Assignment of debt. Law, accounting, tax accounting

Legal essence of the assignment

An assignment is a transfer of any rights and obligations between legal entities (or individuals).

If time passes and the debtor does not fulfill his obligations, their fulfillment can be demanded. But it happens that the creditor does not have the opportunity to spend time and effort on collection, and at the same time he agrees to receive back not all the funds, but only part of them. He cedes his right to this to a third party, receiving an agreed remuneration for this. It usually represents a certain portion of the uncollected debt. But the assignment of debt can also be done free of charge.

When can a claim be assigned free of charge ?

The following terminology is used:

assignor - the one who initiates the transfer of rights, most often it is a creditor;
assignee – “secondary creditor”, the party who receives rights after assignment;
title – also called “assignment agreement”, a legal document for the assignment of rights.

Legal entities often use assignment of rights during reorganization, transferring rights to another legal entity, and in fact to themselves.

How to assign a claim under a writ of execution ?

Important nuances

The assignor is responsible for the legality of the assigned rights and the authenticity of the supporting documents.
The assignor is not responsible for the further implementation or non-realization of the transferred rights (does not guarantee payment of the debt).
The debtor should be informed about the assignment of the right to claim the debt, but his consent to assignment is not required.
If, as a result of the assignment of rights, the debtor incurs additional expenses, both creditors shall reimburse them in equal shares.

NOTE! In Russian legislation, apportionment is regulated by Articles 382-390 of the Civil Code of the Russian Federation.

Not subject to grading

Not all rights can be transferred to third parties for exercise. The law stipulates a number of obligations that must be fulfilled by the parties directly involved:

compensation for moral damage;
restoring damaged reputation in the business world;
non-property obligations.

How should a new debtor take into account the transfer of debt from a supplier (contractor, performer) ?

Allowed to cede

Legal entities, if desired, can transfer to each other the rights to claim debts arising as a result of:

business transactions;
court decisions;
insurance policies;
obligations to personnel in the event of liquidation or reorganization of the company;
agreements on additional liability;
any other property obligations.

How should the original debtor take into account the transfer of debt to its buyer (customer) ?

What a buyer needs to know before purchasing an apartment in a new building by assignment of rights, how the deal is concluded and what pitfalls exist with this scheme

You can buy an apartment in a new building not only from the developer. At the same time as the developer who builds the house, housing in the same building can be sold by private investors, legal entities and mutual funds. Buying an apartment in a building that has not yet been built is called assignment of claims (assignment agreement).

First of all, it is necessary to make a reservation that until the apartment building is put into operation, there is no apartment, even if it is actually built. The essence of this phenomenon is that the seller and buyer agree to transfer ownership of a non-existent object. The buyer assumes all the rights and obligations of the equity holder who was originally the seller, and the seller receives money in return.

Realtors and lawyers told RBC Real Estate about the pitfalls when purchasing apartments through the assignment of rights and how best to prepare for such a transaction.

Why use assignment

Assignment of rights is not the most obvious way to purchase an apartment in a new building. The vast majority of home buyers on the primary market prefer to deal directly with the developer: in Moscow, the share of such transactions is about 90%, reports the Best-Novostroy real estate agency, citing data from Rosreestr.

Based on the results of the first ten months of 2021, the share of concessions on DDU amounted to 10.9% of all transactions with new buildings - these are agreements signed by individual buyers both with other individuals and with companies selling apartments, notes Chairman of the Board of Directors Irina Dobrokhotova. Despite the fact that with the introduction of escrow, the scheme for registering assignments has changed somewhat, this, according to her, does not prevent the conclusion of such agreements, but the speed of transactions largely depends on how well the bank and the developer have worked out these mechanisms. It is also important that the old scheme for selling apartments (without escrow) still prevails in Moscow projects, the expert notes.

Most of the transactions are carried out on the assignment of rights from legal entities (2,762 transactions, 6.7%) from January to October, the fewer are assignments from individuals (1,766 transactions, 4.2%), indicated in Best-Novostroy.

Transactions with new buildings in Moscow for the period January - October 2020

All DDUs with individuals, including wholesale 41,224

Transfer from a legal entity to an individual 2762 (6.7%)

Transfer from individual to individual 1766 (4.2%)

The total number of assignment agreements with individuals is 4528 (10.9%)

In the current volume of supply of new buildings in Old Moscow (841 buildings of all classes in residential complexes with apartments and apartments) exclusively under assignment agreements, according to Best-Novostroy, sales are carried out only in 12 buildings. In another eight buildings, developers offer both DDU and assignment of DDU with the old form of payment without escrow. The lion's share of buildings (530 units) are sold under DDU - with and without escrow, which does not exclude the further resale of such apartments under agreements of assignment of rights by the original shareholders. The share of cases with escrow now accounts for almost 32% of the total number of cases on sale. In almost 34% of buildings, apartments are sold under other forms of contracts - reservation, purchase and sale, or preliminary agreement. In the apartment segment, there is also a contract for the purchase of future real estate.

With such a wholesale sale, the developer can provide the legal entity with a discount. Such a mechanism is beneficial for the developer, since the developer can immediately get rid of dozens of apartments. The buying company also finds a benefit: usually such companies hold the purchased lots in order to later sell them to individuals at a higher cost.

The assignment may be in demand if the buyer wants an apartment with not the most common characteristics and the developer has already run out of such lots. For example, in a residential complex there may be only two or three offers of four-room standard-class apartments. Such apartments can be purchased in advance by investors and then resold to ordinary buyers at a higher price.

Usually, upon assignment, the price will be higher, since the construction readiness of the property increases - especially if the apartment was bought at the initial stage of readiness, and upon assignment it is sold closer to the time of commissioning of the house. The price of the assignment may also include a commission from the developer (if it is implied for registration of the assignment) - especially if the assignment offers an object with special characteristics that the developer does not have left for sale.

Who sells apartments on assignment

Sellers who offer housing in a new building by assignment can be divided into three groups, said Dmitry Panteleimonov, managing partner of the real estate agency National Real Estate. “The first group is investors. These include individuals who purchase an average of one to ten apartments, legal entities whose investment volumes are measured in hundreds of millions of rubles, and closed-end mutual funds (that is, closed-end mutual investment funds) specializing in real estate,” Panteleimonov listed.

“The second group is contractors,” the expert continued. — These are legal entities that provided various services, from construction to marketing. The most common among them are construction contractors, with whom the developer partially or fully pays by square meters. The third group is individuals who bought real estate for themselves, for their family members or for rent, but for various reasons decided or were forced to sell it.”

Apartment assignment agreement: how to complete the deal

The assignment of rights to an apartment should occur as follows. You need to make sure that the rights really belong to the person from whom you plan to purchase the rights to an apartment in a building under construction, notes Zhanna Kolesnikova, head of the commercial practice of the law firm Pleshakov, Ushkalov and Partners.

Currently, the rights to apartments in houses under construction are mostly formalized by an agreement of participation in shared construction (DDU). Such an agreement is concluded with the developer - a legal entity or individual entrepreneur who has been allocated a plot of land for construction and who has permission to build a residential building. The DDU must be registered in the Unified State Register and is considered concluded from the moment of registration - this can be verified by a stamp containing the words “state registration of the agreement has been made” on the original contract and/or by ordering an extract from the Unified State Register for the land plot on which the house is being built. If the state registration of the DDU has not been carried out, then it is not worth acquiring rights to an apartment under such an agreement. As a rule, this indicates violations on the part of the developer.

“It is also worth making sure that there is no pledge of rights under the DDU - in the case of a pledge, a stamp is placed on the DDU itself containing the words “state registration of the pledge of rights under the DDU has been carried out” or “state registration of the mortgage has been made.” The extract from the Unified State Register of Real Estate in the section about the corresponding shared construction object (apartment) will contain the words “a pledge of the right of claim of a participant in shared construction under an agreement for participation in shared construction,” says Kolesnikova.

The lawyer also recommends that you familiarize yourself with the building permit and project declaration to make sure that your apartment will actually be built. “If the land plot is provided to the developer on a lease (sublease) basis, additionally check the relevant agreement - the lease period should not end earlier than the planned date for putting the house into operation. Otherwise, if the developer has problems with extending the land lease, there is a high risk that the house will not be built on time,” says Kolesnikova. The developer is obliged to provide all these documents to each applicant or publish them on his website.

Zhanna Kolesnikova, head of commercial practice at the law firm Pleshakov, Ushkalov and Partners:

— It is necessary to check that the sellers have paid the price of the apartment in full. The fact is that the assignment of rights to an apartment can be made after the shareholder has paid the entire price of the apartment under the DDU. In this case, the developer's consent to the assignment is not required. If the price of the apartment is not paid in full, the obligation to repay the remaining debt will pass to you along with the rights to receive the apartment. And in this case, the developer’s consent to conclude an assignment agreement is necessary.

To verify payment of the apartment price under the DDU, it is best to ask for a certificate from the developer, in which he confirms that the funds under the DDU have been paid in full.

In addition to signing the agreement for the assignment of rights under the DDU, the former shareholder is obliged to give you the original DDU. The only exception is in a situation where one DDU is concluded in relation to several objects (apartments or non-residential premises), and under an assignment agreement the rights to one or more of them are transferred to you, but not to all. In such a situation, ask to be given a copy of the DDU, certified by the previous shareholder and the developer.

The agreement for the assignment of rights under the DDU is subject to state registration in the Unified State Register of Real Estate. To register it, the parties to the agreement (the former and the new shareholder) submit applications through the MFC to the body that carries out state registration of rights (Rosreestr), and the assignment agreement itself is attached to the applications - one for each party and one for the registering authority. In addition, when submitting applications, you must pay a state fee for registering an agreement in the amount of 350 rubles.

Is the developer's consent required?

The developer's consent when concluding an assignment agreement is not required if such a clause is not specified in the agreement.

Developers agree to sell wholesale lots of apartments to investors; on the other hand, entering the market of a large pool of apartments in their own buildings, but at lower prices, is not profitable for them. Therefore, sometimes they include a condition in the share participation agreement that the transaction for the assignment of rights must obtain his (the developer’s) permission. It also stipulates the amount of the commission that the construction company charges for the assignment. Its size can be indicated both in monetary terms (several tens of thousands of rubles) and in percentage terms (can reach up to 4% of the transaction amount).

Documents required for the assignment of an apartment:

— identity document (passport); — document confirming payment of state duty;

— registered childcare center;

— agreement on the assignment of the right of claim with all amendments and annexes;

— notarized consent of the other spouse to conclude an agreement (if the object is acquired as joint property);

— consent of the guardianship and trusteeship authority to the assignment of the right of claim under the contract, if the participant in shared construction is acting on behalf of a person under 14 years of age, or a person recognized by the court as incompetent;

— written consent of the developer to assign the right of claim under the contract (if required)

As a rule, the developer can provide the form of the agreement for the assignment of rights under the DDU. The most important thing that should be specified in such an agreement is:

— the rights to the apartment under the DDU are transferred to you in full;

— the apartment to which the rights under the DDU are transferred to you;

- the amount you pay for the transfer of rights to the apartment to you;

- which of the parties to such an assignment agreement - the previous or new shareholder - and within what time period must notify the developer about the assignment of rights.

What can be dangerous about assignment: risks

The main pitfall that needs to be paid attention to is the fact that not only rights are transferred, but also obligations under agreements for participation in shared construction. “If the previous participant (assignor) did not pay the entire amount under the agreement, then the new participant (assignee) will have to pay his debts. Therefore, it is necessary to request payment documents confirming the actual payment of the participation agreement price, as well as a certificate from the developer about the mutual settlements made and the absence of payment arrears,” recommended Natalia Kuznetsova, general director of the BON TON real estate agency.

If the assignment is concluded between individuals, then the law allows payment of the assignment price before the state registration of the agreement, Kuznetsova explained. This, according to her, creates the opportunity to sell the rights several times - therefore it is advisable to use a safe deposit box for mutual settlements.

The main risk factor when purchasing an apartment by assignment of rights can be called the reliability of the developer, according to National Real Estate. “You must be sure that the house will be delivered within the time period specified in the share participation agreement,” said Dmitry Panteleimonov. — You also need to check whether the seller/investor has fulfilled payment obligations to the developer or previous owner. As a rule, this is confirmed by an act of fulfillment of financial obligations, which is signed by the developer and the investor. If there are more links in the transaction chain, then for each of them it is necessary to check the fulfillment of payment obligations.”

“It is also worth paying attention to how the investor fulfilled his payment obligations: by paying in cash, by offset for work performed, by a bill of exchange, or in some other way,” Panteleimonov advised. — If you are purchasing an apartment from a legal entity, request documents confirming the authority of the signatory to complete this transaction. Sometimes, in the organization's charter, the general director does not have the authority to alienate property. In the case of closed-end mutual funds, such risks are minimal, since all transactions first require the consent of a special depository or investment committee.”

A separate factor is the issue of price. “By purchasing an apartment by assignment of the right of claim, you receive the right to claim for the amount specified in the first share participation agreement. It is usually significantly less than the price you pay the investor. That is, in the event of a delay in putting the house into operation and legal disputes arise with the developer, the base price for calculating all penalties and fines in your favor will be the price of the agreement between the developer and the first owner, and not the price that you paid to the investor,” they said in “ National Real Estate".

Tax on the sale of apartments by transfer in 2021

Tax on the transfer of rights to living space with shared participation is paid, since it is considered that the seller received a certain income from this transaction. The tax is calculated not on the entire amount received, but on the difference between the seller’s income and expenses. To use this opportunity, a citizen must prove his expenses for acquiring the rights to an apartment. The tax ranges from 13% of the profit received for residents of our country and 30% for non-residents.

That is, if you bought an apartment for 5 million rubles. from the developer at the excavation stage, and you sell it after some time for 6 million rubles, then you will have to pay tax on the difference in price - from 1 million rubles. The amount of contributions to the state budget in this case will be 130 thousand rubles.

When purchasing an apartment, a share in it and purchasing housing through assignment of rights (cession), you will not have to pay taxes. In this case, the buyer can take advantage of a tax deduction on the purchase of housing. Each person is given a tax deduction for an apartment once. There is a limit from which the tax deduction will be calculated: 2 million rubles. — for construction or purchase of housing, 3 million rubles. - when paying off mortgage interest. Thus, the amount of property tax deduction can be up to 650 thousand rubles: 260 thousand rubles. - for the purchase of an apartment and 390 thousand rubles. - interest paid on the mortgage.

If the cost of the apartment is less than 2 million rubles, then the deduction is calculated depending on the purchase amount, and the balance can be transferred to the purchase of other objects. The mortgage interest deduction is returned once and is valid for one property.

Types of assignment agreements

Their classification depends on what the primary and secondary creditors agreed upon.

Paid and gratuitous assignments

The financial benefit of the assignor from the assignment of rights is more common - he returns the credited funds in a shortened form, saving time and reducing the risks of non-repayment. Often, a non-financial benefit is provided, for example, the assignee writes off the assignor's receivables or counts the assignment as fulfillment of any past obligations of the “primary” creditor.

How to draw up a debt transfer agreement ?

IMPORTANT! It is extremely rare for organizations to arrange gratuitous assignments of debt, because this entails difficulties with the calculation and payment of taxes.

How to register an assignment

This transaction is essentially not independent, because it is always based on another, primary transaction, secured by the relevant agreement, for example, purchase and sale, exchange, gift, etc. To transfer the rights to claim the debt, another agreement is concluded, legally representing a purchase. sale of these rights. It has legal consequences only after being concluded in writing.

What is the essence of relationships

An assignment agreement is a form of agreement that involves the sale of one’s receivables. This may be relevant in different situations. Let's look at a few examples.

Ivanov owes Petrov 100,000 rubles. He can't give them away yet. But Sidorov owes him the same amount. Ivanov cedes his right of claim to Petrov and gets out of the “debt guarantee”. Now Sidorov owes 100,000 rubles to Petrov.
What the parties get as a result:
The assignor (Ivanov) is released from the debt burden.
The assignee (Petrov) increases the chances of repayment of the debt, since Sidorov is more wealthy than Ivanov. The opposite situation should not exist, because then Petrov would not have made the deal.
The debtor (Sidorov) does not care who ultimately repays the debt. For him, the conditions have not changed.

At the end, they can sign an act of fulfillment of obligations under the assignment agreement - a sample confirmation that the parties no longer have claims against each other. Unlike the main document, it can be either two-sided or three-sided.

The illustration below shows a template - an assignment agreement; You can download a sample if you want to create your own database of document templates.

Algorithm for registration of assignment

Agreement. The first step should always be to reach a verbal agreement that the rights to claim the debt must be transferred.
Drawing up an assignment agreement. The specifics depend on the conclusion of the “primary” contract, the rights of which are assigned. If it was in a simple form, then the assignment does not have to be notarized. But the vast majority of transactions are registered with lawyers, which means that agreements on the transfer of rights also need to be notarized. Agreement options:
tripartite – the debtor is a party to the contract.
Informing the debtor about a change of creditor is a mandatory condition of the assignment agreement. This is done by giving written notice.
The interaction of the new creditor with the debtor is the adoption of measures required by law to collect the debt.

Elements of an assignment agreement

The agreement on the transfer of rights of claim must contain the following mandatory elements:

full names of all parties to the transaction, their legal details;
the most specified subject of the agreement – the right to be transferred;
basis – details and names of the primary agreement, the obligations under which are assigned;
the rights and obligations of each participant;
deadlines for fulfilling obligations;
the amount of financial obligations (not the entire debt can be assigned, but only a part);
guarantees of liability of the parties;
signatures of authorized representatives, seals of organizations.

IMPORTANT INFORMATION! Assignment may be declared invalid if the agreement is concluded in circumvention of the prohibition on such an action. For example, the right to real estate under construction is transferred when information about the bankruptcy and liquidation of the development company is concealed, or the primary contract contains a clause about the inadmissibility of transfer of rights.

NU at the assignor

The loss on the operation is 10,000 rubles.

If the payment deadline has already arrived, the loss is recognized in full. If the payment deadline has not arrived, the loss cannot be taken into account in full in tax accounting. Here you should be guided by the provisions of Art. 279 of the Tax Code of the Russian Federation and the accounting policies of the organization.

It should be noted that the specifics of reflecting losses in such a situation are specially allocated several lines in the income tax return.

In our example, the payment deadline has arrived, so we will take into account the entire amount of the loss in the NU.

Tax circumstances of assignment

The transfer of rights has a direct impact on the tax obligations of all parties to the transaction:

For the debtor, from the point of view of taxes, nothing changes, VAT is not restored, as explained in paragraph 3 of Art. 170 of the Tax Code of the Russian Federation;
the transferor does not pay VAT as a seller, despite the fact that the transferred property right must be subject to taxation. In Art. 155 of the Tax Code of the Russian Federation there are no direct instructions for calculating VAT upon assignment of debt.
the assignee , who has received the right to claim the debt, will have to pay VAT only if we are talking about transactions subject to this tax (sale of goods, fees for services, performance of work). If the former creditor provides an invoice, the “secondary” one will be able to provide VAT for deduction (Article 171-172 of the Tax Code of the Russian Federation).

Is it possible to include additional terms and conditions?

If the assignment is accompanied by any additional conditions, it will already be considered factoring. This is a common example of an assignment agreement between legal entities. In such a situation, one company (usually having impressive working capital) buys the rights of claim from another.

For example, Alpha LLC owes Omega LLC 20 million rubles. The latter is experiencing serious financial problems due to such large accounts receivable. Then it decides to resort to factoring under the following conditions:
JSC Delta acquires rights of claim against LLC Alpha.
Omega LLC receives 19 million rubles, and one million goes towards payment for factoring services. In this case, Delta JSC pays him the specified amount immediately.
For Alpha LLC, the amount of debt does not change. It still owes the same 20 million rubles, only now to another creditor.

Thus, an additional condition is the payment for redemption of the debt. It was required so that the party, which was initially not bound by obligations with either the creditor or the debtor, received its benefit from the transaction.

ConsultantPlus experts analyzed in detail what you need to know about the assignment agreement (assignment of the right of claim). Use these instructions for free.

Assignment agreement in 1C 8.3 with the assignor

The transfer of debt to the Assignee will be reflected in the sales document.

Fig.6 The transfer of debt to the Assignee will be reflected in the sales document

We create a new document for the sale of services, having two options for the input form to choose from.

Fig.7 Creating a new document for the sale of services

We fill out the document.

Fig.8 Filling

Assignment agreement in 1C 8.3 from the debtor

Automation of accounting at the debtor's enterprise implies the following actions: having received notification of a change of creditor, the debtor must transfer the amount of debt from one counterparty to another. To do this, use the “Debt Adjustment” document, which can be located in the “Purchases” and “Sales” sections.

Fig. 1 Purchases - Debt adjustment

Fig.2 Sales-Debt Adjustment

Create a new document Debt adjustment. In the document:

Type of operation – Transfer of debt; Transfer – Debt to the supplier.

We fill in the data on the creditor and the new supplier from the counterparties directory.

By clicking the “Fill” button, you can automatically generate a tabular part, and, if necessary, later adding the necessary parameters (in our case, these are a New Agreement and a New Account).

Fig.3 Fill in

Let's look at the entries in the document.

Fig.4 We look at the postings according to the document

Sometimes there is a need to reformat a document, but an error occurs - it is suggested that you first unapprove it. Here you can use the menu option using the “More” button.

Fig.5 Unconfirm