The law on writing off debts to the pension fund. Debt on insurance premiums

On this issue, we take the following position:
The tax amnesty provides for the write-off of arrears on insurance premiums calculated by the Pension Fund of the Russian Federation on the basis of eight times minimum size wages generated by the individual entrepreneur for the periods that have expired before 01/01/2017. It also provides for the cancellation of debt on penalties and fines in relation to this arrears.
In addition, it is envisaged to write off the arrears on insurance premiums and debts on penalties and fines formed before 01/01/2017, if the period for the enforcement established by the Tax Code of the Russian Federation for the specified amounts expired from 01/01/2017 until the date of signing the certificate of acceptance and transfer of the balance between funds and tax authorities.
The tax amnesty also provides for the write-off of tax arrears paid in connection with application of the simplified tax system, arrears in penalties accrued on the specified arrears, arrears in fines formed for individual entrepreneurs as of 01.01.2015.

Position justification:
Tax amnesty is provided for from December 28, 2017 N 436-FZ "On amendments to parts one and two Russian Federation and individual legislative acts Russian Federation" (hereinafter - Law N 436-FZ).

Debt on insurance premiums

According to Law N 436-FZ, arrears on insurance premiums to the state off-budget funds of the Russian Federation for settlement (reporting) periods that have expired before 01/01/2017 are recognized as uncollectible and are subject to write-off in the amount determined in accordance with federal law dated July 24, 2009 N 212-FZ "On insurance contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, federal fund mandatory health insurance"(hereinafter referred to as Law N 212-FZ), debts on the relevant penalties and fines owed to individual entrepreneurs (IEs), lawyers, notaries engaged in private practice, and other persons engaged in private practice in accordance with the procedure established by the legislation of the Russian Federation, as well as for persons who, as of the date of writing off the corresponding amounts, have lost the status of an individual entrepreneur or a lawyer or have ceased to engage in private practice in accordance with the procedure established by the legislation of the Russian Federation.
As explained by the financial department in the Ministry of Finance of Russia dated January 26, 2018 N 03-11-11 / 4394, the debt established for writing off did not arise as a result of evasion from taxation of insurance premiums, but due to the peculiarities of the legislation on insurance premiums, which provided that in case of failure to submit tax reporting of an individual entrepreneur (that is, even if he did not conduct any activity and did not receive any income), the amount of insurance premiums was calculated at an increased rate - as the product of eight times the minimum wage and the rate of insurance premiums. After the transfer of functions for the administration of insurance premiums to the tax authorities and the intensification of work on debt collection, many entrepreneurs who had not conducted any activity for a long time found themselves with hundreds of thousands of rubles in debts on contributions.
In order to write off, among other things, the mentioned debt, calculated from the eightfold minimum wage, N 436-FZ was adopted.
The decision to recognize the above arrears and debts as uncollectible and to write them off is made by the tax authority at the place of residence individuals(place of registration individual entrepreneurs) on the basis of information on the amounts of arrears and debts available to tax authority, and information from the PFR authorities confirming the grounds for the occurrence and existence of such arrears and debts (Law N 436-FZ) (see also the Ministry of Finance of Russia dated 08.02.2018 N 03-15-05 / 7506, dated 07.02. 2018N).
In our opinion, from a direct reading of the provisions of Law N 436-FZ and the clarifications provided by the Ministry of Finance of Russia, it follows that only arrears on insurance premiums calculated by the PFR in accordance with Law N 212-FZ can be recognized as hopeless.
With regard to the arrears on insurance premiums calculated by the entrepreneur himself in the generally established order N 212-FZ (contributions that the IP charged on wages of their employees or fixed contributions (for themselves), calculated on the basis of a one-time minimum wage or 1% of 300,000 rubles, etc.), but for some reason not paid to the budget (partially unpaid) until 2017, the provisions of Law N 436-FZ do not apply.
This conclusion is also confirmed by the fact that the decision to recognize the arrears as uncollectible is made, among other things, on the basis of information from the FIU confirming the basis for the occurrence of arrears and debts.
The phrase "For the purpose of writing off, including the aforementioned debt, calculated from the eightfold minimum wage ...", given in the explanation of the financial department, in our opinion, means that N 436-FZ established a number of grounds for writing off tax debts and contributions.
In this regard, in our opinion, an individual entrepreneur can count on write-off on the basis provided for by Law N 436-FZ, only arrears on contributions calculated by the Pension Fund of the Russian Federation based on eight times the minimum wage formed by an individual entrepreneur for periods expired before 01/01/2017 . Debts on penalties and fines in respect of this arrears are also subject to write-off.
Our opinion is also confirmed by the information posted on the website of the Federal Tax Service of Russia (https://www.nalog.ru/rn33/news/tax_doc_news/7207606/).
The decision to write off the arrears and debts specified in Law N 436-FZ is drawn up in free form and must contain the last name, first name, patronymic, an identification number the taxpayer of the payer of insurance premiums of an individual (IP) and information on arrears and debts on insurance premiums subject to write-off (Law N 436-FZ).
In other words, the decision to write off arrears and debts is made by the tax authority without the participation of the payer of insurance premiums. The employer does not need to submit any application for this. However, the terms for making decisions on recognizing the considered arrears and debts as uncollectible and the terms for their write-off are not established by the norms N 436-FZ.
We also note that Federal Law No. 243-FZ of 03.07.2016 "On Amendments to Parts One and Two of the Russian Federation in Connection with the Transfer to Tax Authorities of the Authority to Administer Insurance Contributions for Compulsory Pension, Social and Medical Insurance" (hereinafter referred to as the Law N 243-FZ) from 01/29/2018 was supplemented with part 3.1 (, Law N 436-FZ) with the following content: "In the event that the tax authorities lose the ability to recover the arrears on insurance premiums and debts on the corresponding penalties and fines transferred to them by the PFR bodies and the FSS bodies of the Russian Federation formed on 01/01/2017, as well as the amounts of insurance premiums, penalties and fines additionally assessed by the Pension Fund of the Russian Federation, bodies of the FSS of the Russian Federation, payable based on the results of control measures carried out for the settlement (reporting) periods that have expired before 01/01/2017, due to the expiration of the established period for their collection in the period from 01/01/2017 to the date of signing the act of acceptance and transfer, the specified arrears and debts are recognized as uncollectible to be collected and written off by the tax authority at the location of the organization (location separate subdivisions organization) or at the place of residence of an individual (place of registration of individual entrepreneurs) in the manner approved by the federal executive body authorized for control and supervision in the field of taxes and fees.
From a direct reading of the norm of Law N 243-FZ, in our opinion, it follows that arrears in contributions and arrears in penalties and fines formed before 01/01/2017 and transferred by funds to tax authorities will be recognized as uncollectible and written off only if the established The Tax Code of the Russian Federation, the deadlines for the forced collection of these amounts expired from 01/01/2017 until the date of signing the act of acceptance and transfer of balances between funds and tax authorities (Law N 243-FZ), since in this case the tax authority loses the right to recover arrears, penalties and fines (Clause 9 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 N 57).
As follows from the draft Order of the Federal Tax Service of Russia "On approval of the procedure for writing off by tax authorities of arrears on insurance premiums and debts on relevant penalties and fines transferred to them by the authorities of the Pension Fund of the Russian Federation and the authorities of the Social Insurance Fund of the Russian Federation, formed as of January 1, 2017, as well as amounts of insurance premiums, penalties and fines additionally assessed by the bodies of the Pension Fund of the Russian Federation, bodies of the Social Insurance Fund of the Russian Federation, payable based on the results of control measures carried out for the settlement (reporting) periods that have expired before January 1, 2017, due to the expiration of the established period their recovery in the period from January 1, 2017 to the date of signing the act of acceptance and transfer "(prepared by the Federal Tax Service of Russia on March 16, 2018), the decision on the recognition of arrears and debts specified in Law N 243-FZ will be made by the tax authority at the place of registration of the individual entrepreneur, on the basis of the protocol of the commission of the tax authority on the establishment the fact that the tax authority has lost the ability to collect arrears, debts on penalties and fines and a certificate from the tax authority at the place of registration of the IP on the amounts of arrears and debts on penalties, fines to be written off.
The provisions of Law N 243-FZ, in our opinion, were adopted due to the fact that the tax authority should have already made attempts to collect arrears and debts on penalties and fines by force from 01/01/2017, but could not do this due to the lack of relevant information before signing the act of acceptance and transfer of the balance.
As for other amounts of arrears in insurance premiums and arrears in penalties and fines (not specified in Law N 436-FZ and Law N 243-FZ), including those formed before 01/01/2017, then they can be recognized as hopeless only on the grounds provided for by the Tax Code of the Russian Federation, even if the tax authority has lost the right to enforcement these arrears (Law N 243-FZ, resolution of the Ninth AAC dated 03/16/2018 N 09AP-5268/18, clause 9 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 07/30/2013 N 57).
Please note that the timing limitation period for the payment of taxes and contributions of the Tax Code of the Russian Federation is not established.
One of the grounds for writing off debts on contributions and taxes is the adoption by the court of an act, according to which the tax authority loses the ability to collect arrears, debts on penalties and fines due to the expiration of the established period for their collection, including the issuance of a ruling on refusal to restore missed deadline for filing an application with the court for the recovery of arrears, arrears in penalties and fines (TC RF).
It is not only the tax authority that applies to the arbitration court in the manner prescribed by the Arbitration Procedure Code of the Russian Federation, with statement of claim on the collection of mandatory tax payments, but also the taxpayer (payer of insurance premiums), including by filing an application with the court for recognition of the amounts, the possibility of forcible collection of which is lost, hopeless for collection and the obligation to pay them is terminated. Such a statement of the payer of insurance premiums is subject to consideration by the court according to the general rules of action proceedings (Presidium of the Supreme Arbitration Court of the Russian Federation of 15.01.2013 N 10534/12, Fifteenth AAC of 04.09.2015 N 15AP-13462/15, Third AAC of 27.08.2015 N 03AP-4178 / 15, Tenth AAS dated 09/04/2013 N 10AP-7188/13 (left unchanged by the FAS of the Moscow District of 11/11/2013 N F05-14349/13 in case N A41-6350/2013), FAS of the East Siberian District of 06/14/2012 N F02-2259 / 12 in case N A78-8254 / 2011, FAS of the North-Western District dated 01.27.2012 N F07-1486 / 11 in case N A21-3041 / 2011, decision of the AC Sverdlovsk region dated 10.03.2011 N A60-43724/2010).
After the entry into force of the court decision, the tax authority must immediately exclude the amount of debt from the personal account of the payer of insurance premiums (paragraph 4, clause 9 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 N 57).

Tax debt

Law N 436-FZ establishes that:
- are recognized as uncollectible and are subject to write-off of arrears on transport tax, property tax of individuals, land tax, formed by individuals as of 01/01/2015, debt on penalties accrued on the specified arrears, accrued on the date the tax authority, in accordance with Law N 436-FZ, decided to write off those recognized as uncollectible to collection of arrears and debts on penalties (Law N 436-FZ);
- arrears in taxes (with the exception of tax on the extraction of minerals, excises and taxes payable in connection with the movement of goods across the border of the Russian Federation), debt on penalties accrued on the specified arrears, and debt on fines are recognized as uncollectible and subject to write-off; formed on 01/01/2015, on the date of the adoption by the tax authority in accordance with Law N 436-FZ of the decision to write off the arrears and debts on penalties and fines recognized as uncollectible for individual entrepreneurs, as well as for persons who lost the status of individual entrepreneurs before the date of such a decision (Law N 436-FZ).
According to Law N 436-FZ, the decision to write off arrears and debts on penalties and fines specified in Parts and Law N 436-FZ is taken by the tax authority without the participation of the taxpayer at the place of residence of an individual (the location of real estate belonging to an individual, vehicles , place of registration of individual entrepreneurs) on the basis of information on the amounts of arrears and debts for penalties, fines.
The decision to write off the arrears and debts on penalties and fines specified in Parts and Law N 436-FZ is drawn up in an arbitrary form and must contain the last name, first name, patronymic, taxpayer identification number of an individual (individual entrepreneur), information on the amount of arrears, arrears in penalties and fines to be written off (Law N 436-FZ).
Thus, the arrears in tax paid in connection with the application of the simplified tax system, as well as debts on penalties accrued on the specified arrears, and debts on fines formed for IP on 01/01/2015 can be recognized as uncollectible and subject to write-off.
The provisions of N 436-FZ do not specify what should be understood as the day of formation of tax arrears, arrears in penalties accrued on the specified arrears, and arrears in fines.
By virtue of the Tax Code of the Russian Federation N 436-FZ is part of the legislation of the Russian Federation on taxes and fees. In turn, the Tax Code of the Russian Federation provides that for the purposes of the Tax Code of the Russian Federation and other acts of legislation on taxes and fees, arrears are understood to be the amount of tax not paid within the period established by the legislation on taxes and fees. /1/39307).
The debt acquires the status of arrears after the due date for paying the tax (see also paragraph 50 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 N 57).
Tax on the simplified tax system is paid by the individual entrepreneur no later than April 30 of the year following the expired tax period(, Tax Code of the Russian Federation).
In this regard, we believe that the provisions of Law N 436-FZ may apply to the amounts of Tax under the simplified tax system payable for 2013 (payment deadline no later than April 30, 2014) and earlier (2012, 2011, etc.).
The deadlines for making decisions on writing off tax arrears N 436-FZ are also not established.
The website of the Federal Tax Service of Russia (https://www.nalog.ru/rn33/news/tax_doc_news/7207606/) says that the decision to write off arrears, penalties and fines in the cases specified in N 436-FZ will be taken by the tax authority independently without the participation of taxpayer after the implementation of the relevant write-off procedure.
At the same time, despite the fact that N 436-FZ establishes that the tax authorities decide to write off the arrears without the participation of the taxpayer (payer of insurance premiums), the individual entrepreneur has the right to apply to the tax authority with a request for clarification of the reasons for not writing off the debts discussed above.
This right is also established by the Tax Code of the Russian Federation, according to which the taxpayer (payer of contributions) has the right to receive at the place of his registration from the tax authorities free information(including in writing) on applicable taxes and fees, legislation on taxes and fees and regulations adopted in accordance with it, the procedure for calculating and paying taxes and fees, the rights and obligations of taxpayers, the powers of tax authorities and their officials. pp. 4 p. 1 art. 32 of the Tax Code of the Russian Federation.
The taxpayer (payer of contributions) has the right to send a written request to the tax authority, which can be submitted directly to the tax authority, sent by mail, transferred to electronic form without an electronic signature via the Internet, for example, through the taxpayer's personal account (clause 90 of the Administrative Regulations of the Federal tax service to provide public service on free informing (including in writing) of taxpayers, payers of fees and tax agents about applicable taxes and fees, legislation on taxes and fees and regulations adopted in accordance with it, the procedure for calculating and paying taxes and fees, rights and obligations taxpayers, payers of fees and tax agents, the powers of tax authorities and their officials, as well as to receive tax returns(calculations), approved by the Ministry of Finance of Russia dated July 2, 2012 N 99n, hereinafter referred to as the Regulations).
The form of a written request is given in Appendix No. 6 to the Regulations. Individual information on the basis of a written request is carried out within 30 calendar days from the date of its registration with the inspectorate of the Federal Tax Service of Russia (clause 93 of the Regulations).
When applying through the TCS or through a personal account using an electronic signature, the request is submitted in the form given in Appendix No. 7 to the Regulations.

Prepared answer:
Legal Consulting Service Expert GARANT
Vakhromova Natalya

Answer passed quality control

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

On the collection of debts on insurance premiums from individual entrepreneurs.

1. Tell us about the terms of payment of insurance premiums by individual entrepreneurs?

For payers of insurance premiums who do not make payments and other remuneration in favor of individuals, and whose income does not exceed 300,000 rubles, the deadline for paying insurance premiums is set - no later than December 31 of the current calendar year.

If the amount of income of payers exceeds 300,000 rubles, insurance premiums, calculated from the amount of income exceeding the specified amount, are paid no later than April 1 of the year following the expired billing period.

If the payment deadline falls on a day recognized in accordance with the legislation of the Russian Federation as a day off and (or) a non-working holiday, the expiration day of the payment deadline is the next business day following it.

2. How will the entrepreneur be notified of the existence of arrears in insurance premiums and penalties? Can you tell me more about how penalties are calculated?

Previously, the body of the Pension Fund sends the payer a demand for payment of arrears, penalties and fines, indicating the period in which it is proposed to pay the indicated amounts.

The demand is sent to the payer within three months from the date of detection of the arrears.

The demand is transferred to the payer - an individual (his legal or authorized representative) personally against receipt or in another way confirming the fact and date of its receipt. If it is impossible to deliver the claim by the indicated methods, it shall be sent by registered mail and shall be considered received after six working days from the date of sending the registered letter. Also, the demand can be sent to the payer in electronic form via telecommunication channels, while the formats, procedure and conditions for sending the demand to the payer are established by the PFR authorities.

The claim is accompanied by a calculation of penalties.

Penalties are recognized as the amount of money that the payer must pay in case of payment of the due amounts of insurance premiums at a later date than established by the Federal Law.

Penalties are accrued for each calendar day of delay in fulfilling the obligation to pay insurance premiums. Penalties are paid in addition to the amounts of insurance premiums due and regardless of the application of liability measures for violation of the legislation on insurance premiums.

Penalties are accrued until the day the arrears are actually paid. Penalties are calculated as a percentage of the amount not paid on time using interest rate, equal to 1/300 of the refinancing rate of the Central Bank of the Russian Federation, effective during this period.

Federal legislation No. 212-FZ establishes cases when penalties are not charged, namely:

- if the payer could not repay the arrears due to the fact that, by a court decision, operations on his bank accounts were suspended or his property was seized. In this case, penalties are not charged for the entire period of these circumstances;

- penalties are also not charged on the amount of arrears, which was formed by the payer as a result of the fulfillment by him of written explanations on the procedure for calculating, paying insurance premiums or on other issues of application of the legislation of the Russian Federation on compulsory social insurance, which were given to him or an indefinite circle of persons by the control body in within its competence.

3 .And if an entrepreneur who has a debt does not voluntarily pay the amounts indicated in the demand? How will the collection be made?

If the payer does not voluntarily pay the amounts specified in the demand, then the obligation to pay insurance premiums is enforced by foreclosing the payer's funds in banks.

To do this, the PFR body makes a decision on the collection of insurance premiums, penalties and fines at the expense of Money. A decision on recovery may be made in relation to one or several claims at the same time.

By general rule the decision to collect is made no later than two months after the expiration of the established period for payment on demand and becomes effective from the date of its adoption.

If the unpaid amount of insurance premiums, penalties and fines specified in the demand does not exceed 1,500 rubles, the decision to collect is made after the expiration of the period established in one or more requirements, but no later than one year and two months after the expiration of the deadline for the execution of the earliest requirements.

If within one year and two months the amount of the debt did not exceed 1,500 rubles, the PFR body collects such debt in court. An application to the court shall be sent within six months from the date of expiration of a period equal to one year and two months.

It should be noted that these provisions do not apply to the procedure for collecting debts from payers in respect of whom bankruptcy proceedings have been initiated.

Based on the decision to collect, the control body draws up a collection order for debiting and transferring funds to the budget.

The instructions of the control body are sent to the bank where the debtor's accounts are opened, including in electronic form, within one month from the date of the decision to collect and are subject to unconditional execution by the bank in the order established by the civil legislation of the Russian Federation.

Collection of insurance premiums can be made from settlement (current) accounts in the currency of the Russian Federation, as well as in foreign currency. The collection of insurance premiums from accounts in foreign currency is carried out in an amount equivalent to the amount of payment in the currency of the Russian Federation at the exchange rate Central Bank Russian Federation, established on the date of sale of foreign currency.

If there is a deposit account, the contribution control body has the right to instruct the bank to transfer funds from the deposit account to the settlement (current) account of the debtor upon the expiration of the deposit agreement.

The collection order is executed by the bank no later than one business day following the day it receives the said order, if the collection of insurance premiums is made from accounts in the currency of the Russian Federation, and no later than two business days if the collection of insurance premiums is made from accounts in foreign currency.

4. If the policyholder does not have enough or no funds on the accounts or there is no information about the accounts, in what order will the collection be made?

If there is insufficient or no money on the payer's accounts or if there is no information about the payer's accounts, the PFR body has the right to collect the debt at the expense of the debtor's other property.

The decision to collect insurance premiums at the expense of the payer's property is made by the head of the control body (deputy head) in the form of an appropriate resolution, which is sent to the bailiff for execution in the manner prescribed by the Federal Law on Enforcement Proceedings.

The decision on the collection of insurance premiums is taken in respect of one or more claims simultaneously.

The resolution on the recovery at the expense of the debtor's property is adopted within one year after the expiration of the term for execution on demand.

In the event that the unpaid amount of insurance premiums, penalties and fines specified in the claim does not exceed 1,500 rubles, the resolution on recovery is adopted after the expiration of the period established in one or more claims for the payment of arrears, but no later than two years after the expiration of the deadline for fulfilling the earliest claim .

5. If an entrepreneur terminates his activity as an individual entrepreneur in 2015 and he has a debt, how is it collected in this case?

In the event that the payer of insurance premiums - an individual who is not an individual entrepreneur (hereinafter in this article - an individual), fails to fulfill the obligation to pay insurance premiums, penalties and fines within the prescribed period, the body controlling the payment of insurance premiums that sent the request for payment of arrears on insurance premiums, penalties and fines, has the right to apply to the court with an application for the collection of insurance premiums.

The application for recovery is submitted to the court general jurisdiction.

An application for recovery is filed with the court if the total amount of insurance premiums, penalties and fines to be collected from an individual exceeds 500 rubles.

If within three years from the date of the expiration of the term for the execution of the earliest claim, the amount of the debt exceeded 500 rubles, the PFR authority applies to the court with an application for recovery within six months from the day when the specified amount exceeded 500 rubles.

If within three years from the date of the expiration of the deadline for the fulfillment of the earliest claim, the amount of the debt did not exceed 500 rubles, the PFR authority applies to the court with an application for recovery within six months from the date of the expiration of six months from the date of the expiration of the three-year period.

It should be noted that the amount of insurance premiums directly depends on the income of the payer of insurance premiums:

- if the amount of the payer's income for the billing period does not exceed 300,000 rubles, then the amount of the insurance premium in a fixed amount is determined as the product of the minimum wage established by federal law at the beginning of the financial year and the rate of insurance premiums to the Pension Fund, increased by 12 times and amounts to 17,328.48 rubles.

- the calculation of the amount of the annual contribution for compulsory health insurance has not changed, it is equal to the product of the minimum wage and the rate of insurance contributions to the MHIF, increased by 12 times, and amounts to 3,399.05 rubles.

If the amount of the payer's income for the billing period exceeds 300,000 rubles, then the amount of the insurance premium in a fixed amount is determined as the product of the minimum wage established by federal law at the beginning of the financial year and the rate of insurance premiums to the Pension Fund, increased by 12 times, plus 1.0 percent of the amount of income of the payer of insurance premiums in excess of 300,000 rubles for the billing period.

But the amount of deductions calculated in this way will not grow indefinitely. In this case, the amount of insurance premiums cannot exceed the amount determined as the product of eight times the minimum wage established by federal law at the beginning of the financial year and the rate of insurance premiums to the Pension Fund, increased by 12 times.

The maximum amount of insurance premiums for compulsory pension insurance for 2014 is 138,627.84 rubles.

Data on income from the activities of payers of insurance premiums for the billing period are submitted to the Pension Fund of the Russian Federation by the tax authorities. The specified information is the basis for sending a claim for payment of arrears, as well as further collection of debts.

Thus, in the event that the payer terminates his activities as an individual entrepreneur and removes him from the register, the payer must submit relevant information about his income to the tax authorities.

If such information was not received by the FIU on the grounds that the payer did not report to the Federal Tax Service in a timely manner, the FIU will calculate the amount of the insurance premium and will claim it in maximum size, that is, based on the eightfold minimum wage - 138,627.84 rubles.

In case of non-payment of debt on demand, the PFR authorities will be guided by Art. 21 of Federal Law No. 212-FZ and collect debt from an individual who is not an individual entrepreneur in court. An application for the recovery of insurance premiums shall be submitted to a court of general jurisdiction within six months from the date of expiration of the term for fulfilling the claim.

"Personnel issue", 2011, N 8

INSURANCE PREMIUM: WRITTEN-OFF OF BAD DEBT ON INSURANCE PREMIUM

The legislation of the Russian Federation on insurance premiums establishes specific deadlines for paying the accrued amounts of insurance premiums and the payers of insurance premiums are obliged to transfer them in a timely and complete manner. In case of non-payment or incomplete payment of insurance premiums within the established period, an arrears are formed, the procedure for collecting which is established by law. If, for various reasons, the arrears attributed to individual payers of insurance premiums cannot be paid or collected, then such arrears are recognized as hopeless. We will talk about the features of writing off bad debts on insurance premiums in this article.

Since January 1, 2010, Federal Law No. 212-FZ of July 24, 2009 "On insurance contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund and territorial funds compulsory medical insurance" (hereinafter - Law N 212-FZ). The said Law regulates relations related to the calculation and payment (transfer) of insurance premiums:

To the Pension Fund of the Russian Federation - for mandatory pension insurance;

To the Social Insurance Fund of the Russian Federation - for compulsory social insurance in case of temporary disability and in connection with motherhood;

To the Federal and territorial funds of compulsory medical insurance - for compulsory medical insurance.

In addition, Law N 212-FZ regulates relations arising in the process of exercising control over the calculation and payment (transfer) of insurance premiums and bringing to responsibility for violation of legislation on insurance premiums.

Do not forget that Law N 212-FZ does not apply to legal relations related to the calculation and payment (transfer) of insurance premiums for compulsory social insurance against industrial accidents and occupational diseases, as well as to legal relations related to the payment of insurance premiums for compulsory medical insurance of the non-working population, which are regulated by federal laws on the relevant specific types of compulsory social insurance.

The obligation to pay insurance premiums in a timely manner and in full is established for payers of insurance premiums, paragraph 1 of Art. 18 of Law N 212-FZ. In case of non-payment or incomplete payment of insurance premiums within the established period, the collection of arrears on insurance premiums is carried out.

The collection of arrears on insurance premiums from an organization or an individual entrepreneur is carried out in the manner prescribed by Art. Art. 19 and 20 of Law N 212-FZ, with the exception of the cases specified in paragraph 4 of Art. 18 of Law N 212-FZ (collection of arrears on insurance premiums in court):

Art. 19 of Law N 212-FZ establishes the procedure for collecting arrears at the expense of funds held in the accounts of the payer of insurance premiums - an organization or an individual entrepreneur in banks;

Art. 20 of Federal Law N 212-FZ defines the procedure for collecting arrears at the expense of other property of the payer of insurance premiums - an organization or an individual entrepreneur.

Recovery of arrears on insurance premiums from an individual who is not an individual entrepreneur is carried out in the manner prescribed by Art. 21 of the Federal Law N 212-FZ, according to which the arrears are collected at the expense of the property of the payer of insurance premiums.

According to paragraph 1 of Art. 23 of Law N 212-FZ, arrears attributed to individual payers of insurance premiums, the payment and (or) collection of which turned out to be impossible due to economic, social or legal reasons, are recognized as hopeless.

Bad arrears are written off in the manner established by Decree of the Government of the Russian Federation of October 17, 2009 N 820 "On the procedure for recognizing as uncollectible and writing off arrears on insurance premiums to state extra-budgetary funds and debts on accrued penalties and fines" (hereinafter - Decree N 820 ).

According to paragraph 1 of Resolution N 820, arrears in insurance premiums to state extra-budgetary funds, which are attributed to individual payers, and debts on accrued penalties and fines (hereinafter referred to as debt) are recognized as uncollectible and written off in the following cases:

Liquidation of the payer of insurance premiums (organization) in accordance with the legislation of the Russian Federation.

Main normative document establishing the procedure for the liquidation of legal entities is the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation).

Note that, in accordance with Art. 61 of the Civil Code of the Russian Federation liquidation legal entity entails its termination without the transfer of rights and obligations by way of succession to other persons, with the exception of cases provided for by federal law.

A legal entity can be liquidated both voluntarily and involuntarily. Voluntary liquidation is carried out by decision of the founders of a legal entity, forced liquidation - in court.

The liquidation of a legal entity is considered completed, and the legal entity is considered to have terminated its activities after the relevant entry is made in the Unified State Register of Legal Entities, as stated in paragraph 6 of Art. 22 of the Federal Law of August 8, 2001 N 129-FZ "On state registration legal entities and individual entrepreneurs";

Declaring an individual entrepreneur bankrupt in accordance with the Federal Law of October 26, 2002 N 127-FZ "On Insolvency (Bankruptcy)" (hereinafter - Federal Law N 127-FZ) (in terms of arrears and debts not repaid due to insufficient property of the debtor ).

Article 214 of the Federal Law N 127-FZ stipulates that the basis for declaring an individual entrepreneur bankrupt is his inability to satisfy the claims of creditors for monetary obligations and (or) pay off the debt on mandatory payments.

We draw your attention to the Letter of the Ministry of Finance of Russia dated May 20, 2010 N 03-02-08 / 32, which addresses the issue of applying Art. 59 tax code Russian Federation. According to the said article, the arrears attributed to individual taxpayers, payers of fees and tax agents, the payment and (or) collection of which turned out to be impossible due to economic, social or legal reasons, is recognized as uncollectible and written off for federal taxes and fees in the manner established by the Government Russian Federation. These rules also apply when writing off bad debts for penalties and fines.

The decision to recognize as uncollectible and write off debt from an individual entrepreneur - payer of insurance premiums, declared bankrupt in accordance with Federal Law N 127-FZ, acts of reconciliation of settlements for which the tax authorities have not been transferred, is taken by the state social non-budgetary fund in terms of the relevant debt.

Based on Art. 60 of Law N 212-FZ, which regulates the procedure for collecting by the Pension Fund of the Russian Federation arrears (debts) on insurance premiums for compulsory pension insurance, penalties and fines formed as of December 31, 2009 (inclusive), the specified arrears (debt), the collection of which turned out to be impossible due to economic, social or legal reasons, is recognized as hopeless and written off in the manner established by the Government of the Russian Federation in accordance with Art. 23 of Law N 212-FZ.

The issue of declaring an individual entrepreneur bankrupt in accordance with Federal Law N 127-FZ is also considered in the Letter of the Ministry of Economic Development of Russia dated December 13, 2010 N D06-4750. The letter notes that, in accordance with Art. 9 of Federal Law N 127-FZ provides for the obligation of an individual entrepreneur to file a debtor's application with an arbitration court, including if:

Satisfaction of the claims of one creditor or several creditors leads to the impossibility of performance by the debtor monetary obligations or obligations to pay mandatory payments and (or) other payments in full to other creditors;

Foreclosure on the debtor's property will significantly complicate or make impossible the economic activity of the debtor;

The debtor meets the signs of insolvency and (or) signs of insufficiency of property.

In this case, the debtor's application must be sent to the arbitration court as soon as possible, but not later than one month from the date of occurrence of the relevant circumstances.

It should be borne in mind that in accordance with paragraph 2 of Art. 10 Federal Law N 127-FZ violation of the obligation to file an application on time in the cases established by Art. 9 of Federal Law N 127-FZ, entails subsidiary liability of persons who are entrusted with the obligation to make a decision on filing an application by the debtor with the arbitration court and filing such an application for the debtor's obligations that arose after the expiration of the period;

The death of an individual or a court decision declaring him dead.

In accordance with paragraph 2 of the Guidelines for the organization of work on the recognition of uncollectible and write-off arrears on insurance premiums for mandatory pension insurance and compulsory health insurance, debts on penalties and fines, approved by the Order of the PFR Board dated June 24, 2011 N 228r ( hereinafter - Guidelines N 228r), the decision to recognize arrears and debts as uncollectible and write off is made on the basis of:

Extracts from the United state register legal entities containing information on the termination of the activities of a legal entity - in the event of liquidation of an organization paying insurance premiums in accordance with the legislation of the Russian Federation;

Copies of the ruling of the arbitration court on the completion of bankruptcy proceedings, certified by the official seal of the arbitration court, issued in accordance with Federal Law N 127-FZ, in the event that the payer of insurance premiums - an individual entrepreneur is declared bankrupt;

Copies of the death certificate of an individual - in the event of the death of the payer of insurance premiums - an individual;

Copies of the death certificate of an individual or a copy of a court decision declaring an individual dead - in the event that the court declares the payer of insurance premiums - an individual to be dead.

Note! Depending on the type of insurance premium, the decision to recognize arrears and debts as uncollectible and to write them off is made by different bodies:

With regard to contributions for disability and maternity, it is accepted by the FSS of the Russian Federation (clause "b", clause 2 of Resolution N 820);

With regard to contributions to the OPS and MHI, the body authorized to accept it is the FIU (paragraph "a", paragraph 2 of Resolution N 820). At the same time, in fact, it is accepted by the PFR branches and the territorial bodies of the PFR subordinate to them, to which the Pension Fund of the Russian Federation has transferred the appropriate authority (clause 3 of Methodological Recommendations No. 228r).

The decision to recognize as uncollectible and write off arrears and debts, in accordance with clause 3 of Methodological recommendations N 228r, is made:

PFR branches, if the amount of arrears and debts to be recognized as uncollectible is 1 million rubles. and more;

Territorial bodies of the PFR, subordinated to the branches of the PFR, at the place of registration of the payer of insurance premiums, if the amount of arrears and debts subject to recognition as uncollectible is less than 1 million rubles.

In order to make a decision, in the PFR branches and the territorial bodies of the PFR subordinate to them, commissions are created to recognize arrears in insurance premiums and debts on accrued penalties and fines as uncollectible and write off (paragraph 4 of Methodological recommendations N 228r).

The commission consists of at least three employees of the territorial body of the PFR. The committee must include:

The head or deputy head of the territorial body of the PFR, exercising control and coordination of the activities of the territorial body of the PFR for the administration of insurance premiums;

The head of the structural unit, whose competence includes the organization of the administration of insurance premiums;

Chief accountant of the territorial body of the PFR.

The meeting of the commission is competent with the participation of all its members. Minutes are kept at the meeting of the commission.

The procedure for the work of the commission and its personal composition are approved by order of the territorial body of the PFR.

In order to consider the issue of recognizing arrears and debts as uncollectible and writing off arrears and debts, the territorial body of the PFR, using the software and hardware complex "Insurers" (hereinafter referred to as the PTC "Insurants"), forms lists of payers of insurance premiums registered with such a territorial body of the PFR, by calendar years deregistration and for the above cases of deregistration of payers (insurants).

If the documents specified in paragraph 2 of Methodological Recommendations N 228r are available, a certificate of arrears on insurance premiums, penalties and fines for compulsory pension insurance and compulsory medical insurance is prepared for each payer (Appendix N 1 to Methodological recommendations N 228r).

The amount of arrears and debts included in the certificate must be confirmed by the data contained in the documents of the payer of insurance premiums:

Sheets of payment of insurance premiums for compulsory pension insurance (form ADV-11) contained in the PTK "Insurants";

Calculations of advance payments (declarations) on insurance premiums for compulsory pension insurance for persons making payments to individuals for the period in which arrears and debts were formed, subject to recognition as uncollectible and written off;

Calculations on accrued and paid insurance premiums for compulsory pension insurance to the Pension Fund of the Russian Federation and for compulsory medical insurance to compulsory medical insurance funds, accounted for in the software and hardware complex "Administration of insurance premiums" (hereinafter - PTK DIA);

Registers of payments (payment documents) starting from the day of formation of arrears to the day of receipt of the last payment;

Claims for payment of arrears on insurance premiums, penalties and fines;

Decisions on the recovery of arrears on insurance premiums, penalties and fines issued by the territorial body of the PFR before January 1, 2010;

Decisions of the territorial bodies of the Pension Fund of the Russian Federation on the recovery of arrears on insurance premiums, as well as penalties and fines at the expense of funds held in the accounts of the payer of insurance premiums in banks;

Resolutions of the territorial bodies of the PFR on the collection of insurance premiums at the expense of the property of the payer of insurance premiums - an organization or an individual entrepreneur;

Judicial acts;

Other documents confirming the amount of arrears and debts.

A document confirming the basis for making a decision specified in paragraph 2 of Methodological recommendations N 228r;

Reference;

Documents confirming the amount of arrears and debts.

Such an inventory and the documents indicated in it are submitted for consideration to the commission.

Note! The form of the decision taken by the commission on recognizing as uncollectible and writing off arrears on insurance premiums to state off-budget funds and debts on accrued penalties and fines was approved by Order of the Ministry of Health and Social Development of Russia dated January 11, 2010 N 5n "On approval of the form of the decision on recognizing uncollectible and writing off arrears on insurance premiums to state off-budget funds and arrears on accrued penalties and fines "(Appendix N 2 to Methodological recommendations N 228r).

The decision is made in original copies according to the number of off-budget funds, the arrears and debts to which are recognized as uncollectible, plus one original copy.

With regard to the arrears arising from billing periods 2002 - 2009 and for the reporting (calculation) periods from January 1, 2010, as well as debts on penalties and fines accrued on the corresponding arrears in relation to the same payer of insurance premiums, separate decisions are made.

In cases where, based on the results of consideration of documents in relation to the payer of insurance premiums, the commission recognizes that there are no grounds for making a decision or not all the documents necessary for its adoption have been submitted, the documents are returned with explanations in writing. Information about such a payer is not included in the minutes of the commission.

In accordance with clause 13 of Methodological Recommendations N 228r, registration of decisions is carried out in the register of decisions on deeming uncollectible and writing off arrears on insurance premiums and arrears on accrued penalties and fines of the territorial body of the PFR in which the decision was made.

The territorial bodies of the PFR compile monthly a register of decisions made by the commission of this territorial body of the PFR in the previous month regarding the arrears in insurance premiums for mandatory pension insurance, formed for the reporting (calculation) periods from January 1, 2010, as well as arrears in penalties and fines (hereinafter - registry). Such a register must be submitted to the FIU no later than the 10th day of the month following the month in which the decision was made, with one original copy of each of the decisions attached.

The structural subdivision of the PFR branch, whose competence includes the functions of organizing the administration of insurance premiums, monthly, by the 25th day, forms a statement of decisions made in the previous month on declaring uncollectible and writing off arrears on insurance premiums for compulsory pension insurance, debts on penalties and fines (hereinafter - statement). The list includes decisions adopted by the commissions branches of the PFR and subordinated to them territorial bodies of the PFR, in respect of the arrears formed for the reporting (settlement) periods from January 1, 2010, as well as arrears in penalties and fines. Statement on hard copy and electronically transferred to the treasury department of the PFR branch. The statement is transmitted with the application of one original copy of the decision.

The treasury department of the FIU branch writes off amounts accounts receivable, recognized as uncollectible in the manner prescribed by budget legislation and in accordance with the requirements of the instruction of the Ministry of Finance of Russia on budget accounting. After the accounting of the PFR branch, the operation to write off the arrears and debts of the statement and one copy of the decision remain in storage in the treasury department of the PFR branch.

Original copies of decisions on the number of off-budget funds are sent to the territorial body of the PFR, subordinate to the PFR department.

To the tax authorities - decisions on recognition as uncollectible and write-off in respect of arrears in insurance premiums for compulsory pension insurance, formed during the billing periods of 2002-2009, as well as arrears in penalties and fines;

To the Federal Fund and territorial funds of compulsory medical insurance - decisions on recognition as uncollectible and write-off in respect of arrears in insurance premiums for compulsory medical insurance, formed for the reporting (calculation) periods from January 1, 2010.

Based on the decision, the territorial body of the PFR, subordinate to the PFR department, enters information on the write-off of arrears on insurance premiums and arrears on accrued penalties and fines:

In PTC "Insurants";

In PTK ASV.

The payer of insurance premiums is assigned the status of the insured "Removed from the register with recognized uncollectible arrears". One original copy of the decision is kept in the file of the payer.

From the date of the decision, the written-off arrears and debts are not taken into account when reporting on arrears.

A. Ryzhkov

Journal Expert

Signed for print

What is the entrepreneur's risk?

An individual entrepreneur, along with tax payments, is obliged to pay insurance premiums to off-budget funds, including the Pension Fund of Russia. Contributions to the pension are payable either several times a year, for example, quarterly, or one-time - the right of choice belongs to the entrepreneur himself.

The amount of contributions payable to the fund depends on several factors, including whether the entrepreneur has employees, the amount of the minimum wage and the amount of income received by him. For example, if the annual income of an individual entrepreneur is less than 300 thousand rubles, then the amount of the mandatory payment will be a little more than 18,600 rubles per year.

Debts to the Pension Fund can cause many troubles - from the arrest of an account to the arrest of property. How to find out about the presence of debt to the FIU and what threatens the presence of debt - this will be discussed below.

Assessment of contributions

The amount of contributions payable is calculated based on the reporting sent by entrepreneurs to the authorized bodies. However, there are several features according to which the debt on mandatory payments of this kind is accrued. These features include:

the amount of contributions of an entrepreneur who does not pay wages to employees is fixed. Accordingly, a report on contributions “for oneself” is not required to be submitted to the Pension Fund;
if the entrepreneur did not provide information about his income to the IFTS and the PFR does not have information about the income of the individual entrepreneur, respectively, the debt on insurance premiums to the fund is calculated at its maximum amount - 148,886 rubles;
an entrepreneur may be exempted from paying contributions to the Pension Fund in a particular period of his activity, if during this period the individual entrepreneur did not carry out entrepreneurial activity. This rule applies, for example, to parental leave or sick leave on pregnancy and childbirth. About what documents are needed in order to exercise this right, you need to find out in the territorial department of the FIU.

There are several ways to find out about the debt on insurance contributions to the Pension Fund for an individual entrepreneur. The first way is to pay a visit to the territorial department of the PFR and clarify, using the TIN and other registration information, whether there is a debt to the fund, and what is its amount.

The second way to find out about the presence of debt on contributions is much easier. On the official website of the Pension Fund, after selecting the appropriate region, you need to go to the section " Personal Area entrepreneur” - here, after entering identification data, all information about whether there is a debt and in what amount will be reflected.

The procedure for collecting insurance premiums

Debts on insurance contributions to the Pension Fund can be collected in two ways:

Issuance by the Pension Fund bodies of a decision on the forced collection of debt and penalties on unpaid insurance premiums on time;
Receipt judgment for the recovery of a debt from the entrepreneur.

In any case, from the moment the enforcement document comes into force, the entrepreneur has the so-called deadline for voluntary execution - the period during which the debt to the fund must be repaid. Otherwise, the foundation has the right to transfer the document to a specialized state structure - Federal Service bailiffs, where the debt will be collected using special measures and sanctions.

The procedure for forced collection of debt

So, the FSSP of Russia is a specialized agency whose functions include the enforcement of any debt confirmed by a court decision or other executive document. The debt when transferring the case to the bailiff can be paid either directly to the FIU or through the deposit account of the FSSP of Russia. In both cases, the debt to the Pension Fund after receipt on the personal account of the PFR will be considered canceled.

It should be borne in mind that the entrepreneur is personally liable for his debts, including personal property. This provision of the law gives bailiffs the right to apply a full range of measures to individual entrepreneurs enforcement. In other words, if the debt is not repaid voluntarily or a document is not provided stating that there is no debt on insurance premiums, bailiff has the right:

seize the entrepreneur's property with its subsequent sale and transfer of the proceeds towards the debt on insurance premiums;
to foreclose on the money in the bank accounts or in the cash desk of the entrepreneur;
to foreclose on income, incl. and for the pension of the debtor-IP;
apply a measure in the form of a temporary ban on travel outside the Russian Federation until the moment when the debt is repaid;
limit the right to registration actions With real estate or vehicles owned by an entrepreneur in debt.

Such troubles can be avoided only in one way - by timely payment of insurance premiums in the required amount. Debt on insurance premiums to the Pension Fund can also be the reason for initiating bankruptcy proceedings against the entrepreneur.

Posted: 07/25/2015

Dear Maxim.

How to find out the debt to the pension fund for individual entrepreneurs online?

Unfortunately not! Now you owe for 2015, 2014 and 2013. The rest of the debt is repaid by the statute of limitations. You will have to file a petition in court (the UPFR will definitely go to court and you will be charged) to apply the consequences of missing the deadline for earlier periods of debt. The company deducted for you as an employee. But you must as an IP. Only for these periods, insurance premiums for compulsory pension insurance and compulsory health insurance are not calculated and paid:
1) the period of military service, as well as other service equivalent to it, provided for by the Law of the Russian Federation of February 12, 1993 N 4468-I "On pension provision persons who have passed military service, service in the internal affairs bodies, the State Fire Service, bodies for the control of the circulation of narcotic drugs and psychotropic substances, institutions and bodies of the penitentiary system, and their families";

2) the period of receipt of benefits for compulsory social insurance during the period of temporary disability;

3) the period of care of one of the parents for each child until he reaches the age of one and a half years, but not more than six years in total;

6) the period of care provided by an able-bodied person for a disabled person of group I, a disabled child or a person who has reached the age of 80 years;

7) the period of residence of spouses of military servicemen under contract, together with their spouses, in areas where they could not work due to the lack of employment opportunities, but not more than five years in total;

8) the period of residence abroad of spouses of employees sent to diplomatic missions and consular offices of the Russian Federation, permanent missions of the Russian Federation to international organizations, trade missions of the Russian Federation in foreign states, representative offices of federal executive bodies, government agencies at federal bodies executive authorities or as representatives of these bodies abroad, as well as to representative offices of state institutions of the Russian Federation (state bodies and state institutions of the USSR) abroad and international organizations, the list of which is approved by the Government of the Russian Federation, but not more than five years in total (h .6 Article 14 of the Federal Law of July 24, 2009 N 212-FZ "On insurance contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund"

Good luck. My answer is your feedback.

In 2018, all debts on taxes and insurance premiums will be written off from individual entrepreneurs

Starting in 2018, "bad" tax debts for periods up to January 1, 2015 and insurance premiums for periods up to January 1, 2017 will begin to be written off from individual entrepreneurs.

Law No. 436-FZ of December 28, 2017 amended the Tax Code of the Russian Federation in terms of writing off from individual entrepreneurs and citizens the amounts of mandatory payments recognized as uncollectible.

So, for individual entrepreneurs, the specified law provides for a tax amnesty for all taxes, except for:

Mineral extraction tax.
excises.
VAT on the movement of goods through the territory of the Russian Federation.

"Pay off" will be all the debt that arose for the periods before January 1, 2015, as well as all penalties accrued before the decision to write off the debt from the individual entrepreneur.

The tax amnesty will also affect debts on fixed insurance premiums formed before January 1, 2017, provided that the individual entrepreneur did not conduct business and did not submit reports, in connection with which insurance premiums were accrued to him in the maximum amount.

Recall that until 2017, for the lack of information about the income of individual entrepreneurs, the Pension Fund had the right to charge additional insurance premiums based on the estimated maximum income.

Debts in the Pension Fund: how for an individual entrepreneur to find out about the debt in the Pension Fund

The calculation was made according to the formula: 8 x minimum wage x 26% x 12. This amount will be deducted from the IP.

Ordinary citizens will be written off debts for property taxes: for land, transport, property for periods up to January 1, 2015, as well as penalties until the tax authority makes a decision to cancel the debt.

Also, by the specified legal act, instead of benefits in the form of non-taxable land tax a minimum of 10 thousand rubles, introduced benefits in the amount of tax-free value of the cadastral value of 600 square meters. m (6 acres) of area land plot for privileged categories of taxpayers (which now includes pensioners).

Debts from individual entrepreneurs and individuals will be written off by the tax authority on their own, without prior application of the taxpayer.

At the same time, the said bill does not provide for the obligation to inform entrepreneurs or citizens about the debt written off and its amount, in connection with which the individual entrepreneur or citizen will need to independently clarify this information in the IFTS at the place of registration.

Additionally, it should be noted that the tax amnesty will affect only individual entrepreneurs and citizens, organizations were not included in the list of amnesty persons.

The law entered into force on the day of its official publication (published on the Official Internet Portal of Legal Information on December 29, 2017).