Penalty calculator for 44 FZ - online calculation of penalties

Entrepreneurs enter into contracts and expect payment on time. There is a penalty for delay.

We tell you how penalties are collected from the buyer, customer and supplier and what is the chance to pay less if they demand money from you for late payments.

We read:

§ 2 Penalty of the Civil Code of the Russian Federation - about the default penalty and the increased penalty under the contract with the counterparty.

Chapter 25 of the Civil Code of the Russian Federation - when the debtor is not to blame for the delay and it is pointless to demand a penalty.

Section Penalty of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 24, 2016 No. 7 - how the amount of the penalty is reduced in court.

Why is it necessary to carry out claims work?

In accordance with Part 6 of Article 34 of Federal Law No. 44-FZ, it is the responsibility in the event of a violation of the obligations stipulated by the contract by the supplier (contractor, performer).

Thus, in case of any violation of the obligations of the supplier (contractor, performer) under a contract concluded within the framework of the Law on the Contract System, the customer is obliged to send a claim to the supplier (contractor, performer) with a requirement to eliminate the violations.

And in accordance with Part 5 of Article 34 of Federal Law No. 44-FZ, sending a demand for payment of a penalty (penalty, fine) to the customer is the right of the supplier (contractor, performer) in the event of a violation of obligations under the contract by the customer.

But in accordance with Article 4 of the Arbitration Procedure Code of the Russian Federation, if the obligation to pre-trial resolve the dispute is not fulfilled (sending a claim and responding to the claim within a time limit), a person loses the right to judicial protection of his interests.

In particular, the customer under a government contract is subject to liability for inaction, provided for in Part 7 of Article 7.32 of the Code of Administrative Offenses of the Russian Federation.

Penalty upon termination of a contract

Penalties for termination of a work contract are provided for by federal law. Returning the prepayment and apologizing for missed deadlines is not enough. If the customer, in the application for termination, insists on paying him a penalty, he will have to pay. This rule also applies to clients-citizens and legal entities. However, payment of a penalty upon termination of the contract is made only at the request of the client or through the court. The penalty is calculated as a penalty for the use of other people's funds (Article 395 of the Civil Code of the Russian Federation). Until the completion certificate is signed, they are considered unfulfilled. It turns out that the contractor received the money and did nothing. This situation falls within the scope of Art. 395 of the Civil Code of the Russian Federation. The debtor will have to return the amount of the prepayment, the damage caused (if there is any and it is provable) and pay a penalty.

It is more profitable for debtors to resolve such issues voluntarily. The court will reduce the amount of the penalty, but will impose a fine for violation of the law and award compensation for the plaintiff’s legal costs, which may be much greater than the amount of the penalty.

How is the penalty calculated under a government contract?

The penalty calculator will help you calculate, in accordance with Part 7, Article 34 of Federal Law No. 44-FZ, the correct amount of the penalty (penalty) under the contract.

The amount of the penalty is established in the amount of one three hundredth of the key rate of the Central Bank of the Russian Federation effective on the date of payment of the penalty from the contract price, reduced by an amount proportional to the volume of obligations stipulated by the contract and actually fulfilled by the supplier (contractor, performer).

Our online penalty calculation calculator independently monitors changes in the key rate of the Central Bank of the Russian Federation.

The period during which the penalty is accrued begins from the day following the day of expiration of the deadline for fulfilling the obligation established by the contract, for each day of delay in the fulfillment by the supplier (contractor, performer) of the obligation stipulated by the contract, and ends on the day of actual fulfillment of the obligations (included in the period of delay)

There are exceptions; Part 7, Article 34 of Federal Law No. 44-FZ stipulates that if the legislation of the Russian Federation establishes a different procedure for calculating penalties, then a different procedure is applied.

Those. the procedure for calculating penalties provided for in Part 7 of Article 34 of the Law on the Contract System is general and is applied in cases where other laws do not establish a special procedure for calculating penalties. For example, in the field of energy supply in accordance with the Decree of the Government of the Russian Federation dated May 4, 2012. No. 442, an essential condition of the contract for energy supply or purchase and sale of electrical energy is also the responsibility of the parties, determined by this resolution.

Collection of penalties

In legal practice, a penalty is considered an effective way to protect the interests of the creditor and a form of civil liability. Collection of penalties has a number of advantages over compensation for losses. These advantages include the following:

• Damages can be recovered only if the damage is proven, while the penalty is paid for the very fact of violation of the terms of the contract or the obligations assumed. There is no need to prove damage.
• The amount of the penalty is predetermined, and therefore it can be collected faster.
• The penalty better reflects the essence of the specific relationship under the contract, since it is established taking into account the significance of the violations for the company or the state.

How to properly file a claim?

The claim is made in free form, but there are mandatory attributes:

• Name of the document – ​​usually indicates a claim or pre-trial claim.
• Addressee – the person to whom the claim is addressed;
• Addressee – the person on whose behalf the claim is made;
• The basis for the claim is a contract (agreement of the parties) for the supply of goods, performance of work, provision of services in accordance with which the Addressee has obligations to the Addressee.
• Addressee's requirement is a specific requirement of the Addressee to the Addressee in accordance with the terms of the contract or the legislation of the Russian Federation. For example, eliminating defects or replacing goods, etc.
• Time limit for fulfilling the requirement - a specific, reasonable and justified period must be indicated for fulfilling the requirement specified in the claim, after which the Addressee has the right to go to court.
• Signature of an authorized person – the claim must be signed by an authorized person of the Addressee, usually the head of the Addressee’s organization or a person to whom such powers are delegated by the head.
• Bank details of the Addressee - must be indicated if the request concerns the transfer of funds, for example, the return of an advance or the payment of a penalty (fine, penalty).
• In case of imposing a penalty, it is necessary to indicate the calculation of such penalty.

After calculating the penalty using our online calculator for calculating penalties under 44-FZ, you will be able to generate a sample claim.

The essence of the penalty for delay in a contract

The provision for the payment of monetary compensation in case of violation of the terms of the agreement is provided for by federal legislation, but the specific conditions for its implementation and the amount of payments are established by a written agreement. It can be reflected in one of the clauses of the contract or a separate document on the penalty. Collection of penalties under a contract is made upon the occurrence of certain conditions - exceeding the established deadlines.

To calculate penalties under a work contract, the period of delay and the value expression of unfulfilled obligations are important. If the agreement provides for the execution of work involving the supply of materials and equipment by the contractor, then the delimitation of the delivery period and the execution of installation (construction, finishing) work is important. In such cases, the text of the agreement or an appendix to it divides the cost of materials (products, equipment) and breaks down the stages - the delivery and installation time is indicated. With this wording, payment of the penalty under the contract is also broken down - for delivery and work separately.

For example, an order for the installation of custom-made door blocks requires a period of production, delivery to the customer and installation. If it is detailed, for example, 10 working days for manufacturing and delivery and another 3 days for installation, then when calculating the penalty, the delay in delivery and installation is taken into account separately. The delivery time may be missed, but the installation was completed on time - delivery on the 12th day or on the day of installation. In this case, the amount of the penalty under the contract is determined only by the number of days of delay in relation to delivery. Its calculation is based on the amount of products without taking into account the cost of their installation. This is how penalties are charged under a construction contract.

How to submit a claim?

The claim must be sent by registered mail or in another way that allows you to track receipt of the letter, to the address of the Addressee's location, i.e. the address that is indicated in the extract from the Unified State Register of Legal Entities/Unified State Register of Individual Entrepreneurs as the registered address of the person.

A copy or copy of the claim, as well as a shipping receipt or other document confirming the sending of the claim to the Addressee must be retained.

We do not recommend handing over the claim in person to avoid disputes in the future.

If the contract does not contain provisions on penalties

If sanctions are not established either by contract or by law, the injured party has the right to protect its interests by other measures provided for by the Civil Code:

1. The contractor has the right to demand interest for non-payment for work performed based on the key rate of the Bank of Russia (Article 395 of the Civil Code).
2. The customer has the right to refuse to fulfill the contract and demand compensation for losses from the contractor if he does not perform the work or performs it too slowly (Article 715 of the Civil Code). In this case, the contractor is obliged to return the advance received.

How long does it take to consider a claim?

The addressee who receives the claim is obliged to consider it and respond within the time period established in the contract.

If such a period is not established in the contract, then in some cases the terms are determined by law, for example, 10 calendar days are set for the policyholder’s response to a claim under compulsory motor liability insurance in accordance with the Law on Compulsory Motor Liability Insurance or 30 calendar days for claims for unjust enrichment in accordance with Part .5 Article 4 of the Arbitration Procedure Code of the Russian Federation.
In similar situations, we calculate the deadlines by analogy with established legislation, otherwise it is necessary to respond within a reasonable time (clause 2 of Article 314 of the Civil Code of the Russian Federation).

Is it possible to reduce the amount of fines?

Monetary sanctions for improper fulfillment of contractual obligations are collected in compliance with the mandatory claims procedure. Send a claim to the guilty party, describing the violation identified, the amount and calculation of penalties. If the guilty party does not respond to the claim, file an application for recovery in court.

If the amount of the penalty for violation of contractual terms is disproportionate to the damage caused, the guilty party has the right to file a claim in court to reduce it (Article 333 of the Civil Code of the Russian Federation).

How to reflect penalties in accounting

Depending on the type of tax (contribution), penalties can be reflected in account 91 or 99.

If penalties are paid under income tax, simplified tax system, UTII, unified agricultural tax, they are recorded as the debit of account 99.

Debit 99 Credit 68 - penalties accrued.

If penalties are paid on other taxes or insurance premiums, they are recorded in the debit of account 91. Debit 91-2 Credit 68 - penalties are accrued on taxes (except for income tax, simplified tax system, unified agricultural tax, UTII). If the organization applies PBU 18/02 and this is stated in the accounting policy, then the posting with the accrual of penalties is accompanied by the posting Debit 99 Credit 68, which reflects the recognition of a constant tax expense.

For insurance premiums, account 91-2 corresponds to account 69.

Debit 91-2 Credit 69 - penalties were accrued on insurance premiums.

Arbitrage practice

When applying norms when making decisions, courts are guided not only by legislation, but also by established judicial practice, which is often summarized in the Resolutions of the Supreme Court of the Russian Federation (SC RF). If there is evidence, collecting sanctions is not difficult. Reducing penalties and penalties for late payment under an agreement is a common practice; courts often reduce sanctions several times. But recently, debtors have been required to provide specific justifications for the reduction, and worthy and credible arguments in favor of such a decision.

ConsultantPlus experts have summarized the list of positions of higher courts to Art. 330 of the Civil Code of the Russian Federation “The concept of penalties.” Use these instructions for free.

Reduction rules

The court has the right to reduce the amount of the penalty on the basis of Art. 333 of the Civil Code of the Russian Federation, for this purpose a petition is submitted. This is one of the legal ways to prevent abuse of rights when freely determining the terms of an agreement.

A reduction is allowed only in exceptional cases in the presence of the following circumstances:

• the amount of the penalty is equal to or exceeds the amount of the principal debt;
• the sanction percentage clearly exceeds the market rate for short-term loans;
• there is reason to believe that the interested party delayed going to court in order to increase the amount of liability.

Difficult financial situation, seizure of the debtor's property, non-payment of amounts under concluded agreements or from the budget are not grounds for reduction.

An example of calculating penalties using a calculator

Rybka LLC had to pay VAT in the amount of 21,345 rubles no later than 04/25/2021. In fact, the tax was transferred only on May 31, 2021. The total period of late payment was 36 days. The key rate in force during this period was 5%.

The accountant used an online calculator, entered all the data into the required cells and received the following calculation: (21,345 rubles × 30 days × 5% / 300) + (21,345 rubles × 6 days × 5% / 150) = 149.41 rubles.

It was 149.41 rubles that Rybka LLC transferred to the Federal Tax Service on May 31, 2021, along with the amount of overdue VAT. It is important to remember that the payment slip for the payment of penalties must indicate the appropriate BCC. When paying tax arrears, a different BCC is assigned.

Accrual period

The penalty begins to accrue from the moment the delay begins, that is, from the next day after the day when the obligation under the contract should have been fulfilled. The moment of determining the end of the collection period raises many questions; it all depends on the legal relations that have developed between the parties. As a general rule, a penalty is accrued until the full fulfillment of obligations under the contract by the person who violated the terms of the agreement, regardless of the moment of termination of the agreement.

If it is determined at the legislative level or separately agreed upon by the parties that the sanction is collected from the moment of termination of the agreement or contract, the penalty is collected until this moment. Plenum of the Supreme Court No. 7 of March 24, 2016 connects the moment of termination of collection with the moment of termination of the main obligation under the contract.

If, for example, the parties have agreed that their contractual obligations cease completely upon expiration of the contract, the sanctions will be calculated based on the day that is the expiration date of the agreement. Judicial practice (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation in case No. 8171/13, which was adopted on November 12, 2013) indicates that termination of obligations to return the penalty accrued under the contract is also permissible through compensation, novation or debt forgiveness.

Norms of the Civil Code of the Russian Federation on delay

When determining whether the seller was late in delivering the goods, the customer (buyer) must take into account the following legal requirements.

According to Article 457 of the Civil Code of the Russian Federation, the period for fulfillment by the seller of the obligation to transfer the goods to the buyer is determined by the purchase and sale agreement, and if the contract does not allow this period to be determined, in accordance with the rules provided for in Article 314 of the Civil Code of the Russian Federation. At the same time, in accordance with the provisions of Law No. 44-FZ (for example, paragraph 2 of Article 42), the deadline for fulfilling obligations under the contract, including the deadline or schedule for the delivery of goods, must be determined during the procurement and indicated in the notice of procurement and in the procurement documentation.

According to Article 458 of the Civil Code of the Russian Federation, unless otherwise provided by the purchase and sale agreement, the seller’s obligation to transfer the goods to the buyer is considered fulfilled at the moment:

• delivery of the goods to the buyer or the person indicated by him, if the contract provides for the seller’s obligation to deliver the goods;
• placing the goods at the disposal of the buyer, if the goods must be transferred to the buyer or a person indicated by him at the location of the goods. The goods are considered to be placed at the disposal of the buyer when, by the time specified in the contract, the goods are ready for transfer in the appropriate place and the buyer, in accordance with the terms of the contract, is aware of the readiness of the goods for transfer. Goods are not considered ready for transfer if they are not identified for the purposes of the contract by marking or otherwise.

In cases where the seller’s obligation to deliver the goods or transfer the goods at its location to the buyer does not arise from the purchase and sale agreement, the seller’s obligation to transfer the goods to the buyer is considered fulfilled at the moment of delivery of the goods to the carrier or organization of communications for delivery to the buyer, unless otherwise provided by the agreement.

The fact of transfer of goods by the seller to the buyer (customer) must be documented, for example, in a goods acceptance certificate, delivery note or other similar document.

How to determine the interest rate

The interest rate is calculated based on the current refinancing rate. Depending on who was late and for what period, different rates apply.

If the refinancing rate changes during the period of delay, penalties are calculated separately for the days in which each rate was in effect.