318) dated 08.22.96. Meanwhile, this letter contradicts paragraph 2 of Art. 855 of the Civil Code and therefore is not subject to application (see Resolutions of the State Duma of October 11, 1996 N 682-II GD and N 683-II GD // RG. 10.22.96).

9. Practitioners often experience quite serious difficulties when determining the order of debiting from the account the amounts of penalties to be paid into the budget and extra-budgetary funds. These sanctions can be considered as a “payment” or “deduction” to the budget or to the corresponding extra-budgetary fund, which is discussed in paragraph. third and fourth paragraph 2 of Art. 855 GK. Therefore, these amounts must be transferred to the same queue to which the urgent payment or arrears are to be transferred (i.e., respectively, to the third or fourth, and not to the sixth priority).

10. The order of payments established by Art. 855 of the Civil Code, applies only to non-cash payments, incl. when foreclosure is applied to the debtor's non-cash funds. When foreclosure is applied to other property of the debtor, the order established by Art. Art. 420 - 423 Civil Procedure Code. If a legal entity is declared bankrupt, payments from its account are made in the order provided for in Art. 64 Civil Code.

11. If the payer has several accounts in the same bank, the order of payments established by Art. 855 of the Civil Code, applied to each account separately.

It is a sequence of withdrawal of finances for several documents whose maturity date has arrived. The norm provides two rules for its determination. Let us next consider Article 855 of the Civil Code of the Russian Federation in the new edition.

General rules

If there is an amount on the account sufficient to pay off all the claims presented, withdrawals are made in the order in which administrative and other documents are received. This order of debiting funds from the account is called calendar. This rule applies unless otherwise provided by law. If the amount is insufficient, another deadline for fulfillment of obligations is established.

Non-calendar sequence

If the amount on the account is insufficient, debt repayment is carried out first of all according to the enforcement documentation, which provides for transfer/issuance to satisfy claims for compensation for harm caused to health/life, as well as for the collection of alimony. After this, severance pay and salaries are paid to persons working or working under a contract, and remuneration to the authors of intellectual work products. In the third place, write-off is carried out according to settlement documents providing for the issuance/transfer of wages to persons involved in the enterprise in accordance with the contract, instructions from control authorities to pay off debts to the budget. The latter, in particular, includes overdue taxes and fees, as well as insurance premiums. In the fourth place, amounts are written off to satisfy other requirements. After this, debts are repaid as documents are received.

Explanations

The rules formulated in the norm apply both to the current account for an LLC (credit institution) and to its clients. The first provision applies in cases where the amount on the account is sufficient to satisfy all the claims presented. In this situation, repayment is carried out in the order in which the documents were received, if the deadline for fulfilling the obligations has arrived (with an acceptance form or if there is an indication of the date in the paper itself). Exceptions to this rule may be provided for by law.

Second rule

It applies to cases where the amount to satisfy all claims is insufficient. For correct application of the sequence established in Art. 855 of the Civil Code of the Russian Federation, it is necessary to take into account judicial practice and other norms. The first and second groups of requirements are determined by paragraphs 2 and 3 of paragraph two. Paragraph 4 By the resolution of the Constitutional Court it was found to be inconsistent with constitutional provisions. According to Part 3 of Art. 79 FKZ No. 1, norms that contradict the Basic Law lose force. It must be remembered that when adopting the resolution, the Constitutional Court was guided by the need to repay wage arrears and to the budget at the same time. Since the corresponding changes have not been made to the Civil Code, the absence of the third group of deductions is made up for every year by the federal law on the state budget.

Nuances of the norm

A current account for an LLC acts as a fund in which capital is concentrated and intended to be spent on various needs. These include wages, mandatory contributions to the budget, and insurance premiums. In accordance with Art. 855 of the Civil Code of the Russian Federation, withdrawal of these amounts is carried out after repayment of the debts specified in paragraph. 1 and 2. It follows from this rule that non-tax and tax deductions, as well as wages, are made in the order in which the relevant documentation is received. Contributions to the Pension Fund, Social Insurance Fund and Compulsory Medical Insurance Fund are considered contributions to the budget, in accordance with Articles 144 and 10 of the Budget Code.

Controversial point

It concerns the presence of the fourth stage in Art. 855. Lawyers often disagree about its existence. The lack of a unified position on this issue entails, in turn, contradictions in determining the number of groups in the sequence. In one case there are 6 of them, in the other - 5. The fourth group, provided for by norm 855 of the Civil Code of the Russian Federation, is preserved in a somewhat truncated form. Here you should refer to Art. 5 Federal Law No. 308. According to the norm, contributions to the budget and extra-budgetary state funds are classified in the third group. However, the provisions of paragraph. 5 clause 2 of Article 855 of the Civil Code of the Russian Federation under consideration allows us to conclude that as a result of the “subtraction” indicated above, a category remains that is not included in the structure of the sequence. She is They move to the 4th group. Stages 5 and 6 are defined in paragraph 2 without additions or adjustments.

Salary

It is assigned to the second group in the sequence established by Article 855 of the Civil Code of the Russian Federation. When determining the semantic content of the concept of remuneration, it is necessary to use different legal sources. These, in addition to the Labor Code, include the Tax Code, as well as court decisions. Meanwhile, the sources cited contain different lists of payments. In addition, these documents, as a rule, are narrowly applied in nature and are used to resolve specific issues (payroll calculation, unified social tax, and so on). It is also worth saying that these sources contain open lists of categories. Employers, in turn, have the right to establish a payment system at their enterprises at their own discretion. As for the use of the term “wages” in paragraph 3 of clause 2 of Article 855 of the Civil Code of the Russian Federation, the legislator provided for the formation of a preferential group for contributions made by the employer to the employee for the latter’s activities under the contract (agreement). This instruction allows you to exclude other amounts not related to employment relationships.

Contributions to the budget

They are not limited to non-tax and tax amounts, contributions to the Pension Fund, Social Insurance Fund and Compulsory Medical Insurance Fund. These deductions include all payments sent to the budget account. They are determined by the column "Recipient's account" in the order document. Budget allocations may include, for example, rent to be transferred to an account opened in the treasury register. In practice, however, some problems arise when determining the composition of budget allocations. First of all, difficulties arise when establishing the sequence of writing off the collection amount according to the order of the bailiff. They are determined by the following circumstances. The Law “On Enforcement Proceedings” does not contain a detailed mechanism for collecting and deducting fees. However, it is known that it is subject to transfer to the federal budget. But first it must be credited to the FSSP deposit account along with other funds to repay the debt. The total amount is distributed according to the rules established by Article 110 of the above Law. In this case, the collection is transferred to the federal budget in the third place. It follows from this that in practice a situation is likely where the amount collected from the debtor will actually be used to satisfy the creditor’s claims. This, in turn, indicates that the bailiff’s resolution will, apparently, order the banking organization to transfer the fee, not to the budget, but to the FSSP account, which is opened in a regular financial structure. Accordingly, it appears that this deduction relates to the fifth group in the sequence. The bank should not make any corrections to the documentation provided by the bailiff. In this case, it is enough to make the payment in the order prescribed by law.

Tax amounts

In practice, there are differences in determining the sequence of debt removal according to the requirements of the Federal Tax Service, depending on the procedure chosen by the inspectorate for executing the decision. In cases where it is implemented by sending an order from the tax structure to the bank, the amounts from the payer’s account are written off directly to the budget of the Russian Federation. These operations belong to the third group in the sequence. If the decision is executed with the involvement of a bailiff, the amounts are debited to the FSSP account and then transferred to the budget. In this case, there is a problem with identifying the group in the withdrawal sequence. In accordance with the informal approach, it is taken into account that the amount written off to the FSSP account is ultimately subject to credit to the budget. From this we can draw the following conclusion. Collected payments act as deductions to the budget, regardless of the fact that they are transferred to it indirectly. For the correct application of the norm, it is necessary to use a formal sign - the type of account to which the funds are to be written off. The FSSP account is not included in the structure of funds on which the amounts of the budget system are taken into account. In this regard, the collection of fines and arrears is carried out in fifth place.

Practical application of the provisions

The formal approach discussed above allows us to overcome certain difficulties. For example, the bailiff in the resolution indicated not only the arrears to the budget by decision of the tax inspectorate, but also fines and enforcement fees. The document thus contains amounts relating to different groups in the sequence. Let’s say a measure was applied to the debtor’s account to block transactions. This event, in accordance with Art. 76, part 1 of the Tax Code, does not create obstacles to the transfer of funds to the budget. In this regard, any instructions from the tax inspectorate or the owner of the account to send the appropriate amounts are executed without taking into account this measure. The same deductions, but collected by order of the bailiff, must first be credited to the FSSP account. Accordingly, in this case they cannot be classified as budget allocations. If we are guided by the formal principle, then both payments belong to the fifth group.

It follows from this that a measure that involves blocking operations will “freeze” them too. With an informal approach, fines and arrears are written off from the account regardless of the established restrictions. In this case, the performance fee will be delayed.

2. If there are insufficient funds in the account to satisfy all demands placed on it, funds are written off in the following order:

fourthly, according to executive documents providing for the satisfaction of other monetary claims;

fifthly according to other payment documents in calendar order.

Debiting funds from the account for claims related to one queue is carried out in the calendar order of receipt of documents.

Commentary to Art. 855 Civil Code of the Russian Federation

1. Sequence of payments - the sequence defined by law for debiting funds from bank accounts according to several payment documents, the payment period of which has already arrived. The commented article establishes two rules for determining the priority of payments from accounts belonging to both clients and credit institutions.

The first rule applies to those cases when the account balance allows you to fully pay off all submitted claims. In this situation, the documents presented with the invoice must be paid in the calendar order of payments, i.e. in the order of their receipt by the payer’s bank (payment deadlines - in the case of an accepted form of payment or in the event that the payment period is determined by the payment document itself). Exceptions to this rule may be provided by law, which does not yet exist.

The same rule (calendar order of payments) is established for debiting funds from an account according to requirements related to one queue (see paragraph 7, clause 2 of the commented article).

2. The second rule applies if there are insufficient funds in the payer’s account to satisfy all the claims made against him. In this case, paragraph 2 of the commented article establishes six groups of priority for payments. For its correct application, it is necessary to take into account judicial practice and subsequent legislation.

The first and second stages of payments are determined by paragraph. 2 and 3 paragraph 2 of the commented article.

Paragraph 4 (third priority of payments) was recognized as inconsistent with the Constitution of the Russian Federation (Part 1 of Article 19) by Resolution of the Constitutional Court of the Russian Federation of December 23, 1997 N 21-P “In the case of verifying the constitutionality of paragraph 2 of Article 855 of the Civil Code of the Russian Federation and part six Article 15 of the Law of the Russian Federation “On the Fundamentals of the Tax System in the Russian Federation” in connection with the request of the Presidium of the Supreme Court of the Russian Federation.” In accordance with Part 3 of Art. 79 of the Federal Constitutional Law of July 21, 1994 N 1-FKZ “On the Constitutional Court of the Russian Federation” acts or their individual provisions recognized as unconstitutional lose force. It should be remembered that the Constitutional Court proceeded from the need to make payments to the budget and wages at the same time.

———————————
Collection of legislation of the Russian Federation. 1997. N 52. Art. 5930.

Considering that the legislator has not yet made changes to the Civil Code of the Russian Federation that correspond to the above-mentioned position of the Constitutional Court of the Russian Federation, the absence of the third stage is annually replenished in the federal law on the federal budget. For 2010 - 2012 This norm is established by Part 1 of Art. 5 of the Federal Law of December 2, 2009 N 308-FZ “On the Federal Budget for 2010 and for the planning period of 2011 and 2012” (hereinafter referred to as the Law of December 2, 2009 N 308-FZ). If there are insufficient funds in the taxpayer's account to satisfy all the requirements presented to him, the write-off of funds according to settlement documents providing for payments to the budgets of the budget system of the Russian Federation, as well as the transfer or issuance of funds for settlements of wages with persons working under an employment contract, are made in in the calendar order of receipt of the specified documents after the transfer of payments made in accordance with the specified article of the Civil Code of the Russian Federation in the first and second place.

From this norm it follows that tax and non-tax payments to the budget, as well as transfers for wages, belong to one queue and must be transferred in the calendar order of receipt of the relevant documents. Payments to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund and territorial compulsory medical insurance funds should also be considered payments to the budget in accordance with Art. Art. 10 and 144 of the Budget Code of the Russian Federation, as well as instructions on the procedure for applying the budget classification of the Russian Federation, approved by Order of the Ministry of Finance of Russia dated December 30, 2009 N 150n.

Consequently, tax and non-tax payments to the budget, payments to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund and territorial compulsory medical insurance funds, as well as transfers to wages must be debited from the bank client’s account in the calendar order of receipt of the corresponding documents after payments classified by the commented article as payments of the first and second stages.

The question of the presence or absence of the fourth stage is controversial. Practicing lawyers often give conflicting answers to this question. This situation, in turn, is the main reason for the lack of a uniform position on another issue - on the total number of payment priority groups: in one case there are five of them, in another - six.

It seems that the fourth stage is certainly preserved, although in a somewhat “truncated” form. Taking into account the wording of Art. 5 of the Law of December 2, 2009 N 308-FZ, it is necessary to conclude that payments to the budget and state extra-budgetary funds are “transferred” to the third priority. However, the wording of para. 5, paragraph 2 of the commented article allows us to conclude that as a result of the above “subtraction” from the fourth priority, a group of payments is identified in the form of its remainder that do not fall into the third priority - payments to non-state extra-budgetary funds. Thus, these payments now constitute the fourth stage.

The fifth and sixth stages are determined by paragraph 2 of the commented article without changes.

Further commentary will be presented taking into account the above specified sequential numbering of payment priority groups.

3. The semantic content of the term “wages” for the purpose of identifying the list of payments that should be made in the second place should be determined as follows. To do this, it is necessary to use various sources of law, mainly labor or tax law, as well as judicial acts. However, these acts, firstly, contain different lists of such payments; secondly, as a rule, they are of a narrowly applied nature and are intended to solve specific problems (calculation of average earnings, calculation of the unified social tax, etc.); thirdly, they contain an open list of payments. In addition, the lists of payments that are included in the wage system differ for each employer (see, for example, subparagraph “o” of paragraph 2 of the Regulations on the specifics of the procedure for calculating average wages, approved by Decree of the Government of the Russian Federation of December 24, 2007 N 922).

All of the above allows us to conclude that for the purposes of interpretation of paragraph. 3, paragraph 2 of the commented article, the use of acts of labor or tax law devoted to specific problems of legal regulation is unreasonable. Using the term “wages” in paragraph. 3 paragraph 2 of the commented article, the legislator meant the creation of a preferential queue for all payments made by the employer in favor of the employee for work under an employment contract, including under a contract. It seems that the words “under an employment contract, including a contract” are important for the interpretation of the norm in paragraph. 3 paragraph 2 of the commented article. Firstly, these words make it possible to exclude other payments made by a legal entity not in connection with labor relations; secondly, they have a consolidating meaning, i.e. indicate all payments that can be made under an employment contract, including compensation for unused vacation both in connection with the dismissal and without dismissal of the employee. Thus, the term “wages” is used in paragraph. 3 paragraph 2 of the commented article in a broad sense.

4. The concept of payments to the budget system of the Russian Federation, subject to transfer in the third place, is not limited to the tax and non-tax payments indicated above, as well as payments to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund and territorial compulsory medical insurance funds. Payments to the budget system should be understood as any payments to the recipient's account, which is a budget account. In this regard, the payment sent to the budgetary system of the Russian Federation is determined by the details of the settlement document “Recipient's Account” or by similar information contained in the document (for example, in the resolution of the bailiff) submitted to the bank. If these documents indicate the corresponding budget account, then the payment must be debited from the payer’s account in third place. In this regard, payments to the budget system may include, for example, the amount of rent to be credited to the account of the recipient of federal budget funds opened in the Federal Treasury register. In this example, the last bank account to which the transferred amount needs to be credited will be the federal budget account. This circumstance allows you to write off this amount from the payer’s account in the third place.

In practice, several particular problems arose when determining the composition of the group of payments to the budget system of the Russian Federation.

Firstly, in practice there is a problem of determining the order of debiting the amount of the enforcement fee from the payer’s account according to the order of the bailiff. It is associated with the following circumstances. The Law on Enforcement Proceedings does not contain a detailed mechanism for collecting and transferring the enforcement fee. It is known that the enforcement fee is subject to credit to the federal budget (Part 1 of Article 112 of the Law on Enforcement Proceedings). However, first it must be transferred to the deposit account of the bailiff service along with other payments to repay the debt amount. The entire amount received is subject to distribution in the manner established by Part 3 of Art. 110 of the Law on Enforcement Proceedings. Moreover, from the deposit account of the bailiff service, the enforcement fee is transferred to the federal budget only in third place. Accordingly, a situation is permissible when the funds written off from the debtor’s account as an enforcement fee will actually be used to satisfy the claims of the collector. It follows that the bailiff’s order to collect the enforcement fee will most likely order the bank to transfer the amount of the enforcement fee debited from the debtor’s account not to the budget, but to the account of the bailiff service opened in a regular credit institution.

Based on the above, it appears that such payment should be made in fifth place. In this case, the bank should not make any corrections to the documents presented by the bailiff. It is enough to make the payment in the order established by law.

Secondly, in practice, differences have been identified in determining the order of debiting amounts from the taxpayer’s account according to the requirements of the tax inspectorate, depending on the procedure chosen by it for executing such a decision. In cases where the decision of the tax authority is executed by sending the corresponding order of the tax authority to the bank (clause 4 of Article 46 of the Tax Code), the amounts written off from the taxpayer’s account are transferred directly to the budget system of the Russian Federation and debited from the taxpayer’s account in the third place.

In the case when the same decision of the tax authority is executed through a bailiff, the amount written off is first transferred to the account of the bailiff service, and then to the budget account of the appropriate level. The problem of determining the priority of debiting funds from the taxpayer’s account in this case is controversial and is solved in practice in different ways.

According to the informal approach, it is necessary to take into account that the amount written off based on the order of the bailiff is ultimately subject to transfer to the budget system of the Russian Federation. Therefore, we can conclude that the collected payments are payments to the budget system of the Russian Federation, despite the fact that they are transferred not directly to the budget, but through the bailiff service unit. If we agree with this point of view, then it is necessary to consistently apply a similar approach in other similar cases of collection of payments to the budgetary system of the Russian Federation through the bailiff service. For example, in the situation discussed above, the collection of rent in favor of the debt collector, an organization financed from the budget of the appropriate level, is also actually carried out into the budget system of the Russian Federation if the debt collector’s account is opened with the Federal Treasury. In this case, the rent amount must be credited to the federal budget account. However, when collecting the specified amounts of rent through a bailiff, this circumstance is difficult to establish.

It seems that for the correct application of the law, a formal criterion should be used - the type of account to which the collected amounts are to be credited. If a settlement or executive document indicates a budget account of the appropriate level as the payee's account, the legislation on the collection of payments to the budget system of the Russian Federation should be applied. The account of the bailiff service does not belong to the category of accounts in which funds from the budget system of the Russian Federation are taken into account. Therefore, when collecting arrears and amounts of penalties through the bailiff service, it seems that payments should be debited from the debtor’s account in the fifth place.

5. The proposed formal approach will allow us to solve the following problem that has arisen in practice. The bailiff included in his resolution not only the amount of arrears to the budget by decision of the tax authority, but also tax fines and enforcement fees. Thus, the same executive document contains two payments assigned to different payment priority groups. In addition, under the conditions of the example under consideration, to the debtor’s account by decision of the tax authority in accordance with Art. 76 of the Tax Code of the Russian Federation, a measure was applied to suspend transactions on the account. As follows from paragraph 1 of Art. 76 of the Tax Code of the Russian Federation, this measure does not prevent the transfer of payments to the budget system of the Russian Federation. Therefore, any collection orders from tax authorities or payment orders from the account owner himself to transfer taxes and other payments to the budget must be executed without taking into account measures to suspend operations. The same payments, but collected by order of the bailiff, are initially subject to credit not to the budget, but to the account of the bailiff service, therefore such a payment cannot be qualified as a payment to the budget system of the Russian Federation.

If we are guided by a formal approach, then both of these payments should be classified in the fifth group of priority of payments, and, accordingly, the measure to suspend operations will “block” both payments in question. If you adhere to an informal approach, then arrears and fines should be written off from the account, despite the suspension of operations (clause 1 of Article 76 of the Tax Code), and the enforcement fee should be delayed. In this case, we may be talking about partial execution of the writ of execution. However, the bank’s right to partial execution of the writ of execution in this case is not provided for by law, taking into account the fact that the case in question is not specified in clause 8 of Art. 70 of the Law on Enforcement Proceedings.

An analysis of the situations discussed above shows that the formal approach is more convenient for law enforcement practice, since the problem of partial non-execution of an executive document does not arise here at all. Plus it's much more grounded. If the tax authorities are not satisfied with it, they have the right to execute it themselves through the debtor’s bank, in which case all amounts collected by them will be qualified as payments to the budget system of the Russian Federation.

6. The first, second and fifth stages include certain requirements, the validity of which is confirmed by the relevant executive document (Article 12 of the Law on Enforcement Proceedings). Similar claims based on a writ of execution are subject to payment in fifth place.

7. Documents not paid on time due to lack of funds in the account are placed by banks in file cabinets for off-balance sheet accounts N 90902 “Settlement documents not paid on time”, N 90903 “Customer settlement documents not paid on time due to lack of funds in correspondent accounts of a credit organization”, N 90904 “Settlement documents not paid on time due to lack of funds in correspondent accounts of credit organizations” (Regulation of the Central Bank of the Russian Federation dated March 26, 2007 N 302-P). By tradition, they are called “card files N 2,” although such a term is no longer contained in the legislation. In the event of a change in the legislation on the priority of payments, documents located in card file No. 2 and not paid on the date of entry into force of the relevant law must in the future be paid only taking into account the new priority of payments, and card file No. 2 must be properly revised (letter of the Central Bank of the Russian Federation dated July 31 1996 N 011-31-5318-96).

Card file No. 2 is a technical technique that allows the bank to comply with the sequence of payments established by law to the client’s account if there are insufficient funds in the account (clause 2 of the commented article).

Unfortunately, file number 2 is not kept for any client’s bank account. For example, in accordance with clause 1.1.3 of the Regulations of the Central Bank of the Russian Federation dated April 1, 2003 N 222-P, a file cabinet of unpaid settlement documents for an individual’s current account is not maintained. If there are no funds in the current account of an individual at the time of debiting the funds, as well as the right to receive a loan, including an overdraft, provided for in the agreement between the bank and the individual, the settlement documents are not subject to execution and are returned to the payers or creditors. Thus, paragraph 2 of the commented article does not actually apply to current accounts of individuals, which is unreasonable, given that the commented article does not contain such exceptions.

8. In practice, the question often arises: what document should be placed in file cabinet No. 2 if the client’s account does not have the funds necessary for issuing wages? In a letter dated November 19, 1996 No. 17-2-11/978, the Department of Methodology and Organization of Settlements of the Central Bank of the Russian Federation explained that in this case, a client’s application for the issuance of funds indicating the terms for which wages are paid can be placed in file cabinet No. 2 .

9. In the appropriate column of the payment document, its originator is obliged to indicate the priority number of payments, determined in accordance with the law. Considering that there is only one such column in the payment document form, payments classified by law into different groups cannot be combined in one payment document.

10. The procedure for returning payment documents from card index No. 2 in the event of closing a client’s account is determined in clause 2.20 of Part I of the Regulations of the Central Bank of the Russian Federation of October 3, 2002 No. 2-P.

11. The order of payments established by the commented article represents the general procedure for the bank to execute a bank account agreement. Therefore, the norm of the commented article is addressed directly to the bank.

In addition to the norm of the commented article, the legislation contains other rules on the order of distribution of property. However, these rules are addressed not to the bank, but to other persons. For example, if a legal entity is declared bankrupt, its property is distributed in the order provided for in Art. 64 Civil Code of the Russian Federation, art. Art. 134, 138, 211 of the Bankruptcy Law. These rules are addressed to the bankruptcy trustee. When foreclosure is applied to the debtor's property through a bailiff, the order established by Ch. 14 of the Law on Enforcement Proceedings. In the specified order, the debtor's property is distributed by the bailiff. In accordance with Part 4 of Art. 111 of the Law on Enforcement Proceedings, in the event that the requirements contained in the enforcement documents are fulfilled by a bank or other credit organization, the order of debiting funds from the debtor’s accounts is determined by the commented article.

Consequently, the priority established by other acts for relevant special cases should not be applied to debiting funds from a bank account.

12. If there are several accounts of the payer in the same bank, the order of payments established by the commented article is applied to each account separately.

13. The seizure of the defendant’s funds, imposed at the request of the creditor as a measure to secure the claim, often deprives other creditors of the account owner of the opportunity to receive payments from the seized account. In accordance with Art. 27 of the Law on Banks, when the funds in accounts and deposits are seized, the credit institution immediately upon receipt of the decision on seizure stops expenditure transactions on this account (deposit) within the limits of the funds that are seized. Thus, arrest as a measure to limit the disposal of an account means the cessation of all debit transactions, regardless of the order of execution of payment documents located in card index No. 2, and the order of payments, to ensure the execution of which the funds in the account were seized.

Therefore, the bank should not make payments classified by law as the first, second, third priority, even if there is a bailiff’s order to seize funds in the account to execute a payment classified by law as the sixth priority.

In cases where the claims of third parties are classified by the commented article in a more preferential queue than claims secured by arrest, the question arises: how justified is it to prevent the execution of those settlement documents that, by law, must be executed earlier than the secured claim?

In clause II of the information letter of the Supreme Arbitration Court of the Russian Federation dated July 25, 1996 No. 6 “On the results of consideration by the Presidium of the Supreme Arbitration Court of the Russian Federation of certain issues of judicial practice” (hereinafter referred to as the information letter of the Supreme Arbitration Court of the Russian Federation No. 6) the following mechanism for solving the problem posed is indicated. If the defendant has creditors who, in accordance with the law, are granted the right to receive funds from the defendant’s account before collecting the debt in favor of the plaintiff, and if there are no funds in the defendant’s corresponding account other than the seized amounts, such creditors have the right to apply to the arbitration court with a petition for permission to write off certain amounts in the order established by law. The arbitration court considers these petitions and, if the facts stated in them are confirmed, satisfies them.

———————————
Bulletin of the Supreme Arbitration Court of the Russian Federation. 1996. N 10.

Unfortunately, the mechanism described in the above-mentioned information letter for writing off payments to privileged creditors from the seized account turned out to be unviable. There are few facts of practical use of this mechanism; at the same time, some problems with its use have been identified. For example, the information letter in question does not indicate which court should issue a ruling authorizing the debiting of funds from the seized account. In practice, there were cases when arrest was applied by one arbitration court, and a ruling allowing the write-off of funds to privileged creditors was made by another arbitration court, which did not have sufficient information. This is due to the fact that the exchange of information between courts is not ensured.

14. Clause II of the information letter of the Supreme Arbitration Court of the Russian Federation No. 6 contains the conclusion that the seizure of funds in the account cannot violate the order of debiting funds from the account established by the commented article. This means that the application of a seizure regime to the defendant’s account should lead to the cessation of all debit transactions.

This conclusion is justified, since it is directed against circumventing the rule on the order of payments. When the arrest is lifted in accordance with the established procedure, expenditure transactions must be resumed in accordance with the priority established by the commented article. This means that the seizure of funds in the account does not provide practically any benefits to the person on whose initiative it was applied, and in its essence cannot fully serve as a measure to secure a claim. Let's say that it is necessary to secure a claim for 100 thousand rubles. The specified amount was seized from the account, i.e. the court applied arrest as a measure to secure the claim. Let’s assume that the court made a decision to collect 100 thousand rubles from the defendant’s account and canceled the arrest as a measure to secure the claim, given that it has already been satisfied. The corresponding writ of execution was received by the debtor's bank. Let us assume that the bank must execute the court decision in the fifth place and other privileged claims are presented to the account in an amount exceeding 100 thousand rubles. For the same account there is a card index No. 2, which includes payment documents, which are classified in paragraph 2 of the commented article to the first four queues. In this situation, the bank must write off all priority payments from the account, and then, fifthly, execute the court decision. Obviously, the previously seized amount will be spent on priority payments. It is not enough to enforce the court decision, and, therefore, it cannot enforce this claim in any way.

This situation is not entirely normal, but it definitely follows from the current legislation on the order of payments. The same approach must be used when applying measures to suspend transactions on an account in all cases, except for the case provided for by the norm of paragraph 1 of Art. 76 Tax Code of the Russian Federation. It established that the suspension of transactions on an account is a special way of ensuring the execution of a decision on the collection of taxes and fees and it does not apply to payments, the order of execution of which, in accordance with the civil legislation of the Russian Federation, precedes the execution of the obligation to pay taxes and fees, as well as to write-off transactions funds for payment of taxes (advance payments), fees, corresponding penalties and fines and for their transfer to the budget system of the Russian Federation. It follows that the suspension of account transactions applied by the tax authorities should not prevent the debiting from the taxpayer’s account of payments classified in paragraph 2 of the commented article as the first and second priority, as well as all payments sent to the budget system of the Russian Federation (hereinafter referred to as taxes and other payments to the budget).

Revision of the cited article. 76 of the Tax Code of the Russian Federation has been in effect since January 1, 2007. In the previous edition, the same article did not contain any indication of the possibility of writing off taxes and other payments to the budget from an account to which a measure was applied to suspend operations. Based on the exact meaning of the original wording of the article under consideration, debiting funds from an account on which transactions were suspended was possible only in relation to payments classified as clause 2 of the commented article as the first and second priority. Meanwhile, the judicial practice of that period recognized it as possible to write off tax amounts from a taxpayer’s account, regardless of the suspension of transactions on the account. The courts justified this conclusion by the special security role of the measure in question (see, for example, Resolutions of the Federal Antimonopoly Service of the Far Eastern District dated October 23, 2002 No. FOZ-A73/02-2/2191; Federal Antimonopoly Service of the Ural District dated June 23, 2003 No. F09-1745/ 03-AK, dated March 3, 2003 N F09-501/03-AK).

It seems that this approach of judicial practice and the legislator who changed the wording of Art. 76 of the Tax Code of the Russian Federation and thereby allowing taxes and other payments to the budget to be written off from the account of a taxpayer with suspended operations cannot be considered justified. It violates the order of payments established by law, i.e. aimed at circumventing the law. When analyzing this situation, it should be taken into account that taxes and other payments to the budget must be paid in third place simultaneously with the payment of wages and other payments equivalent to it. This rule was established in pursuance of the Resolution of the Constitutional Court of the Russian Federation of December 23, 1997 N 21-P. It was in this Resolution of the Constitutional Court of the Russian Federation that it was first established that the fulfillment of the constitutional obligation to pay taxes should be carried out simultaneously with the payment of wages; a different approach contradicts the Constitution of the Russian Federation. New edition of Art. 76 of the Tax Code of the Russian Federation actually made it possible to pay taxes and other payments to the budget before wages, given that the measure to suspend transactions on an account does not apply to taxes, but suspends the payment of wages. Thus, the new version of Art. 76 of the Tax Code of the Russian Federation does not meet the requirements of the Resolution of the Constitutional Court of the Russian Federation of December 23, 1997 N 21-P.

In this regard, the conclusion of the information letter of the Supreme Arbitration Court of the Russian Federation No. 6 that the seizure of funds on the account should not violate the order of debiting funds from the account established by law seems more justified. It does not violate the conclusion of the Constitutional Court of the Russian Federation on the need to pay taxes and wages at the same time, since it does not violate the order of payments established by law.

15. If the bank carries out operations that violate the sequence of execution of settlement documents presented to the account, it may be concluded that the bank has improperly fulfilled its obligations under the bank account agreement. Considering that this violation is not included in the disposition of Art. 856 of the Civil Code of the Russian Federation, it seems that the client can present a claim to the bank only for compensation of losses.